KONDA LAKSHMANA BAPUJI v. GOVT. OF ANDHRA PRADESH AND ORS.

The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. This appeal, by special leave, is from the Judgment of the Division Bench of the High Court of Judicature, Andhra Pradesh at Hyderabad dated October 27, 1998 dismissing Writ Petition No. 5332 of 1993, filed by the appellant assailing the order of H

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A the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 (for short, 'the Act') in L.G.C. No. 61 of 1990 dated April 16, 1993. The Special Court had upheld the claim of the first respondent (the State of Andhra ' Pradesh represented by its Chief Secretary) that the appellant was a land grabber of land of an extent of 2 acres 06 guntas, comprised in Survey Nos. 9/15 Paiki, 9/16 and 9/17 of Khairathabad Village, Golconda Manda!, B 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.

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 <c,

of the successors of the Inamdar, Mohd. Noorudin Asrari, in respect of the Inam land in Survey Nos. 9115, 9116, 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 E Additional Chief Judge passed an interim order directing the parties to maintain status quo in regard to the land in dispute. However, the appellant having sought permission of the Court, constructed a building "Jala Drushyam" on the land in dispute on his giving an undertaking that in the event of the plaintiff therein succeeding in the suit, the building would be vacated by him, leaving the structures intact, without claiming any compensation. On November ,p 11, 1975 the said suit of Rasheed Shahpurji Chenoy was dismissed recording >

the finding that he did not have any title to the suit land which was the Government land (Ex. A-1).

It appears that as a follow up action of the minutes of the committee G held in the Chamber of the Chief Secretary to the Government of Andhra Pradesh, the Deputy Secretary, G.A.D. (O.P.LLL) by his letter dated September 14, 1959 (Ex. B-35) asked the Collector, inter alia, to declare the land situated between the Secretariat and the Fisheries Department (which includes the land in dispute) as the Government land. Thereafter on October 5, 1959, the Collector passed order declaring Survey No. 9/15 paiki, 9/16, 9117, 9118 and H 9119 admeasuring 19 acres 29 guntas as Government Land and informed the

KONDA LAKSHMANA BAPUJI v. GOVT, OF A.P. [S.S.M. QUADRI, J.l 665 Chief Secretary accordingly on October 20, 1959 (Ex. A-14 and Ex. B-34). A On February 28, 1976, the Tehsildar, Hyderabad, Urban Taluk, noticing that the appellant was in unauthorised occupation of Government land, issued eviction notice calling upon him to vacate the land comprised in Survey No. 9115 paiki, 9/16 & 9/17 admeasuring 2 acres 28 guntas (Ex. B-38). Pursuant to the said notice, an order of eviction was passed against the appellant on B May 28, 1977 (Ex. B-58). That order was challenged by the appellant in Writ Petition No. 1414 of 1977 in the High Court of Judicature, Andhra Pradesh at Hyderabad. A learned single Judge of the High Court allowed the writ 1 petition on January 20, 1978 (Ex. A-3). Questioning that order, the first respondent filed W.A. No. 61 of 1978 before the Division Bench. It would be relevant to note here that the Act came into force on September 6, 1982 but that fact was not brought to the notice of the Division Bench at the hearing of the Writ Appeal. The Division Bench opined that there was bona fide dispute of title to the land in dispute between the appellant and the Government which must be adjudicated upon by the ordinary Court of law and that the Government 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 Petitbn 15724 of 1984 apprehending his dispossession from the land in dispute. On June 16, 1986, a learned Single Judge of the High E 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. F 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 from 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 invoking jurisdiction of Special Court for G taking cognizance of the case and prayed that the plaint in the said suit be -f. read as part of the application. Thereupon, the Special Court issued notification for consideration of objections under the first proviso to sub-section (6) of Section 8 of the Act in the Andhra Pradesh Gazette on April I, 1992. The Special Court, after considering the objections filed by the appellant taking H

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A cognizance of the case, LGC No. 61 of 1990 (referred to in this judgment as 'the case'), tried the case as a civil suit. The parties were given opportunity to lead evidence both oral and documentary. The first respondent examined P.W. I and marked Exs.A-1 to A-48; the appellant examined himself as R.W. I and marked Exs. B-1 to B-65. By consent of the parties Exs. X-1 to X-4 B (copies of various plans) were also marked. After considering the evidence adduced by both the sides the Special Court decreed the case of the first respondent on April 16, 1993 which was upheld by the Division Bench of the High Court in the said W.P. No. 5332 of 1993 (filed by the appellant) by its judgment and order dated October 27, 1998 which is under'challenge in this appeal. c Three main contentions were elaborated by Mr. K. Parasaran, the learned •. senior counsel appearing for the appellant. His first contention is that the appellant could not be held to be a land grabber as his possession was alleged to be permissive by the first respondent and he was found to have primafacie bona fide claim to the property in dispute by the High Court in Writ Petition D No. 1414 of 1977 and Writ Appeal No. 61 of 1978. The second contention is that the Special Court had no jurisdiction to try the case and the third contention is that, in any event, the appellant had perfected his title to the land in dispute by adverse possession.

