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CASE NO.:

Appeal (civil) 2063 of 1999

PETITIONER:

KONDA LAKSHMANA BAPUJI

Vs.

RESPONDENT:

GOVT. OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT: 29/01/2002

BENCH:

Syed Shah Mohammed Quadri & S.N. Phukan

JUDGMENT:

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 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 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.

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

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 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).

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It appears that as a follow up action of the minutes of the

committee 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, 9/17, 9/18 and 9/19

admeasuring 19 acres 29 guntas as Government Land and

informed the Chief Secretary accordingly on October 20, 1959

(Ex.A-14 and Ex.B-34).

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.9/15 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 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 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 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. No1497 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.

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 taking cognizance of the case and prayed that the

plaint in the said suit be 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 1, 1992. The Special Court, after considering

the objections filed by the appellant taking 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.1 and marked Exs.A-1 to A-48;

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the appellant examined himself as R.W.1 and marked Exs. B-1

to B-65. By consent of the parties Exs.X-1 to X-4 (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.

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

prima facie bona fide claim to the property in dispute by the

High Court in Writ Petition 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.

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 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.

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?

(5) Whether the respondent perfected title by

adverse possession?

(6) Whether the respondent is a land grabber

within the meaning of 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 :

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"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. Vs. The

State of Madhya Pradesh & Anr. [1968 (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 17B of the Act provides that the schedule to the

Act shall constitute the guidelines for the interpretation 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 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 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 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

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

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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 Civil Court having

both original and appellate jurisdiction as well as a Court of

Session for all practical purposes and the District Judge having

jurisdiction 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 terms and expressions

used in the Act. Section 3 of the 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 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

term which shall not 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 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, 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 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.

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(5D)(ii) to (6) *** *** ***

8. 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 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;

(1-A) The Special Court shall, for the purpose of

taking cognizance of the case, 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 or any other relevant matter :

Provided that the Special Court shall not

take congnizance of any such case without

hearing the petitioner.

(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 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 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.

(2-B) 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.

(2-C) The Special Court shall determine the order

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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 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 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 Special Court shall not proceed further

with the case in regard to such property;

Provided also that the Special Court

shall cause a notice of taking cognizance of the

case under the Act, served on any person

known or believed to be interested in the land,

after a summary enquiry to satisfy itself about

the persons likely to be interested in the land.

(7) *** *** ***

(8) Any case, pending before any Court or other

authority immediately before the Constitution

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of a Special Court, as would have been within

the jurisdiction of such Special Court, shall

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."

9. Special Court to have the powers of the Civil

Court and the Court of Session :-

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

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.

"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 (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 (i) 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 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. Sub-

section (1) of Section 8 authorises a Special Court to take

cognizance of and try every case arising out of any alleged act

of land grabbing either 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.

It is pertinent to note that mere allegation of an act of

land grabbing is sufficient to invoke the jurisdiction of the

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Special Court. In both Section 7(1) and Section 8(1) 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 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 (1-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 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 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 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 vs. Vishwa Cooperative

Housing Society Ltd. & Ors. [1990 (2) SCC 288].

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 Court of Session.

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The discussion of the above provisions would be

incomplete without taking note of Section 10 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

been grabbed; and (ii) such land is prima facie proved to be the

land owned by the Government or by a private person, the

Special Court/Special Tribunal 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 10 of the Act would be that 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.

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 (1)

of the Section 7 read with sub-section (1) of Section 8 of the

Act before the Special Court 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 in the A.P.Gazette on

April 1, 1992 which reads as follows :

NOTIFICATION BY HEADS OF DEPARTMENTS ETC.

JUDICIAL NOTIFICATIONS

LAND GRABBING CASES

FORM-II (A)

See Rule 7(1)

NOTICE

In the Special Court under Andhra Pradesh Land

Grabbing (Prohibition) Act, 3, R.K.R.Govt. Offices

Complex; II Floor 'B' Block Tank Bund Road;

Hyderabad.

L.G.C.No.61/90 -- The Special Court has taken

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cognizance of the case filed by The State of Andhra

Pradesh represented by the 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.6-1-2/1, Khairatabad, near Tank Bund, Hyderabad.

The Schedule

Name of the owner of the land - Government

Village in which it is located - Khairatabad village.

Mandal District in which it falls - Golconda taluq,

Hyderabad District.

Sl.No.Sub-Division No. of the alleged land- 9/15 Paiki,

9/16 and 9/17.

