Safiya Bee vs Mohd. Vajahath Hussain @ Fasi

2. According to the appellant Safiya Bee, vide a registered Sale Deed dated 5th February, 1969, she had purchased from one Mohd. Hussain houses bearing Nos. 2-5-254, 2-5-255 and 2-5- 256 along with the appurtenant lands. The respondent Mohd. Vajahath Hussain alias Fasi forcibly occupied the house bearing No. 2-5-256 (re-numbered as 4-3-65). The building has a plinth area of 1114 sq.ft. and the appurtenant vacant land has an area of 9341 sq.ft. Alleging that the respondent is a `land grabber', the appellant filed L.G.O.P. No. 5 of 1990 under Section 7-A of the 2 Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as "the Act") before the Special Tribunal, Adilabad seeking possession of the house and the appurtenant land from the respondent. The respondent contested L.G.O.P. No. 5 of 1990 and contended that he was not a land grabber, that he, his mother and his brothers were in possession of the disputed property in their own rights under law and that they were the owners of the disputed property. He also disputed the claim of the appellant that she had purchased the property as per registered Sale Deed dated 5th February, 1969. He alleged that the registered Sale Deed was a fabricated and concocted document and that late Mohd. Hussain was not in a position to sell the property as he was not of sound mind at the relevant time. According to the respondent, the appellant did not have the financial capacity to purchase the house and there was no need for Mohd. Hussain to sell the house.

3. After considering the pleadings in the case and the evidence adduced, the Special Tribunal allowed the application on 13th June, 1997 and directed the respondent to deliver the property to the appellant. In its order dated 13th June, 1997 passed in L.G.O.P. No. 5 of 1990, the Special Tribunal held that: 3

4. Aggrieved by the order dated 13th June, 1997 of the Special Tribunal in L.G.O.P. No. 5 of 1990, the respondent filed an appeal being L.G.A. No. 30 of 1997 in the Special Court constituted under the Act. By its judgment dated 30th October, 1998, the Special Court allowed the appeal holding that the application was not maintainable before the Special Tribunal. Accordingly, the Special Court set aside the order of the Special Tribunal in L.G.O.P. No. 5 4 of 1990 and directed the Special Tribunal to return the application to the appellant herein for presentation to a proper court if so advised. In the judgment dated 30th October, 1998, the Special Court held that since the application of the appellant was in respect of a house property which was alleged to have been grabbed by the respondent, it was not maintainable before the Special Tribunal. According to the Special Court, if an existing building itself is grabbed, the same will not fall within the jurisdiction of the Special Tribunal or the Special Court and if land is grabbed and thereafter structures are raised, it may fall within the jurisdiction of the Special Tribunal or the Special Court. It was also made clear by the Special Court that in view of its decision that L.G.O.P. No. 5 of 1990 was not maintainable before the Special Tribunal, it was not going into the merits of the case.

5. Challenging the judgment dated 30th October, 1998 of the Special Court, the appellant herein filed W.P. No. 35561 of 1998 in the High Court of Andhra Pradesh. By its judgment dated 4 th July, 2000, the High Court allowed the writ petition, set aside the judgment of the Special Court and remitted the matter back to the Special Court for fresh hearing and disposal as to whether property has been grabbed by the respondent and whether he is 5 liable to be evicted delivering possession of the property to the appellant. To hold that L.G.O.P. No. 5 of 1990 was maintainable before the Special Tribunal, the High Court relied on Section 2(c) of the Act which states that land includes rights in or over land, benefits to arise out of land and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth. The High Court also pointed out that the word `land', as defined in other statutes and as decided by the High Court and the Supreme Court in similar matters, includes super-structure, building etc. unless they are excluded from the definition of `land' by a Special Act. The High Court accepted the contention of the appellant that the Act applies not only to lands but also to lands with building.

14. In the light of the above discussion, we hold that the application filed by the appellant under Section 7-A of the Act before the Special Tribunal was maintainable and that the Special 15 Tribunal had necessary jurisdiction to adjudicate the dispute raised therein.

15. In view of our finding that the application filed by the appellant before the Special Tribunal was maintainable and that the Special Tribunal had jurisdiction to adjudicate the dispute raised therein, the impugned order of the High Court is liable to be set aside and the order of the Special Tribunal and judgment of the Special Court are liable to be restored. Therefore, we consider it unnecessary to examine the correctness of the finding of the High Court that the decision of the High Court in the earlier W.P. No. 35561 of 1998 did not operate as res judicata for considering the maintainability of the application and the jurisdiction of the Special Tribunal in the later W.P. No. 304 of 2001.

18. For the reasons stated above, we allow the appeal and set aside the impugned judgment dated 18th April, 2007 in W.P. No. 304 of 2001. The order dated 13th June, 1997 of the Special Tribunal in L.G.O.P. No. 5 of 1990 and the judgment dated 16th November, 2000 of the Special Court in L.G.A. No. 30 of 1997 are upheld. The respondent is directed to deliver the petition schedule property to the appellant within a period of two months from today, failing which, the Revenue Divisional Officer concerned shall deliver the petition schedule property to the appellant within a period of two months after the expiry of the period of two months mentioned above.

December 16, 2010.