E Mr. Altaf Ahmad, the learned Additional Solicitor General, appearing for the first respondent, has argued that the questions whether the appellant is a land grabber and whether he has title to the land in dispute or it is a government land, were decided by the Special Court after trial and the appellant had ample opportunity to establish his case; the appellant challenged the order of the transfer of the suit from the Civil Court to the Special Court in > F the High Court by filing a civil revision petition; he, however, did not press > it. After the 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. G These contentions can conveniently be dealt with together. 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? H

KONDA LAKSHMANA BAPUJJ v. GOVT. OF A.P. [S.S.M. QUADRI, l.] 667

(5) Whether the respondent perfected title by adverse possession? A (6) Whether the respondent is a land grabber within the meaning of J the Act?"

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.

Before proceeding further, it is appropriate to determine the question of jurisdiction of the Special Court. On this question, it is noted above, Issue No. 3 was framed and the Special Court held that it had jurisdiction. The High Court after adverting to the relevant provisions of the Act, concluded:

"We find, therefore, in the totality of the situation and in view of the specific provisions as laid down by the Act, the Special Court was within its jurisdiction to deal with the matter and to go into the case as to whether there is any title involved in favour of the writ petitioner. Incidentally, be it noted that the statute itself has equated the Special ~· Court with that of a Civil Court with all the powers of the Civil Court. Elaborate and detailed enquiry has been conducted by way of a regular trial like any other civil suit, and like any other civil suit, evidence has been recorded and considered and the Special Court came to a definite finding. Does it warrant intervention of the writ court on the basis of the above? The answer cannot but be in the negative."

Having regard to the principles laid down by a Constitution Bench of this Court in Dhulabhai & Ors. v. The State of Madhya Pradesh & Anr., [I 968] 3 SCR 662, it will be apt to advert to the scheme and the provisions of the Act having a bearing on the question of jurisdiction of the Special Court and Special Tribunal.

Section 178 of the Act provides that the schedule to the Act shall constitute the guidelines for the inte1pretation and implementation of the Act. We have perused the Schedule to the Act containing the Statement of Objects and Reasons to the Andhra Pradesh Land Grabbing (Prohibition) Bill of 1982 as well as the Bill of 1987. The point that is sought to be made out in the Schedule is that having regard to the increasing trend in grabbing the lands H

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A of the Government, local authorities, wakfs, charitable and religious endowments, evacuees and private persons by unscrupulous and resourceful persons forming a distinct class of economic offenders backed by wealth without any semblance of right and having taken note of the delays in disposal of civil and criminal cases in the regular Courts, the State Legislature felt that unless all such cases of land grabbing are immediately detected and dealt B sternly and swiftly by specially devised adjudicating forums the evil cannot subside and social injustice will continue to be perpetrated 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 C 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 ofjustice. 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 D 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 1 and fact. The Special Tribunal has only civil jurisdiction and the Code of E Civil Procedure is applicable to the proceedings before it whereas the Special Court has both the civil as well as the criminal jurisdiction to which the provisions of Codes of Civil Procedure and Criminal Procedure apply. Both the Special Court as well as the Special Tribunals have power to reject any case brought before them if it is prima facie frivolous or vexatious. It is provided that any case pending before any Court or other authority immediately before the commencement of the Act as would have been within the jurisdiction of the Special Tribunal/Special Court, shall stand transferred to the Special Tribunal/Special Court, as the case may be, as if the cause of action on which such suit or proceeding is based, had arisen after such commencement. If the Special Court is of the opinion that any case, brought before it, is not a fit case to be taken cognizance of, it may return the same for presentation before the Special Tribunal. There is, however, no provision that the case should be transferred back to the Civil Court if the final determination by the Special Tribunal or by the Special Court results in recording a finding that the occupation of the land by the respondent does not amount to land grabbing. This is because statutorily the Special Court is a H Civil Court having both original and appellate jurisdiction as well as a Court

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADR!, J.] 669

of Session for all practical purposes and the District Judge having jurisdiction A over the area in which land is alleged to be grabbed is constituted as a Special Tribunal.

It is apt to refer to the relevant provisions of the Act. Section 2 contains definition of various tenns and expressions used in the Act. Section 3 of the B Act which declares that land grabbing in any form is unlawful and any activity connected with or arising out of land grabbing shall be an offence punishable under the Act cannot be lost sight of. Section 4 of the Act ordains that no person shall commit or cause to be committed land grabbing. It ' further declares that any person who, on or after the commencement of this Act, continues to be in occupation, otherwise than as a lawful tenant, of a C grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or other private person, shall be guilty of an offence under the Act and on conviction the offence is punishable with imprisonment for a tenn which shall mt be less than six months but which may extend to five years, and with fine which may extend to five 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.

