HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO W.P.No.25182 of 2001 Dated: 23-11-2011 Between: Navinshah and another …Petitioners AND Munnalal Charity Trust Fund, rep. by Vijay Kumar Jaiswal, Chairman of the Trust, Hyderabad and others Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO W.P.No.25182 of 2001 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioners obtained a rule from this Court calling upon the respondents to show cause as to why a writ in the nature of certiorari shall not be issued after calling for the records in L.G.C.No.123 of 1997 on the file of Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short ‘Act’) and to quash the orders made therein dated 10.10.2001. Respondents 1 to 3 herein are the applicants before the Special Court who filed the above L.G.C. against the writ petitioners herein and others under Section 8(1) of the Act to declare them as land grabbers and to evict them from the application schedule land by delivering possession of the same to them (applicants) and to punish the petitioners herein under Section 5 of the Act for the offence of land grabbing. According to the respondents 1 to 3-applicants, the application schedule property is known as Brahmin Choultry and also known as Mustiyala Bhavan bearing premises No.4-6-146 (old No.2064) admeasuring 156 sq.yds., situated at Lala temple Street, Secunderabad. The said property originally belonged to Mustiyala family. Members of the said family created a Trust by executing a registered Trust Deed dated 16.10.1958 for the purpose of running a Sanskrit School and Veda Patashala and for providing boarding and lodging facilities for the students, who are desirous of learning Sanskrit and Vedas. The settlers of the said Trust dedicated the application schedule property for carrying on the objects of the Trust. Under the said Trust Deed, the Council of Sanskrit Education, Hyderabad was appointed as trustee for the purpose of carrying out the objects of the Trust. The Council of Sanskrit Education, Hyderabad, in turn, entrusted the application schedule property to Munnalal Charity Trust Fund (applicant No.1), first respondent herein under a registered transfer deed in the year 1983 authorising the said Trust Fund to carry out the objects of the trust as mentioned in the trust deed dated 16.10.1958 executed by the settlor. Applicant No.2-second respondent herein is the management of Munnalal Sanskrit College, which is a Sub-committee created by applicant No.1 for the purpose of imparting Sanskrit education to students by running a Sanskrit college. The Secretary of the Council of Sanskrit Education, Hyderabad filed O.P.No.534 of 1983 on the file of Chief Judge, City Civil Court, Hyderabad under Sections 72 and 77 of the Indian Trusts Act praying to discharge the Council of Sanskrit Education, Hyderabad from the Trusteeship of the application schedule property and to permit the applicants-respondents 1 to 3 herein to be the trustees in respect of the said trust for carrying out its objects. The Chief Judge by order dated 5.4.1984 allowed the said O.P. and permitted the applicants to act as the trustees of the application schedule property and thus the applicants are in possession and management of the application schedule land for the purpose of achieving the objects of the Trust as mentioned in the trust deed dated 16.10.1958. In the course of discharging the duties as trustees for running Veda Patashala and teaching of Sanskrit, the applicants permitted one V.Rama Swamy Sastry Ghanapathi, a teacher in Vedas to reside in a portion of the application schedule property free of rent to impart vedic education to students. However, the said Rama Swamy Sastry Ghanapathi violated the understanding between himself and the trustees and continued to occupy the application schedule property, which necessitated the applicants to file a suit in O.S.No.1568 of 1984 on the file of XI Assistant Judge, Secunderabad for his eviction and his son R.V.Dinamani from the premises and for recovery of possession. On contest, the said suit was decreed on 9.9.1988 and A.S.No.266 of 1988 filed by said Rama Swamy Sastry Ghanapathi was also dismissed by the additional Chief Judge, City Civil Court, Secunderabad on 30.4.1992 confirming the judgment and decree of the trial Court. Thereafter said Rama Swamy Sastry Ghanapathi unsuccessfully carried the matter in Second Appeal No.315 of 1992 which was also dismissed by this Court on 20.7.1992 giving his six months time to vacate the schedule property. Meanwhile, the applicants filed E.P.No.49 of 1992 for due execution of the decree of the trial Court. To stall the said E.P. proceedings, Rama Swamy Sastry Ghanapathi set up his own grandson M.Mallikarjuna Sarma, who filed a claim petition being E.A.No.14 of 1993 under Order 21 Rules 97, 99 and 105 read with Section 151 C.P.C. and sought for dismissal of E.P. on various untenable grounds. The said claim petition was also dismissed on 27.11.1995 after full-fledged enquiry and accordingly warrant was issued for eviction. It is alleged that having unsuccessfully resisted the execution proceedings by filing claim petition, said Rama Swamy Sastry Ghanapathi colluded with the writ petitioners herein, instigated them to grab the application schedule property and dispossess the applicants therefrom and accordingly, the writ petitioners highhandedly grabbed the property from the possession of the applicants. Hence, the L.G.C. Subsequent to filing the L.G.C., State Government was impleaded as third respondent therein and the persons who claim themselves to be the legal heirs of one of the original settlers of