DR.KAZIMUNNISA (DEAD) BY L.R.  versus ZAKIA SULTANA (DEAD) BY L.R.& ORS.
[2017] 11 S.C.R. 1019, Supreme Court of India, 2017
Outcome: Case Partly allowed (Granted)
Segment: Ratio
[2017] 11 S.C.R.1019 
DR.KAZIMUNNISA (DEAD) BY L.R. 
A 
v 
ZAKIA SULTANA (DEAD) BY L.R.& ORS. 
(Civil Appeal Nos. 18783-18784 of 2017) 
B 
NOVEMBER 15, 2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] 
The Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 
C 
- s.8 - Two cases filed by the respondents, one in 1998 against the 
appellant with District Collector and Special Officer, Land Ceiling 
also as parties and the other in 2004, only against the appellant 
before Special Court claiming possession of a portion of the suit 
land occupied by appellant - Special Court dismissed the case filed D 
· in 1998, however, allowed the one filed in 2004 holding that 
respondents were the owners of the portion of the suit land which 
was in possession of the appellant - Writ petitions u!Art.227 filed 
by both, the appellant and ihe respondents - High Court allowed 
the writ petition filed by respondents while dismissed the one filed 
by the appellant - On appeal, held: Admittedly, when two cases E 
arising between the same parties and in relation to the same piece 
of suit land were filed for grant of identical reliefs then both the 
cases should have been clubbed together, u/Or. II, r.3, of the Code, 
to avoid any conflicting decision in both the cases - Further, though 
the District Collector filed his counter affidavit in the 1998 case 
F 
not only denying the respondents' title but also pointing out as to 
who was the original owner of the suit land, no counter affidavit 
was
filed in the 2004 case since District Collector was not made a 
party in the said case resulting in passing of conflicting decisions 
on the same set of facts and evidence - Impugned judgment set 
aside - Both the cases remanded to Special Court for their disposal G 
afresh on merits after club/Jing them together - District Collector 
and the Special Officer, Urban Land Ceiling, Hyderabad also to be 
made party in the 2004 case - Parties to contest the case before the 
Special Court de novo on merits - Code of Civil Procedure, 1908 -
Or. II, r.3 - Constitution of India - Art.227. 
H 
1019
1020 
SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A 
Partly allowing the appeals, the Court 
B 
c 
HELD: 1.1 Both the cases in question, i.e. (L.G.C. Nos.41/ 
1994 and 50/2004) are remanded to Special Court for their 
disposal afresh on merits in accordance with law. The need to 
remand both the LGCs to the Special Court is considered 
necessary due to the following reasons. First, it is found that the 
trial of the two cases before the Special Court was not satisfactory 
inasmuch as when admittedly the two LGCs arising between the 
same parties and in relation to the same piece of suit land were 
filed for grant of identical reliefs under The Andhra Pradesh Land 
Grabbing (Prohibition) Act, 1982 then, 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. 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 
D 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. [Paras 25-28] [1025-G-
H; 1026-A-D] 
E 
1.2 Indeed, this was an appropriate case where the 
provisions of Order II Rule 3 of the Code of Civil Procedure, 
1908, 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 
F 
Order II Rule 3 of the Code. Second, it is found 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, 
G both the State authorities were not made parties for the reasons 
best known to the respondents. 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 as also the Courts below overlooked 
this aspect though material for the proper disposal of both the 
H cases. Third, it is found that though the District Collector filed
DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA 
1021 
(DEAD) BY L.R.& ORS. 