It will be useful to read Sections 7 to I0 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 :-

(!) 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, constitute a Special Court. (2) to (SC) ... ••• •••

(50) (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 the 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) *** *** *** H

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8Copy pinpoint8. Procedure and powers of the Special Courts : (1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the B land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit; (I-A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location, or extent or value of the land ' c alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter : Provided that the Special Court shall not take congnizance of any such case without hearing the petitioner. D (2) Notwithstanding anything in the Code of Civil Procedure, 1908 the Code of Criminal Procedure, 1973 or in the Andhra Pradesh Civil Courts Act, 1972, any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under E this Act, shall be triable only in a Special Court constituted for the area in which the land grabbed is situated; and the decision of the Special Court shall be final. (2-A) If the Special Court is of the opinion that any case brought before it, is not a fit case to be taken congnizance of, it may ) ) F return the same for presentation before the Special Tribunal :

Provided that if, in the opinion of the Special Court, any application filed before it is prima facie frivolous or vexatious, it shall reject the same without any further enquiry : Provided further that if on an application from an interested person to withdraw and try a case pending before any Special Tribunal the Special Court is of the opinion that it is a fit case to be withdrawn and tried by it, it may for reasons to be recorded in writing withdraw any such case from such Special Tribunal and shall deal with it as if the case was originally instituted before the Special Court.

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRl, J.] 671

(2-B) Notwithstanding anything in the Code of Criminal Procedure, A 1973, it shall be lawful for the Special Court to try all offences punishable under this Act.

(2-C) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within 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 proceedings 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 him 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) *** *** ••• E (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 who committed such land grabbing, and every judgment of the Special Court with regard to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land. Provided that the Special Court shall, by notification, specify the fact of taking cognizance of the case under this Act. Such notification, shall state that any objection which may be received by the Special Court from any person including the custodian of evacuee property within the period specified therein will be considered by it; Provided further that where the custodian of evacuee property objects to the Special Court taking cognizance of the case, the H

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A Special Court shall not proceed further with the case in regard to such property; Provided also that the Special Court sqall cause a notice of taking cognizance of the case under the Act, served on any person known or be~ieved to be interested in the land, after a summary enquiry to satisfy itself about tlte persons likely to be interested in the land. B (7) ...... *** (8) Any case, pending before any Court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall c stand transferred to the Special Court as if the cause of action on which such suit or proceeding is based had arisen after the .. constitution of the Special Court."

9Copy pinpoint9. Special Court to have the powers of the Civil Court and the Court of Session :- D Save as expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, the Andhra Pradesh Civil Courts Act, 1972 and the Code of Criminal Procedure, 1973, in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purposes of the E provisions of the said enactments, Special Court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.

F "10. Burden of proof-Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is prima facie proved to be the land owned by the Government or by a private 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."

Section 7 of the Act envisages constitution of Special Courts. Sub- section (I) 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

KONDA LAKSHMANA BAPUJ! v. GOVT. OF A.P. (S.S.M. QUADR!, J.) 673 possession of the land "grabbed" which in the context includes "alleged to have been grabbed". Clause (i) of sub-section (SD) 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 (SD) of Section 7 provides that notwithstanding anything contained in Section 260 or Section 262 of the Code of Criminal B Procedure, 1973 every offence, punishable under this Act, shall be tried in a summary way and the provisions of Sections 263 to 265 (both inclusive) of the said Code, shall apply to such trial. Section 8 of the Act specifies the procedure and powers of the Special Court. Sul,-section (1) of Section 8 ) authorises a Special Court to take cognizance of and try every case arising c out of any alleged act of land grabbing ei.ther suo motu or on application made by any person, officer or authority. It has also the power to try every case with respect to the ownership and title to, or lawful possession of the land alleged to have been grabbed whether before or after the commencement of the Act and pass such orders including interim orders as it deems fit. D It is pertinent to note that mere allegation of an act of land grabbing is sufficient to invoke the jurisdiction of the Special Court. In both Section 7(1) "" and Section 8( l) of the Act the phrase 'any alleged act of land grabbing' is • employed and not 'act of land grabbing'. It appears to us that it is designedly done by the legislature to obviate the difficulty of duplication of trial once in the Courts under the Act and over again in the ordinary Civil Court. The purpose of the Act is to identify cases involving allegation of land grabbing for speedy enquiry and trial. The Courts under the Act are nonetheless Civil Courts which follow Code of Civil Procedure and are competent to grant the same reliefs which can be obtained from ordinary Civil Courts. For the purpose .j of taking cognizance of the case the Special Court is required to consider the location or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required and to give an opportunity of being heard to the petitioner (sub-section (l-A). It is plain that sub-section (2) opens with a non obstante clause and mandates that notwithstanding anything in the Code of Civil Procedure, the Code of G Criminal Procedure, or in the Andhra Pradesh Civil Courts Act, 1972, any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land alleged ~ to have been grabbed under the Act, shall be triable only in a Special Court constituted for the area in which the land grabbed is situated and the decision of the Special Court shall be final. Sub-section (2B) specifically provides that H

