TaxTMI 
TaxTMI 
2002 (1) TMI 1319
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....in Survey Nos. 9/15 Paiki, 9/16, and 9/17 of Khairathabad Village, Golconda Mandal, Hyderabad District (for short, 'the land in dispute') and directed the appellant to restore possession of that land to the first respondent in terms of the decree. 2. To comprehend the controversy in the appeal it would be appropriate to set out the relevant facts. The appellant traces his title to the land in dispute under an unregistered agreement for perpetual lease executed by one of the successors of the Inamdar, Mohd. Noorudin Asrari, in respect of the Inam land in Survey Nos. 9/15, 9/16, 9/17 and 9/18, on November 28, 1954 (Ex.B-39). Later the said Asrari executed a registered perpetual lease deed in favour of the appellant on December 11, 1957 (a certified copy is marked as Ex.B-40). Soon thereafter one Rasheed Shahpurji Chenoy had set up a rival claim to the land in dispute by filing Original Suit No. 13 of 1958, in the Court of the Additional Chief Judge, City Civil Court. Hyderabad, against the first respondent, the appellant and others praying for declaration of title to and recovery of possession of the said land. In that suit the learned Additional Chief Judge passed an inte....
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....ernment could not decide unilaterally in its own favour and resort to summary eviction proceedings under the Andhra Pradesh land Encroachment Act, 1905 (for short, 'the Land Encroachment Act') and dismissed the Writ Appeal on November 14, 1983 (Ex.A-4). The appellant again filed Writ Petition 15724 of 1984 apprehending his dispossession from the land in dispute. On June 16, 1986, a learned Single Judge of the High Court disposed of the Writ Petition taking note of the observations of the Division Bench in the said Writ Appeal and the fact that the first respondent had filed, O.S. No. 1497 of 1985 in the Court of the IV Additional Judge, City Civil Court, Hyderabad for declaration of title and recovery of possession of land in dispute on November 25, 1985. 5. In view of the provisions of Sub-section (8) of Section 8 of the Act, the said suit of the first respondent was transferred to the Special Court form the Court of the IV Additional Judge. Though the order of the transfer of the suit was challenged by the appellant in the High Court by filing civil revision petition, it was later dismissed as not pressed. Be that as it may, the first respondent filed an application in....
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....he said questions were found against him by the Special Court, submitted Mr. Ahmad, the appellant could not be permitted to challenge the jurisdiction of the Special Court and they, being the findings of fact, are not open to challenge in appeal filed under Article 136 of the Constitution. 8. These contentions can conveniently be dealt with together. 9. On the contentions, urged before us, we find that the Special Court framed Issue Nos. 3, 5 and 6 which are as follows: "(3) Whether this Court has jurisdiction to entertain the suit as it raises bona fide dispute of title? (5) Whether the respondent perfected title by adverse possession? (6) Whether the respondent is a land grabber within the meaning of the Act?" 10. It was held on those issues that the Special Court had jurisdiction to try the case: the appellant did not prescribe title by adverse possession and that the appellant was a land grabber. The findings recorded by the Special Court were approved by the High Court in the writ petition filed by the appellant. The correctness of those findings are assailed in this appeal. 11. Before proceeding further, it is appropriate to determine th....
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....d with impunity. The Act constituted a Special Court, having both the civil and criminal jurisdiction which consists of a serving or retired Judge of a High Court (Chairman) a serving or retired District Judge and a serving or retired Civil Servant not below the rank of a District Collector (as members) to entertain the cases in which the magnitude of the evil needs immediate eradication so as to avoid duplication and to further the cause of justice. The Court of the District Judge having jurisdiction over the area including Chief Judge. City Civil Court, Hyderabad, is constituted as a Special Tribunal to try cases of which cognizance was not taken by the Special Court in regard to any alleged act of land grabbing or with respect to ownership and title to or lawful possession of the land grabbed on or after the commencement of the Act. Against any judgment or order of the Special Tribunal (not being interlocutory order) an appeal is provided to the Special Court on questions of both law and fact. The Special Tribunal has only civil jurisdiction and the Code of Civil Procedure is applicable to the proceedings before it whereas the Special Court has both the civil as well as the crim....
