THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.Nos.13831 & 13832 of 2004 COMMON ORDER: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1 . Both the writ petitions are filed consequent upon common judgment and decree passed in L.G.C.No.22 of 1996 and 10 of 2000 dated 9.1.2004 on the file of the Special Court under Land Grabbing (Prohibition) Act (for short ‘the Special Court’). 2. The petitioner in W.P.No.13831 of 2004 is the applicant in L.G.C.No.22 of 1996 and the petitioners in W.P.No.13832 of 2004 are the applicants in L.G.C.No.10 of 2000 on the file of the Special Court. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the land grabbing cases respectively. 3. The subject matter of the property in L.G.C.No.22 of 1996 is 174 sq.yards and 172 sq.yards in Plot No.1 and Plot No.C in Sy.No.59/1 situated at S.R.Nagar, Golconda mandal, Hyderabad district and the subject matter of the property in L.G.C.No.10 of 2000 is 164 sq.yards in Sy.No.53, situated at Yousufguda village, Khairtabad mandal, Hyderabad district, the claim of the applicants is that they are the absolute owners of the said extents and the respondents occupied the properties with intention to grab the properties and hence they are to be declared as the land grabbers of the properties respectively. 4. The respondent-A.P. Housing Board filed counters in both the matters and contested the matters. It is the claim of the respondent- Housing Board in L.G.C.No.22 of 1996 that the Special Deputy Collector, Land Acquisition, Hyderabad passed an order on 10.4.1962 for acquiring Ac.60-00 of land in Survey Nos.56-A to E, 58 to 63 of Yousufguda village and Survey Nos.56-61-64 of Ameerpet village and in Survey Nos.106 and 107 of Bahloolkhanguda village and Tahsil, Hyderabad (West) district, Hyderabad, which was accordingly acquired and out of the total extent of Ac.14-03 guntas, acquired in S.No.59 of Yousufguda village, Ac.3-14 guntas of land was handed over to it (the respondent-Housing Board) on 14.4.1962 and ever since, it has been in possession and enjoyment of the land and it also constructed houses leaving 2187 sq.yards of National Highway existing therein and for colony for commercial purpose and it also constructed compound wall covering 395 sq.yards of land to safeguard the land from further encroachments, but it could not construct compound wall around the remaining 1125 sq.yards of land in view of status quo orders passed in Writ Petition No.15459 of 1991 on the file of this Court. Further it is claimed that the applicant herein has no right, title or interest in the subject property and on the other hand, he tried to grab the property, but could not succeed in doing so. 5. On the strength of the pleadings, the following issues were settled thereon fore trial: 1. Whether the applicant is the owner of the application schedule land? 2. Whether the rival title set up by the respondent is true and valid? 3. Whether the respondent perfected his title to the schedule land by adverse possession? 4. Whether the respondent is land grabber within the meaning of the Act? 5. Whether the applicant is entitled for compensation under the provisions of 8(7) of the Act? 6. To what relief? 6. Similar pleas were taken with reference to the subject property in L.G.C.No.10 of 2000 by the respondents. In that case, the following issues were settled for trial: 1. Whether the applicant has title to the application schedule property? 2. Whether the rival title set up by the respondent is true, valid and binding? 3. Whether the respondent is a land grabber within the meaning of Act XII of 1982? 4. To what relief? 7. For the applicant in LG.C.No.22 of 1996, he got examined himself as P.W.1 besides examining P.W.2, son of his vendor P.W.2 and got marked Exs.A1 to A22 and further on behalf of the contested respondent therein, R.W.1 was examined and Exs.B1 to B15 were marked. 8. In L.G.C.No.10 of 2000 as per the record, the applicant therein got examined himself as P.W.1 besides examining P.W.2 and got marked Exs.A1 to A11 and further on behalf of the respondent therein, none was examined and no documents were marked. 