the trust were also impleaded as respondents 4 and 5 in the L.G.C. Contesting the L.G.C., writ petitioner No.1 herein filed a counter, which was initially adopted by petitioner No.2. But again petitioner No.2 filed a detailed additional counter which was adopted by petitioner No.1 herein. According to them, the owner of the schedule property is “Mustiyala Ramanna Govindu Trust” as per the Trust Deed executed on 21.6.1958 by the Mastiyala family. The application schedule premises known as “Brahmin Choultry” and another property situated on the banks of the River Godavari at Dharmapuri were constituted as trust properties vesting them in Mustiyala Ramanna Govindu Trust. Under the said trust deed, the Chairman and Secretary of the council of Sanskrit Education were appointed as trustees for utilization of the said trust properties for carrying out the objects of the trust. The alleged deed of transfer of trust property dated 16.11.1983 executed by Secretary of the Council of Sanskrit Education transferring the trust property to the applicants is against the terms of the trust deed dated 21.6.1958 and the interests of the trust. “Mustiyala Ramanna Govindu Trust” continues to be the owner of the trust properties. The decree in O.P.No.534 of 1983 passed on 5.4.1984 has no effect of superceding the alleged transfer deed dated 16.11.1983. As per the said decree, the Chairman and Secretary of the Council for Sanskrit Education was discharged as trustee and the applicants were permitted to act as the trustees of the Mustiyala Bhavan. Under the Trusts Act no single trustee can act in a manner detrimental or opposing the title of the trust and the trustees cannot usurp the title. The applicants ceased to be the trustees by the theory of frustration. Munnalal Sanskrit college ceased to exist even by the date of filing of O.S.No.1568 of 1984. The settlers of the trust who vested the property in the trust alone are entitled to it for the purpose of utilization of the trust property and the applicants are not entitled to maintain the application in view of the fact that there is no “Munnalal Sanskrit College” nor a management thereof is in existence. The Mustiyala Trust has merely transferred the rights of managing the trust property to the council of Sanskrit Education, Hyderabad and therefore, the Council of Sanskrit Education has no power to transfer the trust property to the applicants and therefore, the said transfer of the trust property to applicants is bad in law. They purchased the application schedule property under a valid registered sale deed bearing document No.994/1996 from one Mallikarjuna Sarma and that they have not made any illegal constructions in the said property. The applicants filed a rejoinder to the counter filed by the writ petitioners. On behalf of Government, a memo was filed stating that the Government has no claim over the property. Respondents 4 and 5, who claim to be the sons of late Mustiyala Venkaiah, one of the original settlers of the trust filed a counter inter alia contending that the applicants are not the owners of the application schedule property. On the basis of the pleadings of the respective parties, the Special Court framed the following issues for trial: (1) Whether the applicants have title to the application schedule property? (2) Whether the rival title set up by the respondents 1 and 2 is true and valid? (3) Whether the respondents 1 and 2 are land grabbers within the meaning of the Act? (4) To what relief? On behalf of the applicants, the Chairman of the Trust was examined as P.W.1 and Exs.A.1 to A.12 were marked. On behalf of the respondents therein, R.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked. The Special Court by the impugned judgment held that the applicants were duly appointed by the Court in O.P.No.534 of 1983 as trustees of Mustiyala Bhavan vesting in Mustiyala Ramanna Govindu Trust in place of Council of Sanskrit Education, Hyderabad and as such they are entitled to maintain the L.G.C. for recovering possession of the trust property held adversely by a total stranger to the trust without any manner of right. Since the applicants obtained a decree for eviction in O.S.No.1568 of 1984 against grandfather of vendor of the petitioners herein, which has become final and as the claim petition filed by the vendor of the petitioners was dismissed, the possession of the petitioners herein over the schedule property is illegal and accordingly allowed the L.G.C. Questioning the same, the present writ petition is filed. Learned counsel for the writ petitioners contends that the respondents-applicants filed O.P.No.534 of 1983 under Sections 72 and 77 of Trusts Act for discharging the Council of Sanskrit Education, Hyderabad from the trusteeship and to permit them to act as trustees in respect of the said trust for carrying out the objects and obtained the decree in collusion and therefore, the same will not confer any title on the applicants to maintain the suit. Before the Special Court P.W.1 categorically admitted that the applicants are not in possession of the property and that the writ petitioners are in possession of the same and therefore, the writ petitioners cannot be treated as land grabbers and the applicants cannot maintain the L.G.C. As the original trust- Mustiyala Ramanna Govindu Trust is not party to the O.P., the applicants will get any title over the schedule property. In support of the said contention, reliance is placed on Gouni Satya Reddi v. Govt. of A.P. and Others ((2004) 7 SCC 398). Per contra Sri L.Prabhakar Reddy, learned counsel appearing for the respondents 1 to 3-applicants contends