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....thousand rupees. Likewise Section 5 of the Act provides penalty for other offences in connection with land grabbing. Offences by companies fall within the ambit of the Act as provided in Section 6 of the Act. 15. It will be useful to read Sections 7 to 10 of the Act which deal with the Special Court insofar as they are relevant for the present discussion. They are as under: "7. Constitution of Special Courts:- (1) The Government may, for the purpose of providing speedy enquiry into any alleged act of land grabbing and trial of cases in respect of the ownership and title to or lawful possession of the land grabbed, by notification, in constitute a Special Court. (2) to (5C) *** *** *** (5D)(i) Notwithstanding anything in the Code of Civil Procedure, 1908 (V of 1908) the Special Court may follow its own procedure which shall not be inconsistent with principles of natural justice and fair play and subject to the other provisions of this Act and of any rules made thereunder while deciding the Civil liability. (5D)(ii) to (6) *** *** *** 8. Procedure and powers of the Special Court: (1) The Special Court may, either suo m....
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....thin the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. the evidence admitted during the criminal proceeding may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceeding shall not be considered by the Special Court while determining the criminal liability. Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence or oath in disproof of the charge made against him or any person charged together with his in the criminal proceeding: Provided that he shall not be called as a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the Special Court or give rise to any presumption against himself or any person charged together with him at the same proceeding. (3) to (5) *** *** *** (6) Every finding of the Special Court with regard to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons....
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....te person the Special Court or as the case may be the Special Tribunal shall presume that the person who is alleged to have 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." 16. Section 7 of the Act envisages constitution of Special Courts. Sub-section (1) of Section 7 enables the Government to constitute a Special Court for the purpose of providing speedy enquiry into any alleged act of land grabbing and trial of cases in respect of the ownership and title to, or lawful possession of the land "grabbed" which in the context includes "alleged to have been grabbed". Clause (1) of Sub-section (5D) enables the Special Court to follow its own procedure which shall not be inconsistent with the principles of natural justice and fair play subject, of course, to the other provisions of the Act and the Rules made thereunder while deciding the civil liability, Clause (ii) of Sub-section (5D) of Section 7 provides that notwithstanding anything contained in Section 260 or Section 262 of the Code of Criminal Procedure, 1973 every offence, punishable under this Act, shall be tried in summary way and the revisions of....
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....thing in the Code of Criminal Procedure, 1973, it shall be lawful for the Special Court to try all offences punishable under this Act. It is left to the Special Court to determine the order in which the civil and criminal liability against a land grabber be initiated. Sub-section (6) provides that every finding of the Special Court with regard to any alleged act of land grabbing shall be conclusive proof of the fact of the land grabbing and of the persons who committed such land grabbing and every judgment of the Special Court with regard to determination of title and ownership to, or lawful possession of, any land alleged to have been grabbed, shall be binding on all persons having interest in such land. It contains three provisos but they are not relevant for the present discussion. Sub-section (8) brings about automatic transfer of any case pending before any court or authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of the Special Court if the cause of action on which such suit or proceedings is based, has arisen after the constitution of the Special Court. The provisions of Sub-section (2) of Section 8 which commences ....
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....tional Judge, City Civil Court, Hyderabad, was transferred to the Special Court in view of the provisions of Sub-section (8) of Section 8 of the Act. The order transferring the case from the Civil Court to the Special court was assailed by the appellant in the High Court in a civil revision petition which was later dismissed as not pressed. Irrespective of the answer to the question whether the order of transfer of the said suit from the Civil Court to the Special Court operates as issue estoppel or not, it is plain that the validity of the order of transfer of the suit from the Civil Court to the Special Court was not urged before the High Court in the writ petition (filed to challenge the judgment of the Special Court), out of which this appeal arises, so the transfer of the suit cannot be allowed to be challenged in this appeal. Be that as it may, the following facts disclose that de hors the transfer of the suit, the jurisdiction of the Special Court was invoked by the first respondent under the Act. 21. The first respondent filed petition under Sub-section (1) of the Section 7 read with Sub-section (1) of Section 8 of the Act before the Special Court on March 20, 1992 compl....