Extent of land - 2.06 Ac.Gunts.

Boundaries of the land :

North : Sy.No.9/1, Hussainsagar Tank

South : Sy. No.37, Fisheries Department Building

and Road.

East : Land of smt.Laxmi Gunti.

West : Open Land of Sy.Nos.9/16 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 12 of 1982).

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.

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

A.P.Land Grabbing (Prohibition) Act

Hyderabad."

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.

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 from

approaching the Special Court and the proceeding before the

Special Court was barred by the principle of res judicata.

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Section 11 of the Code of Civil Procedure incorporates the

principle of res judicata which, in short, means a matter which

has already been adjudged judicially between the same 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 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 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 vs. Edappakath Ayissa Bi &

Ors. [AIR 1949 PC 302]. In that 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 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,

"Apart from the provisions of Section 11, Civil

P.C. it would be contrary to principle (see Ram

Kirpal Shukul vs. 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 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.

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 vs. Lajwanti [AIR 1980 SC 161]

this Court held :

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".........as regards the question of constructive res

judicata it has no 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.1497 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 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

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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;

(e) "land grabbing" means 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 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 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 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 occupiers of

such lands rent, compensation and other charges 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

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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 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 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.

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 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 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 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.

The word "grab" means to seize, grasp, or

snatch forcibly or suddenly with the hand, hence to

take possession of suddenly, violently, or

dishonestly. Smith v. Pure Oil Co., 128 S.W.2d

931, 933, 278 Ky.430."

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."

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

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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 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 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 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 taking

possession of such lands, or enter or create illegal tenancies 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 taking 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.

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.

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

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.

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What needs to be looked into in the present controversy

is : whether the appellant has any lawful entitlement

(proprietory 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.

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 paiki, 9/16 and 9/17,

forming part of the Hussain Sagar Tank Bund land, situated at

Khairatabad village, Hyderabad Dist., Hyderabad, there 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 Inams Act'). None of the heirs of the alleged Inamdar

appeared before the Collector, Hyderabad Distt., Hyderabad,

for claiming registration as occupants under Section 10 of the

said Act. The land in dispute, it is noted, was shown as Maqta

land belonging to Naimatullah Shah for some time and

thereafter as Inam 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 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 permission of the Court

constructed the said house "Jala Drushyam" and, therefore, the

possession of the appellant partakes the character of permissive

possession. After the dismissal of the suit the first respondent

issued notice of eviction to the appellant under Section 6 of the

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.

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

Inamdar (Maqtedar) and thereafter succession was granted in

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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.

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 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 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 the land alleged to be grabbed

that he cannot be brought within the mischief of the said

expression. A mere prima 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.

Therefore, the observation 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.

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

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 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

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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.E.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 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.9/15, 9/16, 9/17, 9/18 and 9/19 of

Maqta 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, 9/15 and 9/16 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 Exs.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. 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

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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 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 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

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 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 Inams Act, it

vested in the Government. Admittedly, neither the Inamdar nor

the appellant obtained occupancy certificate in respect of the

land in dispute under Inams Abolition Act. In support of the

allegations in the petition and the plaint PW 1 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 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 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.

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 lessor-Inamdar we are satisfied that neither

any relevant material was excluded from consideration nor any

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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 Salay Mohamed Sait vs. Commissioner of

Income-tax, Madras [AIR 1959 SC 1238]. On the conclusions

arrived at by us no interference is warranted by this Court in

this appeal filed under Article 136 of the Constitution of India.

[See : Mehar Singh & Ors. vs. Shiromani Gurudwara

Prabandhak Committee [2000 (2) SCC 97].

To complete the discussion on the lawful entitlement, the

appellant's claim of title to the land in dispute by prescription

remains to be examined. The contention of Mr.Parasaran is that

the appellant, who has been in possession of the land since

1954 on the basis of Ext.B-39 (an unregistered agreement for

perpetual lease), perfected his title by adverse possession as on

the date of the suit on November 25, 1985.

Mr.Altaf Ahmad, on the other hand, relied on the conduct

of the appellant to show that he had no requisite animus to

possess the land in dispute adverse to the title and interest of the

first respondent and that the essential requirements of adverse

possession were not satisfied as neither the appellant had the

requisite animus nor he fulfilled the requirement of possession

of the land in dispute for the statutory period of 30 years; both

the Special Court as well as the High Court concurrently held

that the appellant did not perfect his title to the land in dispute

by adverse possession and that finding would not be open to

challenge in this appeal.