that in the absence of any inter se dispute between the applicants and original Trust i.e. Mustiyala Ramanna Govindu Trust, non-impleadment of said Trust to the O.P. is not fatal and once the respondents-writ petitioners specifically claimed that they purchased the property under Ex.B.1, dated 7.11.1996 from one Mallikarjuna Sarma, whose claim in the E.A. has been rejected by ordering his eviction, the burden lies upon them to prove that they are not land grabbers. It is not their claim that they have purchased the property from the original trustees or from Mustiyala Ramanna Govindu Trust to claim title to the schedule property. In the absence of any document/title deed in the name of grandfather of vendor of the writ petitioner, the vendor of the writ petitioners would not acquire any title to the property particularly when the grandfather of vendor of the writ petitioners suffered a decree, which was also executed in E.P.No.49 of 1992. Therefore, the Special Court rightly declared the writ petitioners as the land grabbers and ordered for their eviction. In the light of the above submissions, the point that arises for consideration in this writ petition is ‘whether the petitioners are land grabbers within the meaning of Section 2(e) of the Land Grabbing (Prohibition) Act, and the order passed by the Special Court declaring the petitioners as land grabbers and ordering their eviction is justified or not. Section 2(d) of the Act defines the term “land grabber”, which reads thus: “ “Land grabber" means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands, rent, compensation and oilier charges by criminal intimidation; or who abets the doing of any of the above mentioned acts; and also includes the successors- in-interest;" Section 2(e) defines the expression "land grabbing", which reads as under: “"Land grabbing" means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable, institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorized structures thereon for sale or hire, or give such land to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorized structures; and the term "to grab land" shall be construed accordingly;" Admittedly, the writ petitioners are claiming title to the schedule property under Ex.B.1 sale deed dated 7.11.1996 executed by one Mallikarjuna Sarma by which date they were put in possession of the property. The respondents 1 to 3-applicants before the Special Court filed O.S.No.1568 of 1984 on the file of XI Assistant Judge, City Civil Court, Secunderabad against the grandfather of vendor of the petitioners and obtained orders for his eviction as seen under Ex.A.5, which has been confirmed by Additional Judge, City Civil Court, Secunderabad in A.S.No.266 of 1988 under Ex.A.6. This Court also confirmed the said judgment and decree in S.A.No.315 of 1992 as seen from Ex.A.7. For due execution of the decree, E.P.No.49 of 1993 was filed, in which, the vendor of the petitioners filed a claim petition being E.A.No.14 of 1993, which was also dismissed on 27.11.1995 under Ex.A.8. Admittedly, the petitioners are claiming title to the property through Ex.B.1 dated 7.11.1996 executed by their vendor- Mallikarjuna Sarma and the claim petition i.e. E.A.No.14 of 1993 filed by Mallikarjuna Sarma was dismissed on 27.11.1995. Thus the writ petitioners purchased the schedule property from their vendor- Mallikarjuna Sarma, whose claim over the property was already rejected by that date in E.A.No.14 of 1993 and therefore, the possession of the petitioners amounts to land grabbing as defined under Section 2(e) of the Act. When the vendor himself suffered a decree and his possession itself is not legal, the petitioners cannot claim better title than their vendor had. Therefore, when the petitioners are claiming the title to the property through Mallikarjuna Sarma, now they cannot turn around and put up a claim that the applicants- respondents 1 to 3 herein have no valid title to the schedule property. Further under Ex.B.1-sale deed the petitioners’ vendor stated that he is the grandson of V.Ramaswamy Sastry Ganapati, who got the schedule property from Smt. Mutyala Gyanamba, W/o. Mutyala Venkata Krishnaya, original owner. But the claim put forth by said V.Ramaswamy Sastry Ganapati has been negatived in the suit filed for his eviction in O.S.No.1568 of 1984, which was decreed in favour of applicants. Therefore, the said judgment would operates as res judicata and it is not open for the petitioners to contend that the applicants-respondents 1 to 3 herein have no title to the schedule property. Since the applicants-respondents 1 to 3 herein established that they obtained eviction orders against the grandfather of the petitioners’ vendor and executed the decree in E.P.No.49 of 1992, presumption will arise that the person, who has grabbed the land is a land grabber and the burden of proving that the land has not been grabbed by him shall be on such person as per Section 10 of the Act. The writ petitioners failed to establish that they are not the land grabbers particularly when they claimed title through Mallikarjuna Sarma, who suffered eviction order. Under these circumstances, the Special Court is justified in declaring the petitioners as land grabbers and rightly ordered for their eviction from the schedule property. No manifest illegality is discernable with the findings recorded by the Special Court warranting correction by this Court in exercise of certiorari jurisdiction. The writ petition fails and the same is accordingly dismissed. No order as to costs. _________________ (A. GOPAL REDDY, J.) _______________ (R. KANTHA RAO, J.) NOVEMBER 23, 2011 TSR