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.... Special Court A.P. Land Grabbing (Prohibition) Act Hyderbad." 22. In response to the said notice the appellant filed his objections on April 10, 1992. He denied the allegation of land grabbing but did not object to the jurisdiction of the Special Court. After considering the objections, filed by the appellant, to the Special Court taking cognizance of the case numbered as L.G.C. No. 61/90, the case was decided on the evidence adduced by the parties before the Special Court. 23. In this context the following submission, pressed by Mr. Parasaran, may be considered here. He argued that the High Court in the Writ Petition filed by the appellant challenging the validity of the notice of eviction under the Land Encroachment Act, gave liberty to the first respondent to establish its title in Civil Court, which was also confirmed by the Division Bench in the writ appeal filed by the first respondent; although before the date of the disposal of the writ appeal the Act had come into force on September 6, 1982, the first respondent did not seek liberty from the court to approach the Special Court, therefore, on the principle of "might and ought" he was barred fr....
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....oceeding to renew the same claim viz., that the properties in question were properties of the respondents liable to attachment or, as he would now put it, that the respondents had severable interests in the properties which are liable to attachment, merely because he neglected at the proper stage in previous proceedings to support that claim by an argument of which he now wishes to avail himself." It may be noticed that in that case there was final determination of the rights of the parties in the first execution petition in which the plea of executability of the decree against the right, title and interest of the respondents by virtue of Act of 1938 was available but was not urged. In the instant case, there has been no final determination of the rights of the parties in regard to their title to the land in dispute in the writ proceeding. 25. The principle that to attract the provisions of Section 11, C.P.C., there must be a final adjudication of the matter between the parties in earlier suit or proceeding is too well-settled to need elaboration. The same principle applies to constructive res judicata. In Kewal Singh v. Lajwanti [1980]1SCR854 this Court held: "[A]s ....
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....ciple of constructive res judicata,on the ground that the fact of enforcement of the Act on September 6, 1982 was not brought to the notice of the Division Bench of the High Court at the time of disposal of the Writ Appeal, is not available to the appellant. Further, as a statutory right is created in favour of the State under the Act, to eradicate a public mischief, it cannot be precluded from having recourse to the provisions of the Act by operation of the principle of "might and ought" in Explanation IV of Section 11 C.P.C. when its title or interest had not been finally determined by the High Court. For these reasons, we cannot accept the contention of the learned senior counsel. 27. The upshot of the above discussion is that the Special Court is a Civil Court having original as well as appellate jurisdiction having all the trappings of a Civil Court and also a Criminal Court having powers of the Court of Sessions to which the provisions of the Code of Civil Procedure, the A.P. Civil Courts Act and the Code of Criminal Procedure, apply. The Special Court can take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership....
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....onstruct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorised structures: and the terms "to grab land" shall be construed accordingly;" 30. A perusal of Clause (d) shows that the expression "land grabber" takes in its fold : (1) a person or a group of persons who commits land grabbing; (2) a person who gives financial aid to any person for (a) taking illegal possession of the lands, or (b) construction of unauthorised structures thereon; (3) a person who collects or attempts to collect from any occupies of such lands rent, compensation and other charge by criminal intimidation; (4) a person who abets the doing of any of the above mentioned acts; and (5) the successors in interest of such a person. Among these five categories, the first category is relevant for the present discussion -- a person or a group of persons who commits land grabbing. 31. Clause (c) of Section 2, quoted above, defines the expression "land grabbing" to mean : (1) every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitab....