The Special Court, on the pleadings of the parties, framed

issue No.5, noted above. The onus of proving that issue is on

the appellant who claims title by adverse possession.

The question of a person perfecting title by adverse

possession is a mixed question of law and fact. The principle of

law in regard to adverse possession is firmly established. It is a

well-settled proposition that mere possession of the land,

however long it may be, would not ripe into possessory title

unless the possessor has 'animus possidendi' to hold the land

adverse to the title of the true owner. It is true that assertion of

title to the land in dispute by the possessor would, in an

appropriate case, be sufficient indication of the animus

possidendi to hold adverse to the title of the true owner. But

such an assertion of title must be clear and unequivocal though

it need not be addressed to the real owner. For reckoning the

statutory period to perfect title by prescription both the

possession as well 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.

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,

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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 filing of the suit on November 25, 1985. It is

further averred that his predecessor-in-title being in possession

of the said land for innumerable years prior to 1954 in their

own right as Inamdar, he is entitled to tack on their possession

to perfect his title by adverse possession.

The first respondent-plaintiff, perhaps with a view to

foreclose the plea of adverse possession, stated in the plaint

itself that the possession of the appellant-defendant could not

amount to adverse possession for many reasons; the appellant

raised the building with the permission of the court while

O.S.No.13 of 1958 filed by Rasheed Shahpurji Chenoy was

pending before the Additional Chief Judge, City Civil Court,

Hyderabad, after giving an undertaking and in view of the

undertaking his possession partakes the character of permissive

possession; he paid Siwaijama and applied for occupancy

certificate. The first respondent had instituted eviction

proceeding by issuing notice against the defendant under

Section 6 of the Land Encroachment Act.

To appreciate the plea of the first respondent that the

appellant's possession of the land in dispute has the character of

permissive possession so he cannot acquire title by adverse

possession, it will be appropriate to refer to the averments in the

plaint to understand their true import, which are as follows :

"The suit lands in the beginning were open and

vacant tank bed lands and the defendant raised the

building "Jala Drushyam" with the permission of

the Court while O.S.No.13 of 1958 was pending

before the Court of the Additional Chief Judge,

City Civil Court, Hyderabad, and the undertaking

of the defendant given in the shape of a bond,

while seeking permission to construct the said

building, was to the effect that he would not claim

any compensation from the plaintiff for the

building raised on the suit-lands in case the same

are ultimately declared and held to be the

Government lands............The possession of the

defendant in view of his undertaking in the above

suit partakes the character of permissive

possession and in that view of the matter also the

defendant cannot claim adverse possession against

the plaintiff. (emphasis supplied)"

In the concise statement filed along with the application dated

March 22, 1992 before the Special Court the first respondent

stated :

"Pending O.S.No.13 of 1958 the 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

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'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.

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 it would

relate back to the date of Ex.B-39 (28.11.1954) which would be

the date of commencement of possession. He sought to derive

support from Thakur Kishan Singh (Dead) vs. Arvind Kumar

[1994 (6) SCC 591]. We cannot accept the submission as a

correct proposition of law. In that case the lease deed was

executed on 5.12.1949 but it was registered on 30.3.1950. On

that factual background this Court held :

"Section 47 of the Registration Act provides that a

registered document shall operate from the time it

would have commenced to operate if no

registration thereof had been required or made and

not from the time of its registration. It is well

established that a document so long it is not

registered is not valid yet once it is registered it

takes effect from the date of its execution. (See :

Ram Saran Lall vs. Mst.Domini Kuer [1962 (2)

SCR 474 and Nanda Ballabh Gururani vs.

Smt.Maqbol Begum [1980 (3) SCC 346]. Since,

admittedly, the lease deed was executed on

5.12.1949, the plaintiff after registration of it on

3.4.1950 became owner by operation of law on the

date when the deed was executed."

In the instant case Ex.B-39 (unregistered perpetual lease

agreement dated November 28, 1954) was not registered

subsequently. Ex.B-40 the perpetual lease deed dated

11.12.1957 is a different document which was registered on

12.12.1957. Therefore, Ex.B-40 would relate back to the date

of its execution i.e. 11.12.1957 on its subsequent registration on

12.12.1957 but not on the date of execution of Ex.B-39 i.e.

28.11.1954. The Principle laid down in the above case is,

therefore, of no benefit to the appellant.

The Special Court found that the appellant's possession

could not be ascribed to the date of the agreement for lease deed

dated 28.11.1954 (Ex.B-39) or registered lease deed dated

11.12.1957 (Ex.B-40) which were excluded from consideration.

In regard to Ex.B-39 the Special Court held that it was a

tampered document; the survey numbers of the land leased

were given in it as Survey Nos.9/15 and 9/17 which were

altered to appear as Survey Nos.9/15 to 9/18 and the extent of

the land was not mentioned therein. The Special Court noted

that in the absence of original of Ext.B-40, it was not possible

to say whether Ex.B-40 also suffered from the same vice of

subsequent alteration in the survey numbers, therefore, it

declined to rely on Ex.B-40 also. In view of the criticism 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

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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 was filed to prove that the

appellant has been in possession of the said land from

November 28, 1954. The Special Court counted the period of

possession of the land in dispute from the date the appellant

obtained permission for construction of the house under Ex.B-

42 dated 09.08.1958 and the preceding correspondence under

Exs.B-60 to B-62 between March, 1958 and August, 1958.

Pointing out that the suit was filed on November 25, 1985, so

the period of 30 years was not completed from 1958, it rejected

the plea of adverse possession.

In regard to the animus of the appellant to possess the

land in dispute adverse to the interest of the first respondent, the

Special Court pointed out that the appellant applied for

occupancy certificate to the concerned authority under the

Inams Abolition Act which nullified the animus of adverse

possession. The Special Court also relied on Ex.A-42 (Ex.B-

43) issued by the State demanding siwai jamabandi on May 14,

1960 and payment of the same under Exs.A-44 and A-45 dated

June 30, 1960 to show that the requisite animus was lacking.

These documents were put to the appellant when he was in the

witness box and he admitted the same. On the basis of the

above evidence the Special Court came to the conclusion that

the appellant failed to prove adverse possession. In the said

writ petition the High Court did not find any illegality in the

approach or decision of the Special Court and declined to

interfere with the said finding.

We have already noted above the requirements of

adverse possession.

In Balkrishan Vs. Satyaprakash & Ors. (J.T. 2001 (2)

SC 357), this Court held :

"The law with regard to perfecting title by

adverse possession is well settled. A person

claiming title by adverse possession has to prove

three "nec" - nec vi, nec clam and nec precario.

In other words, he must show that his possession is

adequate in continuity in publicity and in extent.

In S.M. Karim v. Mst. Bibi Sakina (AIR 1964 SC

1254) speaking for this Court, Hidayatullah, J. (as

he then was) observed thus :

"Adverse possession must be adequate

in continuity, in publicity and extent and a plea

is required at the least to show when

possession becomes adverse so that the starting

point of limitation against the party affected

can be found."

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In that case the requirement of animus possidendi was not

adverted to as on facts it was shown to 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.

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.

Regarding the animus of the appellant, admittedly he

claimed as a lessee under the Inamdar. Indeed in his written

statement filed in Rasheed Shahpurji Chenoy'suit (O.S.No.13

of 1958 on the file of Additional Chief Judge, City Civil Court,

Hyderabad) he claimed to be a lessee under the Inamdar. He,

however, did not assert title to the land in dispute in himself nor

did he lay any claim on the ground of adverse possession. Even

otherwise there is no material to show that between November

28, 1954 (unregistered perpetual lease agreement, assuming it

to be free from interpolation and admissible as agreement for

lease and (Ex.B-40) registered lease deed dated December 11,

1957 (assuming that the secondary evidence is admissible) and

the date of filing of the written statement on January 28, 1987

the appellant claimed title to the land in dispute otherwise than

under Ex.B-40 much less by way of asserting adverse title. It is

only in the written statement filed in the present suit that he

pleaded adverse possession for the first time. The possession of

the said land from the date of Ex.B-39, 1954, till the date of the

filing of the written statement in 1987 cannot, therefore, be

treated as adverse because there was no animus possidendi

during the said period. Before the date of filing the written

statement he never claimed title to the land in dispute adverse to

the State. On the other hand, he paid siwai jamabandi and

applied for occupation of rights. Indeed in his deposition as

R.W.1 in chief examination before the Special Court he stated,

"on being satisfied about the nature of the Inam, I

entered into an agreement of perpetual lease on

28.11.1954 with Inamdar as per Ex.B-39...............I

have taken possession from the Maqtedar under

Ex.B-39 on 28-11-1954. Since then I am in

occupation uninterruptedly and enjoying the

same."