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A notwithstanding anything 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 proceeding is based, has arisen after the constitution of the Special Court. The provisions of sub-section (2) of Section 8 which commences with a non obstante clause confer jurisdiction on the Special Court and Section 15 of the Act directs that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or custom, usage or agreement or decree or order of a Court or any other tribunal or authority. A combined reading of these provisions leads to the conclusion that the jurisdiction of Civil Court under Section 9 of the Code E of Civil Procedure and under the Civil Courts Act is ousted and the Act which is special law will prevail and as such the Special Court will have jurisdiction in respect of the matters dealt with thereunder. [See : Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and Ors., [1990] 2 sec 288. F Section 9 provides, inter alia, that except as expressly provided in this Act, the provisions of the Code of Criminal Procedure, insofar as they are not inconsistent with the provisions of the Act, shall apply to the proceedings before the Special Court and for purposes of the said Code, the Special Court shall be deemed to be a Court of Session and shall have all the powers of G Court of Session.

The discussion of the above provisions would be incomplete without taking note of Section I 0 of the Act which is a procedural provision and deals with burden of proof. A plain reading of this section would indicate that in any proceedings under this Act - (i) where a land is alleged to have H been grabbed; and (ii) such hmd is prima facie proved to be the land owned

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 675

by the Government or by a private person, the Special Court/Special Tribunal A shall presume that the person who is alleged to have grabbed the land ·is a _.,_ land grabber. When the presumption under Section 10 is drawn by the Special "' Court/Special Tribunal, the burden of proving that the land has not been grabbed by him is cast on the alleged land grabber. In view of the meaning of the words "shall presume" in Section 4 of the Indian Evidence Act, the effect of raising presumption under Section I 0 of the Act would be that B unless the alleged land grabber disproves that the land has been grabbed by him, the Special Court/Special Tribunal shall regard that the land in question has been grabbed by the alleged land grabber.

' c - It has been noticed above that O.S. No. 1497 of 1985 filed by the first respondent in the Court of the IV Additional 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.

The first respondent filed petition under sub-section (I) of the Section ,1 7 read with sub-section ( 1) of Section 8 of the Act before the Special Court F on March 20, 1992 complaining of the alleged act of land grabbing and praying the Court to declare the appellant as a land grabber and the structures raised thereon by him as unauthorised and to order his eviction from the land grabbed and deliver possession of the same. The Special Court issued notification under Rule 7(1) of the Land Grabbing Rules, which was published G in the A.P. Gazette on April 1, 1992 which reads as follows :

..... NOTIFICATION BY HEADS OF DEPARTMENTS ETC. JUDICIAL NOTIFICATIONS

LAND GRABBING CASES H

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A FORM·II (A) See Rule 7(1)

NOTICE

In the Special Court under Andhra Pradesh Land Grabbing B (Prohibition) Act, 3, R.K.R. Govt. Offices Complex; II Floor 'B' Block Tank Sund Road; Hyderabad.

L.G.C. No. 61/90-The Special Court has taken cognizance of the case filed by The State of Andhra Pradesh represented by the

c Collector, Hyderabad District, Hyderabad. It is alleged that the land belonging to Government as specified in the schedule below is grabbed by Sri Konda Laxman Bapuji, son of Bapuji, H. No. 6-1-2/J, Khairatabad, near Tank Bund, Hyderabad.

The Schedule D Name of the owner of the land • Government Village in which it is located • Khairatabad village. Manda) District in which it falls · ,..- Golconda taluq, Hyderabad District.

SI. No. Sub-Division No. of the alleged land- 9/15 Paiki, 9/16 and 9/ 17. E Extent of land • 2.06 Ac. Gunts. Boundaries of the land :

North : Sy. No. 911, Hussainsagar Tank F South : Sy. No. 37, Fisheries Department Building and Road. .. ~

East : Land of Smt. Laxmi Gunti.

West : Open Land of Sy. Nos. 9116 part and 9/18 part.

Notice is hereby given to whomsoever it may concern including the custodian of evacuee property concerned as required under the first proviso to sub-section (6) of section 8 of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (A.P. Act 12of1982). If any person intends to object, he may submit his objections, if any, before the Special Court on or before the 15th day of April, 1992 for its consideration.

_I KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.J 677 If no objections are received by the Special Court within the stipulated time it will be- presumed that there are no objections for

.. ~ proceeding further and the case will be proceeded accordingly.

P.V. Raman Rao, Registrar Special Court B A.P. Land Grabbing (Prohibition) Act Hyderabad." In response to the said notice the appellant filed his objections on April ' I 0, 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 c 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.