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...., impress; make a sudden snatch at; intr. (of the brakes of a motor vehicle) act harshly or jerkily. - n. (i) a sudden clutch or attempt to seize; (ii) a mechanical device for chutching." 37. The various meanings, noted above, disclose that the term "grab" has a broad meaning - to take unauthorisedly, greedily or unfairly - and a narrow meaning of snatching forcibly or violently or by unscrupulous means. Having regard to the object of the Act and the various provisions employing that term we are of the view that the term "grab" is used in the Act in both its narrow as well as broad meanings. Thus understood the ingredients of the expression "land grabbing" would comprise of (i) the factum of an activity of taking possession of any land forcibly, violently, unscrupulously, unfairly or greedily without any lawful entitlement and (ii) the mens read/mention without any lawful entitlement and (ii) the mens read/intention -- "with the intention of/with a view to" (a) illegally taking possession of such lands or (b) enter into or create illegal tenancies, lease and licences agreements or any other illegal agreements in respect of such lands; or (c) to construct unauthorised structures ....
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....ion 2 of the Act, summarised above. 41. What needs to be looked into in the present controversy is : whether the appellant has any lawful entitlement (proprietary or possessory) to the land in dispute and had come into possession of the land in dispute unauthorisedly. Here, we may note the contention of Mr. Parasaran that in effect the suit of the first respondent-plaintiff being a suit for declaration of title and ejectment of the appellant from the land in dispute, it ought to have been dismissed: the first respondent should succeed on the strength of its own title and it cannot take advantage of the defects in the title of the appellant to the land in dispute. We may notice the case set up by the parties in their pleadings and the documentary and oral evidence adduced by them. 42. The case of the first respondent stated in the concise statement enclosed to the application filed before the Special Court On March 20, 1992 and as contained in the plaint filed in the court of the IV Additional Judge, City Civil Court, Hyderabad (O.S. No. 1497 of 1985) is as follows : the first respondent is the absolute owner of the land of an extent of 2 acres and 6 guntas in Survey Nos. 9/15....
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....bed by him. 43. The case of the appellant was that the land in dispute was part of Sarfekhas land and that after Inam Inquiry, ordered by H.E.H. the Nizam, Muntakhab was issued in favour of the Inamadar (Maqtedar) and thereafter succession was granted in favour of his vendor (lessor). It was also stated in the written statement that the appellant has been in possession of the land from November 1954 and that before him his predecessors-in-title were in possession for innumerable years as Inamdars, so he was entitled to tack their possession for purposes of perfecting his title by adverse possession; even otherwise from the date of his own coming into possession in 1954 he perfected his title by adverse possession as against the first respondent. 44. The Special Court has determined that the occupation of the land in dispute by the appellant is without any lawful entitlement and decided the question of the ownership and title to and lawful possession of the land in dispute on appreciating the evidence on record. It held, inter alia, that the land in dispute was not part of Inam and that even if it was so there was no valid confirmation of grant of the land in dispute by the ci....
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....to Hussain Sagar. Ex. A-20 is a copy of Munthkhab Statement of Inam Enquiry (Sarfekhas) bearing execution No. 1050 dated 09.01.1327 Fasli. It shows that as per the letter of Administrative Committee of Sarfekhas (Mubark) bearing No. 1185 dated 19.09.1326 Fasli, H.E.H. the Nizam had sanctioned confirmation of cash grant and the Maqta excluding the land covered by graveyard and the King's bungalow. It is also clear that the land which was appurtenant to the King's bungalow was returned to Sarfekhas and it was subsequently directed to be sold for adequate price by H.E.H. the Nizam on 12.02.1343 Fasli. A perusal of Ex. A-26 lends support to the fact that the original Muntakhab No. 1050 of 1327 Fasli of Maqta Naimatullah Shah had excluded the King's bungalow with the land and the graveyard while sanctioning the confirmation of Maqta by H.F.H. the Nizam. It appears to us that a palace was constructed during the lifetime of H.E.H. the Nizam VI which was referred to as King's bungalow and which later came to be known as the Secretariat. The land between the Secretariat and the Hussain Sagar was part of the excluded land and was lying vacant. It was the land of the Sarfekhas....
