Case: Dr. Kazimunnisa (Dead) By L.R Vs. Zakia Sultana (Dead) By L.R.&amp; Others

petition filed by the appellant against the judgment dated 23.10.2008 passed in LGC No. 50/2004 and affirmed the judgment of Special Court dated 23.10.2008. 22) The effect of the impugned judgment of the High Court is that both LGCs, i.e., 41/1994 and 50/2004 filed by the respondents against the appellant stand decreed in relation to the respective suit land involved in both the applications and the original appellant herein has to restore the possession of the portion of the suit lands which is in her possession to the respondents. 23) Felt aggrieved, the original appellant has challenged the impugned common judgment of the High Court by way of appeal by special leave before this Court. 24) Heard Mr. Huzefa Ahmadi, learned senior counsel for the appellant and Mr. Basava Prabhu Patil, learned senior counsel for respondent Nos.3,7 and 8, Mr. Shanti Bhushan, learned senior counsel for respondent No.2 and Mr. P. Venkat Reddy, learned counsel for respondent Nos.4 & 5. 25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below. 26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons. 27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases. 28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders - one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case. 29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code. 30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made parties -non-applicants by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents. 31) In our opinion, these two State authorities should also have been arrayed as non-applicants in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases. 32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments. 33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases. 34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence. 35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues. 36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court. 37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition. 38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits. 39)

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting ordersone was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made partiess by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents31) In our opinion, these two State authorities should also have been arrayed ass in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits.