Dr. Kazimunnisa (Dead) By Lr. vs Zakia Sultana (Dead) By Lr.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 18783-18784 OF 2017 (ARISING OUT OF SLP (C) Nos.1401-1402/2015)

Dr.Kazimunnisa (Dead) By L.R. ...Appellant(s)

VERSUS

Zakia Sultana (Dead) By L.R.& Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) These appeals are filed against the final

judgment and order dated 17.09.2014 passed by

the High Court of Judicature at Hyderabad for the Signature Not Verified Digitally signed by ASHA SUNDRIYAL State of Telangana and the State of Andhra Pradesh Date: 2017.11.15 17:21:41 IST Reason:

in Writ Petition No. 15055 of 2004 and Writ Petition

1 No. 27567 of 2008 whereby the Division Bench

allowed Writ Petition No.15055 of 2004 by reversing

the judgment dated 16.06.2004 of the Special Court

in LGC No.41 of 1998 and dismissed Writ Petition

No. 27567 of 2008 while confirming the judgment

dated 23.10.2008 of the Special Court in LGC No.50

of 2004.

3) In order to appreciate the issues involved in

these two appeals, few relevant facts need mention.

4) The dispute in these appeals relate to land

bearing old Survey No. 129 (new Survey No. 358),

T.S. Nos.1/3 and 5/3 situated at Banjara Hills,

Hyderabad (hereinafter referred to as the "suit

land”).

5) The questions, which broadly fall for

consideration in these appeals are, first, who is/are

the owner(s) of the suit land and, if so, on what

basis and of which portion and for how much area;

Second, who is/are in possession of the suit land

and of how much area and of which portion and

2 since when and whether their possession has been

legal on such area and, if so, its basis and whether

they or any of them have, at any point of time,

encroached upon any parcel of suit land to the

detriment of its owner's interest and, if so, to what

extent, they encroached and since when ?

6) These questions have to be decided in the light

of the relevant provisions of The Andhra Pradesh

Land Grabbing (Prohibition) Act, 1982(hereinafter

referred to as “the Act”).

7) Two cases were filed by the respondents

through power of attorney holder against the

appellant herein before the Special Court under

Section 8 of the Act for claiming possession of the

portion of the suit land.

8) One case was filed on 02.01.1998, i.e., (LGC

No.41/1998) whereas the other was filed on

15.04.2004,i.e.,(LGC No.50/2004). So far as LGC

No. 50/2004 is concerned, it was filed two months

3 prior to the disposal of first case, i.e., LGC No.

41/1998.

9) So far as LGC No.41/1998 is concerned, it was

filed against Kazimmunisa (since dead and now

represented by her legal representative-appellant

herein) as non-applicant No. 1, District Collector,

Ranga Reddy District as non applicant No. 2 and

the Special Officer,Urban Land Ceiling, Hyderabad

as non applicant No. 3.

10) So far as LGC No. 50/2004 is concerned, it

was filed only against Kazimmunisa and her family

member as non-applicant No. 1 (now represented by

her legal representative).

11) In other words, in LGC No.50/2004, District

Collector, Ranga Reddy Dist. and Special Officer,

Urban Land Ceiling, Hyderabad were not impleaded

as non-applicants though both these State

authorities were impleaded in LGC No. 41/1998 as

non-applicant Nos. 2 and 3.

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12) So far as LGC No. 41/1998 is concerned, the

application was founded on the allegations that the

respondents are the owners of the suit land. The

respondents, in support of their claim of ownership

over the suit land traced their title through some

documents of title of their predecessor-in-title,

entries in the revenue records and other

documentary evidence and on the basis of these

documents, alleged that their title over the suit land

including portion of the suit land is prima facie

established as against the appellant.

13) The respondents then alleged that the original

appellant herein (non-applicant No. 1 in the case)

illegally and without any lawful title and authority

has encroached upon a portion of the suit land of

which the respondents are the owners and hence

under the provisions of the Act, the respondents

have become entitled to claim possession of the

illegally encroached portion of the suit land from the

appellant which essentially belonged to them.

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14) The appellant (non-applicant No. 1) denied the

respondents’ case and contended that, firstly, the

respondents are not the owners of the portion of the

suit land; Secondly and on the other hand, the

appellant is the lawful owner of portion of the suit

land; Thirdly, the appellant has been in lawful

possession of the said portion of the suit land as

owner thereof; Fourthly, the appellant has not

encroached upon any portion of the suit land as

alleged by the respondents. The

appellant(non-applicant No.1), in support of her

case, also filed documents of title, revenue entries

and other documents.

15) So far as the District Collector (non-applicant

No. 2) is concerned, he also filed the written

statement(counter affidavit) on behalf of the State.

He also denied the respondents’ claim including the

respondents’ title over the suit land. He found fault

in the title traced by the respondents’ over the suit

land and contended that the respondents have not

6 been able to establish their prima facie title over the

suit land. He then alleged that the Government

record does not support the respondents’ case and

nor the facts stated in the application by the

respondents tracing their title tally with the

Government's record.

16) Parties then adduced evidence. The Special

Court, by order 16.06.2004, dismissed the

respondents’ application finding no merit therein.

17) So far as LGC No. 50/2004 is concerned, it

was in relation to another portion of the same suit

land. This application was also based on somewhat

identical averments on which LGC No. 41/1998 was

founded for claiming relief therein. The respondents,

as mentioned above in LGC 50/2004, impleaded

only the original appellant as non-applicant No.1

but neither impleaded the District Collector nor the

Special Officer Urban Land Ceiling, Hyderabad as

non-applicant along with the appellant.

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18) The original appellant herein filed written

statement in (LGC No. 50/2004) and denied the

respondents’ claim. She took the same defense,

which she had taken in LGC No. 41/1994 to prove

her ownership over the portion of the suit land. She

also raised the plea of Order 2 Rule 2 of the Code of

Civil Procedure 1908 (hereinafter referred to as “the

Code”) and also raised the plea of limitation.

19) By order dated 23.10.2008, the Special Court

allowed this application (LGC No.50/2004) and held

that the applicants(respondents herein) are prima

facie the owners of the portion of the suit land,

which has been in possession of the appellant. It

was held that the original appellant herein was

neither able to rebut the case of respondents as per

Section 10 of the Act by proving their prima facie

legal title over the suit land nor legal possession

over the portion of the suit land and, therefore, she

is held as "land grabber" in relation to the land in

her possession under the Act and, hence, she is

8 liable to restore the portion of the suit land which is

held to be in her illegal possession to the

applicants(respondents herein).

20) The appellant, felt aggrieved of the judgment of

the Special Court dated 23.10.2008 passed in LGC

No.50/2004, filed writ petition under Article 227 of

the Constitution of India whereas the respondents

felt aggrieved of the order dated 16.04.2004 passed

in LGC No. 41/1994 also filed writ petition in the

High Court.

21) The High Court clubbed both the writ

petitions. By common impugned judgment, the High

Court allowed the writ petition filed by the

respondents, set aside the judgment dated

16.04.2004 passed in LGC No.41/1994 and, in

consequence, allowed their application and, in

consequence, dismissed the writ petition filed by the

appellant against the judgment dated 23.10.2008

passed in LGC No. 50/2004 and affirmed the

judgment of Special Court dated 23.10.2008.

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22) The effect of the impugned judgment of the

High Court is that both LGCs, i.e., 41/1994 and

50/2004 filed by the respondents against the

appellant stand decreed in relation to the respective

suit land involved in both the applications and the

original appellant herein has to restore the

possession of the portion of the suit lands which is

in her possession to the respondents.

23) Felt aggrieved, the original appellant has

challenged the impugned common judgment of the

High Court by way of appeal by special leave before

this Court.

24) Heard Mr. Huzefa Ahmadi, learned senior

counsel for the appellant and Mr. Basava Prabhu

Patil, learned senior counsel for respondent Nos.3,7

and 8, Mr. Shanti Bhushan, learned senior counsel

for respondent No.2 and Mr. P. Venkat Reddy,

learned counsel for respondent Nos.4 & 5.

25) Having heard the learned senior counsel for

the parties at length and on perusal of their written

10 submissions and the record of the case, we are

inclined to allow the appeals in part and while

setting aside of the impugned judgment of the High

Court and also of the Special Court in both the

cases (L.G.C. Nos.41/1994 and 50/2004) remand

both the LGCs to Special Court for their disposal

afresh on merits in accordance with law as

indicated below.

26) In our considered opinion, the need to remand

the aforementioned two LGCs to the Special Court is

considered necessary due to the following reasons.

27) First, we find that the trial of the two cases

before the Special Court was not satisfactory

inasmuch as when admittedly two LGCs (41/1994

and 50/2004) arising between the same parties and

in relation to the same piece of suit land were filed

for grant of identical reliefs under the Act then, in

our view, both the cases should have been clubbed

together for their disposal on merits in accordance

11 with law to avoid any conflicting decision in both

the cases.

28) It was more so when both the cases were

capable of being clubbed together because both

were pending though filed one after the other,

neither the parties nor the Courts below took note of

this with the result, the same resulted in passing

two conflicting orders - one was decreed and the

other suffered dismissal. This recourse adopted by

the Court below caused prejudice to the parties and,

especially, to the party who lost the case.

29) Indeed, in our view, this was an appropriate

case where the provisions of Order II Rule 3 of the

Code, which deals with joinder of causes of action,

could have been resorted to by the Court suo moto

for clubbing the two cases as the facts involved in

both the cases satisfied the attributes of Order II

Rule 3 of the Code.

30) Second, we find that the case which was filed

first,i.e.,(L.G.C.No.41/1994), the District Collector

12 and the Special Officer, Urban Land Ceiling,

Hyderabad were rightly made parties

-non-applicants by the respondents whereas in

other case, i.e., (L.G.C. No.50/2004) filed

subsequently, both the State authorities were not

made parties for the reasons best known to the

respondents.

31) In our opinion, these two State authorities

should also have been arrayed as non-applicants in

the second case, i.e., LGC No. 50/2004 like the

earlier one to maintain parity in both the cases. The

parties so also the Courts below overlooked this

aspect though material for the proper disposal of

both the cases.

32) Third, we find that though the District

Collector filed his counter affidavit in first case (LGC

No.41/1994) in which he not only denied the

respondents’ title but also pointed out as to who

was the original owner of the suit land but neither

the respondents countered these averments nor the

13 District Collector adduced any evidence to prove the

averments.

33) Similarly, no counter affidavit was filed in

second case (LGC 50/2004) by the District Collector

because he was not made party in the case. This

was another infirmity in the trial of both the cases,

which resulted in passing conflicting decisions in

both the cases.

34) This was neither noticed by the Special Court

nor High Court which resulted in recording

reversing finding on the same set of facts and

evidence.

35) Fourth, we also find that the issue of

maintainability of application and also issue of

limitation in filing the two applications by the

respondents under the Act should also have been

decided along with other issues.

36) Lastly, we find that the High Court while

reversing the findings of the Special Court decided

the writ petition under Article 227 like a first

14 Appellate Court by appreciating the entire evidence

little realizing that the jurisdiction of the High Court

while deciding the writ Petition under Article 227 is

not akin to appeal and nor it can decide the writ

petition like an Appellate Court.

37) The writ petition, in our opinion, should have

been decided by the High Court keeping in view the

scope and ambit of Article 227 for its exercise as

explained by this Court consistently in series of

decisions while examining the legality and

correctness of judgment of Special Court impugned

in the writ petition.

38) In the light of aforementioned five reasons, we

have formed an opinion that the trial in both the

cases was unsatisfactory inasmuch as it caused

prejudice to the parties and especially to the one

who lost the case. It is for these reasons, we do not

consider it proper to probe at this stage the entire

factual issues argued by the learned counsel for the

parties at great length with reference to the

15 pleadings and the evidence of the parties. We also

do not consider it proper to record any finding on

merits either way and leave the parties to contest

the case before the Special Court de novo on merits.

39) In view of foregoing discussion, the appeals

succeed and are allowed in part. The impugned

judgment as also that of the Special Court are set

aside.

40) As a consequence, both the cases, i.e., LGC

Nos.41/1994 and 50/2004 are restored to their

respective files before the Special Court. It is

directed that both the cases be clubbed together for

their disposal on merits. It is further directed that

the District Collector and the Special Officer, Urban

Land Ceiling, Hyderabad would also be made party

in LGC No.50/2004 as non-applicant Nos. 2 and 3

respectively. These two newly added non-applicants

in LGC No. 50/2004 are afforded an opportunity to

file their counter affidavits in LGC No.50/2004.

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41) All the parties in both the cases are also

afforded an opportunity to amend their pleadings in

case, if they so consider it proper and also file any

additional evidence both oral and documentary in

addition to what has already been filed in support of

their respective case, if they so desire to file.

42) After completion of the pleadings, if considered

necessary, the Court may also frame additional

issues or/and recast the issues already framed and

then decide both the cases by common judgment.

43) As mentioned above, the cases in question

arise out of the Act and hence the factual and legal

findings have to be rendered keeping in view the

relevant provisions of the Act as interpreted by this

Court in decided cases cited by the learned counsel

in support of their contentions.

44) We, however, make it clear that we have not

expressed any opinion on the merits of the case and

nor recorded any finding on the merits of the

controversy. The Special Court would, therefore,

17 decide both the cases strictly in accordance with

law on merits without making any reference to the

order of the Special Court and High Court and

uninfluenced by any observations made by this

Court, High Court and Special Court, in any of their

judgments.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

November 15, 2017

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