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....citals: "Hence the Makhtha may be restored in favour of Syed Shah Mohd. Wajihullah Hussain Asrari, Makhthedar of the Makhtha Niamathullah Shah and after release and handing over a detailed compliance report, should be sent along with the receipt" are out of context with the other recitals therein. Such an important order directing delivery of possession of land, bearing S. Nos. noted above, which was excluded from regrant of Maqta under Muntakhab, could not have been directed to be delivered under Ex. B-11. In the ordinary course of event a decision ought to be taken first and then only it would be communicated. Such a decision should be in the file. No order was filed in support of Ex. B-11. Further, the subject-matter of the letter dated 12.10.1356 Fasli (Exs. B-11 and B-12) from the First Talukdar, District Atraf-e-Balda, Sarfekhas addressed to the Tehsildar, Taluk West shows that the proceeding commenced on the application for waiving the land revenue on the ground that the land was under attachment and in the possession of the Government. It is strange to note that in reply to an application to waive the land revenue the possession of the land was directed to be de....
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....ial Court on the question of title to the land in dispute was not based on the order of the Collector contained in the letter dated October 5, 1959 (Ex.A-14), the validity of that order is inconsequential. We, therefore, do not propose to examine that aspect. We may note here that the Special Court did not invoke the presumption under Section 10 of the Act against the appellant. It is also evident that the title of the first respondent to the land in dispute was upheld de hors the weakness in the title of the appellant. 49. On a careful perusal of the judgment of the Special Court on the question of title of the first respondent and that of the appellant and his lesser-inamdar we are satisfied that neither any relevant material was excluded from consideration nor any irrelevant material was relied upon by the Special Court in recording its finding. There was, therefore, no scope for the High Court to interfere with those findings. In our view, the High Court committed no error of law in not interfering with the findings of the Special Court in regard to the title of the first respondent and absence of title in the appellant to the land in dispute [See : Omar Salav Mohamed Sait v....
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....ll as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years. 54. The appellant (defendant) in his written statement averred that he was claiming title under Mohd. Nooruddin Asrari who was successor of the original Inamdar Sheik Naimatullah Shah. The land in dispute is a part of the maqta land which was in his possession from November 28, 1954 under an agreement for perpetual lease which was confirmed under the registered lease deed executed on December 11/12, 1957, He alleged that he constructed a small structure in 1955 and thereafter, having taken due permission, constructed a pucca building. He denied that the said land came in his possession in 1958 as alleged in the plaint. He stated that he had been in possession adverse to the plaintiff-the first respondent since November 28, 1954 for more than 30 years prior to the filin....
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....respondent herein (the appellant) constructed a building Jala Drushyam. After the dismissal of the suit. The Government of A.P. initiated eviction proceedings. The possession of the respondent (the appellant) in view of his undertaking given in the Trial Court amounts to permissive possession." From the above averments, it is evident that permission was granted by the court to the appellant to construct the building 'Jala Drushyam'. Therefore, the said building could be said to be a construction with permission of the Court and not unauthorised. But certainly the appellant's possession of the land in dispute, if otherwise adverse to the title of the first respondent, does not acquire the character of permissive possession on the ground the appellant sought permission of the Court to erect a building thereon. We are, therefore, of the view that the said averments cannot come in the way of the appellant in acquiring title by adverse possession if other requirements of adverse possession are satisfied. 57. As to the period of the appellant's possession, Mr. Parasaran contended, that though Ex.B-40 perpetual lease agreement was registered on December 12, 1957 yet ....