In this context the following submission, pressed by Mr. Parasaran, may be considered here. He argued that the High Court in the Writ Petition D 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, E 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 from approaching the Special Court and the proceeding before the Special Court was barred by the principle of res judicata. Section 11 of the Code of Civil Procedure incorporates the principle of res judicata which, in short, .,-1 means a matter which has already been adjudged judicially between the same F parties. In substance, Section 11 bars a court from trying any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court and has been heard and finally decided by such court which is competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Eight Explanations are appended to it. We are concerned with Explanation G IV which embodies the principle of constructive res judicata and says that any matter which "might and ought" to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. A conjoint reading of Section 11 and Explanation IV shows that if a plea which might and ought to have been H

\. 678 SUPREME COURT REPORTS (2002] I S.CR.

A taken in the earlier suit, shall be deemed to have been taken and decided against the person raising the plea in the subsequent suit.

Mr. Parasaran relied upon the judgment of the Privy Council in Sha Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR (I 949) PC 302. In that B ·case, the appellant filed second execution petition and sought to attach the right, title and interest of the respondent in the properties on the basis of the Mappilla Marumakkattyam Act, 1938 (Act of 1938). A Division Bench of the High Court of Madras referred to the contention urged in subsequent proceedings at the stage of appeal that the assignee-decree-holder could proceed against the tavazhi properties under the said Act was not dealt with C on merits in those proceedings and held that that was a point which the appellant could have raised in his petition in the earlier proceedings and he failed to do so and, therefore, the dismissal of the earlier execution petition filed in 1940 operated as res judicata in the subsequent case. While approving the said conclusion of the High Court, the Privy Council observed :

D "Apart from the provisions of Section 11, Civil P.C. it would be contrary to principle (see Ram Kirpal Shukul v. Rup Kuari, 11 I.A.37: (6 ALL. 269 PC), to allow him in fresh proceedings 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 th~ 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 Qf 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.

G 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, AIR ( 1980) SC 161 this Court held :

H " ......... as regards the question of constructive res judicata it has no

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 679

application whatsoever in the instant case. It is well settled that one of the essential conditions of res judicata is that there must be a formal adjudication between the parties after full hearing. In other words, the matter must be finally decided between the parties. Here also at a time when the plaintiff relinquished her first cause of action the defendant was nowhere in the picture, and there being no adjudication between the parties the doctrine of res judicata does not apply."

It may be recalled that in this case the first respondent issued notice for eviction of the appellant from the land in dispute (under the Land Encroachment Act) on the ground that he was unauthorisedly in occupation of the Government land. As the appellant claimed title to the land in dispute and thus the title of the first respondent to the land in question was disputed, the High Court observed that the State could not resolve the issue of title in its favour and proceed under the Land Encroachment Act. In view of the rival claims to the land in dispute the High Court granted liberty to the first respondent to establish its title in the competent Civil Court. It is true that on the date of disposal of the Writ Appeal No. 61 of 1978 (14.11.1983) the Act had come into force and that fact was not brought to the notice of the Division Bench of the High Court but there was no final adjudication on the question of rival claims of the parties to the title of the land in dispute on merit in Writ Appeal by the Division Bench of the High Court. Pursuant to the liberty granted to the first respondent by the learned Single Judge which was confirmed by the Division Bench the aforementioned suit, O.S. No. I497 of 1985, was in fact filed by the first respondent against the appellant in the Court of the IV Additional Judge, City Civil Court for declaration of title to and recovery of possession of the land in dispute. The first respondent had thus acted in accordance with the liberty granted to it by the High Court. It is by operation of law, under sub-section (8) of Section 8 of the Act, the said suit stood transferred to the Special Court. The first respondent also invoked the jurisdiction of the Special Court under Sections 7 and 8 of the Act by filing a petition against the appellant. For the reasons, stated above the principle 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 H

680 SUPREME COURT REPORTS [2002) I S.C.R.

A 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.

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 and title to, or lawful possession of, the land grabbed and determine the ownership, title to, or lawful possession of the land alleged to have been grabbed whose decision will be binding on all the persons interested. Mere allegation of land grabbing is sufficient to invoke the jurisdiction of the Special Court either suo motu or on application by any person including any officer or authority. In this view of the matter, we find no illegality in the conclusion arrived at by the High Court in affirming the finding with regard to the jurisdiction of the Special Court.

Now, adverting to the remaining two contentions, it is important to note that under the Act "land grabbing" is not only an actionable wrong but also an offence and a "land grabber" is an offender punishable thereunder. The definitions of the expressions "land grabber" and "land grabbing", in clauses (d) and (e), respectively, of Section 2 of the Act, apply to both civil and criminal proceedings. It is, therefore, essential to construe the definitions of the said expressions strictly. We shall first examine the relevant provisions of the Act and then the case set up by the first respondent against the appellant before the Special Court to describe him as a land grabber. Clauses (d) and (e) of Section 2 of the Act may be quoted here : "2. Definitions : - In this Act, unless the context otherwise requires,- (d) "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 unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest;

KONDA LAKSHMANA BAPUJI v. GOVX. OF A.P. [S.S.M. QUADRI, J.] 681

(e) "land grabbing" means every activity of grabbing of any land A (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 a 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 licences B agreements or any other illegal agreements in respect of such lands, or to construct 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;"

A perusal of clause (d) shows that the expression "land grabber" takes c in its fold : (I) 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 occupiers of such lands rent, compensation and other charges by criminal intimidation; (4) a D 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.