9. It is the observation of Special Court that the land covered by Sy.No.59 is Acs.14-03 guntas whereas an extent of Ac.3-14 guntas was acquired for the respondent-Housing Board and after deducting that Ac.3-14 guntas out of Ac.14-03 guntas, there remains an extent of Ac.10- 29 guntas of land and as per the relevant pahani, it has to be divided by seven members of the family of the vendors of the applicant and P.W.2’s father got only 1/7th share in the remaining land, which is not localised. Further, the applicant claims that the respondent has been in the possession of Ac.4-26 guntas of land and after deducting that Ac.4-26 guntas of land out of Ac.14-03 guntas, there remains an extent of Ac.9-17 guntas, out of which P.W.2’s father got only 1/7th share, but P.W.1 failed to place any documentary evidence to the effect that the Government occupied Ac.4-26 guntas of excess land in that survey number, whereas he also failed to produce any documentary evidence with regards to the sub-division of the survey number. Taking into consideration the evidence adduced, the Special Court dismissed both the L.G.Cs. on the ground mainly that the identity of the properties was not established, by reason of which, the present writ petitions are filed. 10. It is the contention of learned counsel for the applicant that in fact there is ample evidence with regards to the identity of the properties, and the Special Court failed to appreciate the matter properly. 11. Therefore, it has to be decided as to; (1) Whether the applicants placed sufficient evidence with regards to the identity of the properties? (2) Whether ample evidence was placed with regards to the plea of grabbing the properties by the respondents? (3) Whether the Special Court examined the matter properly and arrived at correct findings and the judgments and decrees passed by it are sustainable or not? 12. P.W.1 (the applicant) in L.G.C.No.22 of 1996 deposed in accordance with the pleas taken by him in the case marking Exs.A1 to A6, which are registration extracts of sale deed and gift deed, certified copy of order in W.P.No.7384 of 1983 dated 12.3.1986, under which this Court quashed land acquisition notification dated 24.11.1982 issued by the District Collector, Hyderabad certified copy of order in W.P.Nos.12127 and 13183 of 1988 dated 8.11.1988 under which this Court quashed proceedings dated 20.3.1988 issued by the Municipal Corporation of Hyderabad in Case No.299/UCD/B/86 filed by him (P.W.1) directing him to safeguard his land and certified copy of ad- interim injunction in I.A.No.488 of 1991 in O.S.No.2849 of 1991 on the file of the Court of V Assistant Judge, City Civil Court, Hyderabad filed against the respondent No.2 and others. 13. It is admitted by P.W.1 in his cross-examination that the boundaries given in the schedule for the land are quite different from the boundaries given for the properties covered by Exs.A1 and A2. It is pertinent to note here that whereas the original of Ex.A1 is claimed to be executed in the year 1977 and the original of Ex.A2 is claimed to be executed in the year 1990, both the originals are not filed. On the other hand, P.W.1 in his cross-examination deposed that he lost the original of Ex.A1 and he did not file any link documents of his vendor and he also did not file any link documents of the donor under the original of Ex.A2 and further he admitted in his cross-examination that the Government acquired the applicant schedule land along with adjacent land and handed over the same to the Housing Board, which constructed houses known as Sanjeeva Reddy Nagar therein. However, he immediately deposed that the Government acquired Ac.3-14 guntas of land out of Ac.14-03 guntas of land in Sy.No.59 of Yousufguda village and then he also denied that the Government acquired the said lands. According to him, the land acquired by the Government is known as Lambadi Basthi/Bapu Nagar. Later he also deposed that the extent of Ac.14-03 guntas of land was acquired under slum improvement programme known as Lambadi Basthi while ascertaining that the application schedule land was situated adjacent to the Lambadi Basthi. He denied that he got no rights over the schedule lands and the Housing Board did not encroach upon his property. 14. Emphatically P.W.1 failed to establish the identity of the items claimed by him, because the boundaries given in the schedule for the items are quite different from the boundaries given in Exs.A1 and A2. It is his duty to place satisfactory evidence to ascertain the identity of the properties and for not doing so, an adverse inference is to be drawn. It is also emphatical that it is admitted by him that the total extent in Survey No.59 is Ac.14-03 guntas, out of which the Government acquired Ac.3-14 guntas at first On the other hand, P.W.2 deposed that his father sold the first item i.e. 174 sq.yards of site to P.W.2 prior to the acquisition of land by the Government. If that is true, for any acquisition of the land, the Government would have issued relevant notice to the father of P.W.2, but there is no evidence to that effect, for which adverse inference is to be drawn. 