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....ism of the Special Court we perused the Urdu documents Ex.B-39 and Ex.B-40. Survey Nos. "9/15 and 9/17" (Ex.B-39) were altered to appear as "9/15 to 9/18". This is visible to the naked eye. The alteration was not authenticated so the criticism of the Special Court is well-founded. It is also noticed that the original of Ex.B-40 was not filed in the court and no case is made out to lead secondary evidence. Further in Exs.B-13 and B-14 (which are discussed above it is specifically mentioned that S.Nos. 9/17 and 9/18 which were selected for the offices of the Secretariat were retained with the Government. If that be so, it remained unexplained as to how the appellant obtained the said S.Nos. on lease from the said Nooruddin. This clearly shows the contradiction in the claim of the appellant which makes it unacceptable. After excluding the said documents from consideration the Special Court held that the solitary statement of the appellant that his adverse possession commenced from November 28, 1954, could not be accepted to hold that he has been in continuous possession for a period of 30 years as no receipt of payment of rent (nuzul) under the perpetual lease agreement Ex.B-39 ....
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....be present; the controversy, however, was about the other ingredient of adverse possession. It is clear that it must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period which is adequate in continuity in publicity and in extent with the animus of holding the land adverse to the true owner. 63. Mr. Parasaran, however, contended and reiterated in his written submissions that possession in assertion of one's own title was animus of adverse possession and that passing an adverse order against the appellant or the appellant himself filing an application to any statutory authorities for occupancy certificate would not interrupt his adverse possession of the land in dispute. It was also contended that as a derivative title holder he was entitled to tack his possession to that of his predecessor-in-interest and that in any event the presumption of the continuity of state of things backwards could also be drawn as the appellant's possession from 1958 was accepted and the possession earlier to 1958 should also be presumed. 64. Regarding the animus of the appellant, admittedly he claimed as a lessee under the ....
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....r occupancy rights, in our view, causes no interruption in the continuity of possession of the appellant but it does abrogate his animus to hold the land in derogation of the title of the state and breaks the chain of continuity of the animus. 67. In the light of the above discussion we hold that the appellant neither proved factum of possession of the land in dispute for period of 30 years nor succeeded in showing that he had animus possidendi for the whole statutory period. Therefore, we cannot but maintain the confirming view of the High Court that the appellant failed to acquire title to the land in dispute by adverse possession. We may also add that the lessee of a Maqtedar (the Inamdar) cannot acquire title to the demised land by adverse possession either as against the State or the Maqtedar (Inamdar) so long as his possession under the lease continues. 68. Mr. Parasaran has contended that should the point of adverse possession be found against the appellant, the principle of lost grant would apply as the appellant has been in possession of the land in dispute for a considerable length of time under an assertion of title. In support of his contention he placed reliance ....
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....lingly suffered siwai jama assessment, paid the same and raised structures when a suit was pending and therefore he was a land grabber. The High Court having noted the discussion of the Special Court on the said issue and having adverted to the evidence, declined to interfere with that finding in the writ petition. 71. The requisite intention which is an important ingredient of the land grabber, though not stated specifically, can be inferred by necessary implication from the averments in the petition and the plaint and the deposition of witness like any other fact. If a person comes into occupation of any Government land under the guise of a perpetual lease executed by an unauthorized person having no title to or interest in the land it cannot but be with a view to illegally taking possession of such land. We make it clear that we are expressing no opinion on the point whether those averments would constitute 'mens rea' for purposes of offence under the Act. 72. We have carefully gone through the concise statement accompanying the application filed by the first respondent before the Special Court on March 20, 1992 and the plaint in O.S. No. 1497 of 1985 filed by the ....
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....is generally true that in the absence of necessary pleadings in regard to the ingredients of the definition of "land grabbing" no finding can validly be recorded on the basis of the evidence even if such evidence is brought on record. Mr. Parasaran cited the judgment of this Court in Venkatramana Devaru and Ors. v. The State of Mysore And Ors. [1958]1SCR895 to support his submission that without necessary pleading, the evidence on record cannot be looked into. However, it is a settled position that if the parties have understood the pleadings of each other correctly, an issue was also framed by the Court, the parties led evidence in support of their respective cases, then the absence of a specific plea would be no difference. In Nedunuri Kameswaramma v. Sampati Subba Rao [1963]2SCR208 , Hidyatullah, J. (as he then was) speaking for a three-Judge Bench of this Court observed at page No. 214 thus : "Though the appellant had not mentioned a Karnikam service inam parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent at....