his counter affidavit in first case (LGC No.41/1994) in which he A 
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. Similarly, 
no counter affidavit was filed in second case (LGC 50/2004) by 
B 
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. This 
was neither noticed by the Special Court nor High Court which 
resulted in recording reverse finding on the same set of facts 
and evidence. Lastly, it is found that the High Court while C 
reversing the findings of the Special Court decided the writ 
petition under Article 227 of Constitution of India 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. [Paras 29-36] 
D 
[1026-E-H; 1027-A-DJ 
1.3 The two newly added non-applicants in LGC No. 50/ 
2004 are afforded an opportunity to file their counter affidavits in 
LGC No.50/2004. All the parties in both the cases are also afforded 
an opportunity to amend their
pleadings in case, if they so consider 
it proper and also file any additional evidence both oral and 
documentary in addition to what has already been filed in support 
of their respective case, if they so desire to file. After completion 
of the pleadings, if considered necessary, the Court may also 
frame additional issues or/and recast the issues already framed 
and then decide both the cases by common judgment. [Paras 40-
42] [1028-A-C] 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 18783-
18784of2017. 
From the Judgment and Order dated 17 .09 .2014 of the High Court 
of Judicature at Hyderabad for the State of Telangana and the State of 
Andhra Pradesh in Writ Petition No. 15055 of 2004 and Writ Petition 
No. 27567 of2008. 
E 
F 
G 
H
1022 
SUPREME COURT REPORTS 
[2017] l l S.C.R. 
A 
Huzefa Ahmadi, Basava Prabhu Patil, Shanti Bhushan, Sr. Ad vs, 
WajidAli Kami!, Ejaz Maqbool, Mrigank Prabhakar, C. George Thomas, 
Rohan Sharma, Pranab Kumar Mullick, Ms. Soma Mullick, Yaidaiah 
Jetti, Sebat Kumar Deuria, Kartik Seth, Riddhi Bose, P. Venkat Reddy, 
Prashant Tyagi (for M/s.Venkat Palwai Law Associates), Advs for the 
B appearing parties. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. I. Leave granted. 
2. These appeals are filed against the final judgment and order 
dated 17.09.2014 passed by the High Court of Judicature at Hyderabad 
C for the State of Telangana and the State of Andhra Pradesh in Writ 
Petition No. 15055 of2004 and Writ Petition No. 27567 of2008 whereby 
the Division Bench allowed Writ Petition No.15055 of2004 by reversing 
the judgment dated 16.06.2004 of the Special Court in LGC No.41 of 
1998 and dismissed Writ Petition No. 27567 of 2008 while confirming 
D the judgment dated 23.10.2008 of the Special Court in LGC No.50 of 
2004. 
3. In order to appreciate the issues involved in these two appeals, 
few relevant facts need mention. 
4. The dispute in these appeals relate to land bearing old Survey 
E 
No. 129 (new Survey No. 358), T.S. Nos.1/3 and 5/3 situated at Banjara 
Hills, Hyderabad (hereinafter referred to as the "suit land"). 
5. The questions, which broadly fall for consideration in these 
appeals are, first, who is/are the owner(s) of the suit land and, if
so, on 
what basis and of which portion and for how much area; Second, who 
F 
is/are in possession of the suit land and of how much area and of which 
portion and since when and whether their possession has been legal on 
such area and, if so, its basis and whether they or any of them have, at 
any point of time, encroached upon any parcel of suit land to the detriment 
of its owner's interest and, if so, to what extent, they encroached and 
since when? 
G 
6. These questions have to be decided in the light of the relevant 
provisions of The Andhra Pradesh Land Grabbing (Prohibition) Act, 
1982(hereinafter referred to as "the Act"). 
7. Two cases were filed by the respondents through power of 
H attorney holder against the appellant herein before the Special Court
DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA 
1023 
(DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.] 
under Section 8 of the Act for claiming possession of the portion of the 
A 
suit land. 
8. One case was filed on 02.01.1998, i.e., (LGC No.41/1998) 
whereas the other was filed on 15.04.2004,i.e.,(LGC No.50/2004). So 
far as LGC No. 50/2004 is concerned, it was filed two months prior to 
the disposal of first case, i.e., LGC No. 4111998. 