15. On the other hand, R.W.1, the Assistant Engineer, working in the respondent-Housing Board deposed in accordance with the pleas taken by the respondent. According to him, the total extent of land in Survey No.59 is Ac.14-03 guntas, out of which Ac.3-14 guntas was handed over to the respondent-Board on 14.4.1962 and ever since, the respondent- board has been in possession and enjoyment of the property and further it is admitted by him that the remaining extent of Ac.10-29 guntas in Survey No.59 was not acquired by the Government. Therefore, it is not correct what is deposed by P.W.1 that the remaining extent of land was also acquired by the Government. Further, he also deposed that the Deputy Director of Survey and Land Records, Hyderabad district was appointed as Commissioner by the Special Court for localising the schedule property and filing his report and accordingly, he complied with the directions and his report would provide that the petition schedule property happened to be a part of the land acquired by the Government. Further, through him Exs.B1 to B15 i.e. attested copy of gazette notification, certified copy of award dated 10.4.1962, certified copy of changed plan dated 14.4.1962, copy of survey plan, attested copy of layout, original layout plan of S.R.Nagar, part of layout and detailed plan showing the application schedule land, certified copy of injunction order in I.A.No.601 of 1993 in O.S.No.1888 of 1993 dated 27.6.1993, certified copies of judgment and decree in O.S.No.1888 of 1993 dated 11.10.1995, certified copy of D.O. letter addressed to the District Collector for furnishing sub-division records dated 13.3.2001, letter marked to the Vice Chairman, A.P. Housing Board regarding supply of sub-division records dated 19.3.2001, letter addressed to the L.A.O., A.P. Housing Board dated 16.2.2002 and letter addressed to the Deputy Director, Survey and Land Records dated 9.3.2002 were marked. 16. The evidence of R.W.1 coupled with the documents marked clearly establishes that during 1961/G2 itself the acquisition of total land took place. Therefore, the conveyance of the first item and also gift of the second item prove to be quite subsequent to the land acquisition proceedings. Further, even though according to P.W.1 the Deputy Director of Survey and Land Records inspected the property and filed his report and plan as directed by the Special Court, those documents were not filed before the Special Court and therefore the same cannot be taken into consideration. However, when the identity of the property is not established by P.W.1, the same lacunae need not be taken seriously. 17. It is significant to note here that as per the pahanies marked, (7) family members of the vendors got rights over the property, therefore 1/7th share of father of P.W.2 is to be localised in the total extent, which has not been done. Therefore, P.W.1 is not entitled to grant decree as prayed for by him. 18. So far as the other L.G.C. is concerned even though it is mentioned in Judgement of the Special Court that two witnesses including the applicant therein were examined as P.Ws.1 and 2 and documents were marked, the same were not examined by the learned Presiding Officer of the Special Court but ultimately held that the applicant therein failed to establish his claim which therefore is not tenable. Further, the depositions of PWs. 1 and 2 and so also the exhibits said to be marked are not available in the record. It is represented that those records said to be destroyed. Therefore, there is no basis to dispose of the Writ Petition. Further, it is the duty of the Special Court to consider the evidence recorded in the case and dispose of the case on merits. Hence, the matter is to be remanded to the Special Court for disposal according to law taking necessary measures with regards to the relevant record. 19. In the result, the Writ Petition No.13831 of 2004 is dismissed and Writ Petition No.13832 of 2004 is allowed and the Judgement and decree passed in L.G.C. No.10 of 2000 are set aside and the matter is remanded to the Special Court for disposal, according to law, in the light of the observations made above. ______________ V.ESWARAIAH, J ________________________ G.KRISHNA MOHAN REDDY, J Date: 29.10.2011 DA