Clause (e) of Section 2, quoted above, defines the expression "land E grabbing" to mean : (1) 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; (2) such grabbing must be : (i) without any lawful entitlement and (ii) with a view to : (a) illegally taking possession of p r such lands; or (b) to 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 thereon for sale or hire; or (d) to give such lands to any person on (i) rental or (ii) lease and licence basis for construction, or (iii) use and occupation of unauthorised structures. G Inasmuch as the afore-mentioned expressions are defined employing the term "grabbing", it is necessary to ascertain the import of that term. It is not defined in the Act. It is not a technical term or a term of art so it has to be understood in its ordinary common meaning.

The meaning of the term "grab" in the New International Webster's H

\ 682 SUPREME COURT REPORTS [2002] I S.C.R.

A Comprehensive Dictionary of the English Language, is given as follows :

"To grasp or seize forcibly or suddenly; to take possession of violently or dishonestly; to make a sudden grasp. See synonyms under grasp • (i) The act of grabbing, or that which is grabbed. (ii) A dishonest or unlawful taking possession or acquisition (iii) An apparatus for B grappling."

In Words and Phrases, permanent edition, Vol. 18, the meaning of "grab" is noted as under :

"The word "grab" means an act or practice of appropriating c unscrupulously, as in politics. Smith v. Pure Oil Co., 128 S.W. 2d 931, 933, 278 Ky. 430.

The word "grab" means a seizure or acquisition by violent or unscrupulous means. Smith v. Pure Oil Co., 128 S.W. 2d 931, 933, 278 Ky. 430. D The word "grab" means to seize, grasp, or snatch forcibly or suddenly with the hand, hence to take poss~ssion of suddenly, violently, or dishonestly. Smith v. Pure Oil Co., 128 S.W. 2d 931, 933, 278 Ky. 430." • E Corpus Juris Secundum, Volume 38, records the meaning of the term "grab" thus :

"As a verb, to seize, grasp or snatch forcibly or suddenly with the hand, hence to take possession of suddenly, violently, or dishonestly."

F In Concise Oxford Dictionary, the following meanings of the word "grab" are noted :

"A seize suddenly; capture, arrest; take greedily or unfairly; attract the attention of, 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 clutching."

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

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 683

narrow as well as broad meanings. Thus understood the ingredients of the expression "land g_rabbing" would comprise of (i) the factum of an activity

1. of talcing possession of any land forcibly, violently, unscrupulously, unfairly or greedily without any lawful entitlement and (ii) the mens rea/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 thereon for sale or hire; or (d) to give such lands to any person on (i) rental or (ii) lease and licence basis for construction, or (iii) use and occupation of unauthorised structures.

A combined reading of clauses (d) and (e) would suggest that to bring C a person within the meaning of the expression "land grabber" it must be shown that : (i) (a) he has taken unauthorisedly, unfairly, greedily, snatched forcibly, violently or unscrupulously any land belonging to government or a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person; (b) without any lawful entitlement; and (c) with a view to illegally talcing possession of such lands, or enter or create illegal tenancil.s or lease and licences agreements or any other illegal agreements in respect of such lands or to construct 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; or (ii) he has given financial aid to any person for talcing illegal possession of lands or for construction of unauthorised structures thereon; or (iii) he is collecting or attempting to collect from any occupiers of such lands rent, compensation and other charges by criminal intimation; or (iv) he is abetting the doing of any of the above-mentioned acts; or (v) that he is the successor-in-interest of any such persons. F It must be borne in mind that for purposes of taking congnizance of a . case under the Act existence of an allegation of any act of land grabbing is the sine qua non and not the truth or otherwise of such an allegation. But to hold that a person is a land grabber it is necessary to find that the allegations satisfying the requirements of land grabbing are proved. G

To make out a case in a civil case that the appellant is a land grabber the first respondent must aver and prove both the ingredients - the factum as well as the intention - that the appellant falls in the categories of the persons, mentioned above (clause (d) of Section 2 of the Act), has occupied the land in dispute, which belonged to the first respondent, without any H

684 SUPREME COURT REPORTS (2002] I S.C.R.

A lawful entitlement and with a view to or with the intention of illegally taking possession of such land or entering into the land for any of the purposes mentioned in clause (e) of Section 2 of the Act, summarised above. ¥

What needs to be looked into in the present controversy is : whether the appellant has any lawful entitlement (proprietory or possessory) to the land B in dispute and had come into pos·;ession 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 • C 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.

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 D 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 paiki, 9/16 and 9/17, forming part of the Hussain • Sagar Tank Bund land, situated at Khairatabad village, Hyderabad Dist., E Hyderabad, thel'.e were wrong entries in the record of rights which were corrected by the Collector on October 5, 1959. It is stated, alternatively, if the land in dispute formed part of the Inam land the same had vested in the first respondent with effect from July 20, 1955, the date of vesting as per Section 3 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 (Act No. 8 of 1955) (for short, 'the loams Act'). None of the heirs of the alleged lnamdar F appeared before the Collector, Hyderabad Distt., Hyderabad, for claiming registration as occupants under Section I0 of the said Act. The land in dispute, it is noted, was shown as Maqta land belonging to Naimatullah Shah for

G some time and thereafter as lnam land and the appellant claimed to be the lessee of Mohd. Nooruddin Asrari, one of the successors to the said Maqta; he occupied the said land in the year 1958 or so and raised a building known - as "Jala Drushyam". The claim of the appellant was not proper, valid and legal because the land never belonged to the said Maqta; even otherwise it vested in the Government with effect from the said date and the order of the Collector, correcting entries in the record of rights, had become final. The plaint refers also to the facts that the land in dispute was the subject matter of O.S. No. 13 of 1958 on the file of the Additional Chief Judge, City Civil

J KONDA LAKSHMANA BAPUJ! v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 685 Court, Hyderabad, filed by one Rasheed Shapurji Chenoy, which was dismissed holding that it was Government land. On giving an undertaking in the said suit, the appellant with the pennission of the Court constructed the said house "Jala Drushyam" and, therefore, the possession of the appellant partakes the character of pennissive possession. After the dismissal of the suit the first respondent issued notice of eviction to the appellant under Section 6 of the B Land Encroachment Act, on the ground that he was in unauthorised occupation of land in dispute, but the notice was quashed in the writ petition filed by the appellant and that order was upheld in writ appeal giving liberty to the first respondent to establish its title in a Civil Court. The first respondent sought ) from the Special Court the following reliefs : to declare the appellant a land grabber and to restore possession of the land grabbed by him. C

The ca5e 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 lnamdar (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 D 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 • otheiwise from the date of his own coming into possession in 1954 he perfected his title by adverse possession as against the first respondent. E The Special Court has detennined 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 civil administrator under Ex. B-6 and consequently no title had passed under Ex. B-9 to the vendor of the appellant and hence no title was obtained by the appellant under Ex. B-40. Though the findings recorded by the Special Court in regard to absence of lawful entitlement of the appellant to the land in dispute and upholding the title of the first respondent that it is a Government land, are findings of fact which were not interfered with by the High Court in the Writ Petition filed by the appellant, yet to satisfy ourselves, we have gone through the depositions of PW 1 and RW 1 and perused the documentary evidence in great detail; the original record is in Urdu. We find no valid reason to take a different view of the matter and inasmuch as we are sustaining the said H

686 SUPREME COURT REPORTS (2002] I S.C.R.

A findings it is not necessary to re-do the whole exercise of discussing all the evidence here. However, we shall refer to a few important documents and aspects which clinch the issue.

In regard to the ingredients of the expression 'land grabber', it is necessary to point out that it is only when a person has lawful entitlement to B the land alleged to be grabbed that he cannot be brought within the mischief of the said expression. A mere prim a facie bona fide claim to the land alleged to be grabbed by such a person, cannot avert being roped in within the ambit of the expression "land grabber". What is germane is lawful entitlement to and not a mere prima facie bona fide claim to the land alleged to be grabbed. (

C Therefore, the obsP.rvation of the Division Bench of the High Court in the said Writ Appeal No. 61 of 1978 that the appellant can be taken to have prima facie bona fide claim to the land in dispute which was relevant for the said Land Encroachment Act, cannot be called in aid as a substitute for lawful entitlement to the land alleged to be grabbed, which alone is relevant under the Act. D A copy of the statement of Maqta Enquiry (Ext. B-15) which is in Urdu shows that the Maqta was granted by the Qutub Shahi rulers, which became Sarfekhas property (private property of the Nizam) subsequently. In the Maqta enquiry the Talukdar (Sarfekhas) recommended that Maqta be re-granted in - E favour of Mohd. Abdul Quadir and others (who were ancestors of the lessor of the appellant). The location of the Maqta (which is referred to as, 'Maqta Naimatullah Shah') was mentioned as adjacent 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