B 
9. So far as LGC No.4111998 is concerned, it was filed against 
Kazimmunisa (since dead and now represented by her legal 
representative-appellant herein) as non-applicant No. 1, District Collector, 
Ranga Reddy District as non applicant No. 2 and the Special 
Officer.Urban Land Ceiling, Hyderabad as non applicant No. 3. 
c 
10. So far as LGC No. 50/2004 is concerned, it was filed only 
against Kazimmunisa and her family member as non-applicant No. 1 
(now represented by her legal representative). 
11. In other words, in LGC No.50/2004, District Collector, Ranga 
Reddy Dist. and Special Officer, Urban Land Ceiling, Hyderabad were D 
not imp leaded as non-applicants though both these State authorities were 
impleaded in LGC No. 4111998 as non-applicant Nos. 2 and 3. 
12. Sq far as LGC No. 4111998 is concerned, the application was 
founded on the allegations that the respondents are the owners of the 
suit land. The respondents, in support of their claim of ownership over E 
the suit land traced their title through some documents of title
of their 
predecessor-in-title, entries in the revenue records and other documentary 
evidence and on the basis of these documents,. alleged that their title 
over the suit land including portion of the suit land is primafacie established 
as against the appellant. 
13. The respondents then alleged that the original appellant herein 
(non-applicant No. 1 in the case) illegally and without any lawful title 
and authority has encroached upon a portion of the suit land of which 
F 
the respondents are the owners and hence under the provisions of the 
Act, the respondents have become entitled to claim possession of the 
G 
illegally encroached portion of the suit land from the appellant which 
essentially belonged to them. 
14. The appellant (non-applicant No. 1) denied the respondents' 
case and contended that, firstly, the respondents are not the owners of 
the portion of the suit land; Secondly and on the other hand, the appellant H
1024 
A 
B 
SUPREME COURT REPORTS 
[2017] ll S.C.R. 
is the lawful owner of portion of the suit land; Thirdly, the appehant has 
been in lawful possession of the said portion of the suit land as owner 
thereof; Fourthly, the appellant has not encroached upon any portion of 
the suit land as alleged by the respondents. The appellant( non-applicant 
No. l ), in support of her case, also filed documents of title, revenue entries 
and other documents. 
15. So far as the District Collector (non-applicant No. 2) is 
concerned, he also filed the written statement( counter affidavit) on behalf 
of the State. He also denied the respondents' claim including the 
respondents' title over the suit land. He found fault in the title traced by 
C the respondents' over the suit land and contended that the respondents 
have not been able to establish their prima facie title over the suit land. 
He then alleged that the Government record does not support the 
respondents' case and nor the facts stated in the application by the 
respondents tracing their title tally with the Government's record. 
D 
E 
16. Parties then adduced evidence. The Special Court, by order 
16.06.2004, dismissed the respondents' application finding no merit 
therein. 
17. So far as LGC No. 50/2004 is concerned, it was in relation to 
another portion of the same suit land. This application was also based on 
somewhat identical averments on which LGC No. 41/1998 was founded 
for claiming relief therein. The respondents,
as mentioned above in LGC 
50/2004, impleaded only the original appellant as non-applicant No. I but 
neither impleaded the District Collector nor the Special Officer Urban 
Land Ceiling, Hyderabad as non-applicant along with the appellant. 
18. The original appellant herein filed written statement in (LGC 
F No. 50/2004) and denied the respondents' claim. She took the same 
defense, which she had taken in LGC No. 4111994 to prove herownership 
over the portion of the suit land. She also raised the plea of Order 2 Rule 
2 of the Code of Civil Procedure 1908 (hereinafter referred to as "the 
Code") and also raised the plea of limitation. 
G 
19. By order dated 23.10.2008, the Special Court allowed this 
H 
application (LGC No.50/2004) and held that the applicants( respondents 
herein) are primafacie the owners of the portion of the suit land, which 
has been in possession of the appellant. It was held that the original 
appellant herein was neither able to rebut the case of respondents as per 
Section I 0 of the Act by proving their primafacie legal title over the suit
DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA 
I 025 
(DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.] 
land nor legal possession over the portion of the suit land and, therefore, 
A 
she is held as "Jarid grabber" in relation to the land in her possession 
under the Act and, hence, she is liable to restore the portion of the suit 
land which is held to be in her illegal possession to the 
applicants(respondents herein). 
20. The appeJlant, felt aggrieved of the judgment of the Special 
B 
Court dated 23.10.2008 passed in LGC No.50/2004, filed writ petition 
under Article 227 of the Constitution of India whereas the respondents 
felt aggrieved of the order dated 16.04.2004 passed in LGC No. 41/ 
1994 also filed writ petition in the High Court. 
21. The High Court clubbed both the writ petitions. By common 
C 
impugned judgment, the High Court aJlowed the writ petition filed by the 
respondents, set aside the judgment dated 16.04.2004 passed in LGC 
No.4111994 and, in consequence, alJowed their application and, in 
consequence, dismissed the writ petition filed by the appelJant against 
the judgment dated 23.10.2008 passed in LGC No. 50/2004 and affirmed 
the judgment of Special Court dated 23. l 0.2008. 
D 
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 appeJlant stand decreed in relation to the respective suit land involved 
in both the applications and the original appelJant 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 chalJenged 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. 
E 
F 
25. Having heard the learned senior counsel for the parties at 
G 
length and on perusal of their written submissions and the record of the 
case, we are inclined to alJow 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 Jaw as indicated below. 
H
1026 
SUPREME COURT REPORTS 
[2017] ll S.C.R. 
A 
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 
B (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. 
C 
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 
D 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 
E 
the attributes of Order II Rule 3 of the Code. 
30. Second, we find that the
case which was filed 
first,i.e.,(L.GC.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.SO/ 
F 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. 501 
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 
G 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 
H nor the District Collector adduced any evidence to prove the averments.
DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA 
1027 
(DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.] 
33. Similarly, no counter affidavit was filed in second case (LGC 
A 
. 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 
B 
and evidence. 
' 
35. Fourth, we also find that the issue of maintainability of 
application and also issue oflimitation in filing the two applications by 
the respondents under the Act should also have been decided along with 
other issues. 
C 
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 D 
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 
E 
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. 
F 
G 
39. In view of foregoing discussion, the appeals succeed and are 
11llowed in part. The impugned judgment as also that of the Special Court 
are set aside. 
40. As a consequence, both the cases, i.e., LGC Nos.4111994 and 
50/2004 are restored to their respective files before the Special Court. It H
1028 
A 
B 
c 
SUPREME COURT REPORTS 
[20171 11 s. C.R. 
is directed that both the cases be clubbed together for their disposal on 
merits. It is further directed that the District Collector and the Special 
Officer, Urban Land Ceiling, Hyderabad would also be made party in 
LGC No.50/2004 as non-applicant Nos. 2 and 3 respectively. These two 
newly added non-applicants in LGC No. 50/2004 are afforded an 
opportunity to file their counter affidavits in LGC No.50/2004. 
41. All the parties in both the cases are also afforded an opportunity 
to amend their pleadings in case, if they so consider it proper and also 
file any additional evidence both oral and documentary in addition to 
what has already been filed in support of their respective case, if they so 
desire to file. 
42. After completion of the pleadings, if considered necessary, 
the Court may also frame additional issues or/and recast the issues already 
framed and then decide both the cases by, common judgment. 
43. As mentioned above, the cases in question arise out of the Act 
D and hence the factual and legal findings have.to be rendered keeping in 
view the relevant provisions of the Act as interpreted by this Court in 
decided cases cited by the learned counsel in support of their contentions. 
44. We, however, make it clear that we have not expressed any 
opinion on the merits of the case and nor recorded any finding on the 
E merits of the controversy. The Special Court would, therefore, decide 
both the
cases strictly in accordance with law on merits without making 
any reference to the order of the Special Court and High Court and 
uninfluenced by any observations made by this Court, High Court and 
Special Court, in any of their judgments. 
F 
Divya Pandey 
Appeals panly allowed.