F Administrative Committee of Sarfekhas (Mubark) bearing No. 1185 dated 19.09.1326 Fasli, H.E.H. the Nizam had sai.~tioned 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 G 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.E.H. the Nizam. It appears to us that a palace was constructed during the lifetime ofH.E.H. the Niz.am VI which was referred to as King's bungalow and which later came to be known as the Secretariat. The land between the H Secretariat and the Hussain Sagar was part of the excluded land and was

j KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.) 687 lying vacant. It was the land of the Sarfekhas and in regard to that land various persons including predecessors-in-interest of the appellant made their claims but all the claims were rejected by the then Sadarul Maham (Minister) of Sarfekhas and it was directed that the land should be under the control and protection of Babe Hukumat (GAD) and the Revenue Department was specifically directed to supervise the same. That order was appealed against before Moaziz Committee of Sarfekhas (comprising of the Chief Justice and two Hon 'ble Judges of the High Court of the then State of Hyderabad). The Committee confirmed the said order of the Minister and dismissed the appeals on Mehr 30, 1357 Fasli. Thus, it is abundantly clear that Survey Nos. 9/15 paiki, 9/16, 9/17, 9/18, 9/19 were not part of Maqta which was reconfirmed in favour of the predecessors-in-interest of the appellant. They remained land of Sarfekhas (private estate of the Nizam) which merged in Diwani, that is State Government, on 5.2.1949 (Ex. A-30). It is noted in Ex. B-20, letter from Tehsil Taluk, Hyderabad West, addressed to the Collector, Hyderabad, dated 27.07.1954 that Survey Nos. 9115, 9116, 9/17, 9/18 and 9/19 ofMaqta Naimatullah Shah are situate in between the Secretariat and Hussain Sagar Tank. That was also stated to by the appellant in his deposition. Inasmuch as the Maqta remained under attachment and in the possession of the Sarfekhas during the period of Inam Enquiry an attempt was made to show that under Ex. B-11, a letter dated 12.10.1356 Fasli (English translation Ex. B-12), the Maqta was directed to be released in.favour of the Maqtadar. Ex. B-13 a certified copy of the panchnama dated 02.11.1356 Fasli is filed to show that the land bearing Survey Nos. 9/2, 9/10, 9/12, 9115 and 9116 to 9/20 measuring 54 acres, was inspected and while Survey No. 9/17 and 9/18 measuring 7 acres and 7 guntas alone were retained in the Government possession the rest of the Survey numbers were put in possession of the Inamdar. English translation of Ex. B-13 is marked as Ex. B-14. Ex. B-15 English translation is a certified copy of receipt dated 02.11.1356 Fasli which was filed to show that possession was taken by the Maqtadar. These documents were, however, treated by the Special Court as spurious. The said documents are certified copies and they are in Urdu. A careful reading of Ex. B-11 in Urdu and B- 12 (English translation) discloses that the recitals:

"Hence the Makhtha may be restored in favour of Syed Shah Mohd. G 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 H

688 SUPREME COURT REPORTS (2002] I S.C.R.

A 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 tile. No order was filed in support of Ex. B B-11. Further, the~ubject-matter of the letter dated 12.10.1356 Fasli (Exs. B- l I 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 C of the land was directed to be delivered by the first Taluqdar in his letter Ex. B-11 dated 12.10.1356 Fasli (English translation Ex. B-12) and purported to have been delivered under Exs. B-13 and B-14 dated 2nd Mehr 1356 (2.11.1356 Fasli) (wrongly noted in the English translation as 2.11.1355 Fasli), while the appeal in regard to the land of which the said S. Nos. are D a part, was still pending before the Moaziz Committee. From Ex. A-27 it is seen that the Moaziz Committee decided the appeal on Mehr 30, 1357 (30.11.1357 Fasli) after sending the said letter (Ex. B-11). These documents are not originals. They are certified copies and, therefore, it is not possible to make out whether the portion noted above as out of context, really formed .. part of the letter as in the absence of the order including the said S. Nos. in E the regrant directing delivery of possession, gives rise to lot of suspicion. We say no more. For the aforementioned reasons, they do not inspire any confidence to be accepted as correct. In view of these strong reasons we are not persuaded to disagree with the view of the Special Court that they are spurious documents. Thus, it is clear that the land in dispute was not part of Maqta land. That land remained as Sarfekhas land and on merger of Sarfekhas F in Diwani on February 5, 1949, it became Government land. Even assuming that it was part of regranted Inam land, on coming into force of the lnams Act, it vested in the Government. Admittedly, neither the lnamdar nor the appellant obtained occupancy certificate in respect of the land in dispute under loams Abolition Act. In support of the allegations in the petition and the plaint PW I has categorically stated that the appellant is a land grabber and he was not cross-examined on that aspect. We have, therefore, no hesitation in endorsing the finding that the said Mohd. Nooruddin Asrari had no title to the land in dispute and consequently the appellant acquired no title to it.

Having regard to the absence of any material on record, all the circumstances and the probabilities of the case, it is hard to believe that at

KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.l 689 any time before or on the date of execution of Ex. B-39 the lessor of the appellant who had no title to or interest in the land which was directed to be under the supervision of the GAD, was in possession of the land in dispute which was lying vacant.

It is relevant to note that as the decision of the Special Court on the question of title to the land in dispute was not based on the order of the B 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 C de hors the weakness in the title of the appellant.