We found no assertion of title by adverse possession in his

deposition. Further there is nothing on record to show that his

lessor, Mohd. Nooruddin Asrari, ever claimed the land in

dispute adverse to the State. On these facts there is no scope to

invoke the principle of tacking the possession of the Inamdar or

presumption of continuity of possession backward.

There can be no doubt that passing of adverse order

against the appellant would not cause any interruption in his

possession [See : Balkrishan vs. Satyaprakash (supra)]. So also

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filing of application before statutory authority under Inams

Abolition Act for 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.

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.

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 on Monohar Das Mohanta Vs. Charu Chandra

Pal and Ors. (A.I.R. 1955 S.C. 228).

The principle of lost grant is a presumption which arises

in cases of immemorial user. It has its origin from the long

possession and exercise of right by user of an easement with the

acquiescence of the owner that there must have been originally

a grant to the claimant which had been lost. The presumption

of lost grant was extended in favour of possessor of land for a

considerably long period when such user is found to be in open

assertion of title, exclusive and uninterrupted. However, when

the use is explainable, the presumption cannot be called in aid.

A constitution Bench of this Court explained the principle in

Monohar Das Mohanta (supra) thus,

"The circumstances and conditions under which a

presumption of lost grant could be made are well

settled. When a person was found in possession

and enjoyment of land for a considerable period of

time under an assertion of title without challenge,

Courts in England were inclined to ascribe a legal

origin to such possession, and when on the facts a

title by prescription could not be sustained, it was

held that a presumption could be made that the

possession was referable to a grant by the owner

entitled to the land, but that such grant had been

lost. It was a presumption made for securing

ancient and continued possession, which could not

otherwise be reasonably accounted for. But it was

not a 'presumptio juris et de jure'. A presumptio

juris et de jure, means an irrebuttable presumption,

is one which the law will not suffer to be rebutted

by any counter-evidence, but establishes as

conclusive; whereas a presumption juris tantum is

one which holds good in the absence of evidence

to the contrary, but may be rebutted. [Juris et de

jure - Of law and of right] and the Courts were

not found to raise it, if the facts in evidence went

against it.

"It cannot be the duty of a judge to presume

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a grant of the non-existence of which he is

convinced" observed Farwell, J. in - 'Attorney-

General Vs. Simpson', 1901-2 Ch.671 at p.698

(A)."

[para 7 page 230]

In that case the possession of the defendant was claimed to be

for over 200 years but there was no finding on the length of

possession. On the ground, inter alia, that the land was part of

Mal lands (assessed land) within the zamindari, it was held that

there was no scope for applying presumption of lost grant. In

the case on hand the appellant traces his possession from 1954

under an unregistered perpetual lease from the erstwhile

Inamdar (Maqtedar). Therefore, the presumption of lost grant

will not be available to the appellant.

Thus, it follows that the appellant has unauthorisedly

come into possession of the land in dispute of the first

respondent without lawful entitlement.

Now reverting to the other ingredient of the definition of

the expression 'land grabbing' -- intention of the appellant -

embodied in the phrase "with a view to" illegally taking

possession of the land in dispute or entering into the land for

any of the purposes mentioned in clause (e) of Section 2, the

Special Court discussed exhaustively both the documentary

evidence on record and the oral evidence of the appellant under

the caption - design of the first appellant in obtaining the

documents of title and resisting possession -- and concluded

that he was fully aware of the infirmity of the title of his

vendor for want of confirmation of the grant by the civil

administrator and subsequent mutation proceedings, willingly

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.

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 unauthorised 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

'mensrea' for purposes of offence under the Act.

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 first respondent in the Court

of the IV Additional Judge, City Civil Court, Hyderabad. It is

also averred that the appellant occupied the land in dispute in

the year 1958 and raised building "Jala Drushyam" and on

coming to know of it the first respondent took action for his

eviction under Section 6 of the Land Encroachment Act. It is

also stated that the claim of the appellant to the land in dispute

is not proper, valid or legal as it never belonged to Naimatullah

Shah Maqta and even otherwise the land ceased to be Inam land

from July 20, 1955 and had vested in the first respondent and

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none of the heirs of Naimatullah Shah had come forward to be

declared as occupant under the Inam Abolition Act. The land in

dispute is described by the first respondent as land grabbed and

a declaration is sought from the Special Court that the appellant

is a land grabber.

It may be observed here that though it may be apt yet it is

not necessary for any petitioner who invokes the jurisdiction of

the Special Court/Special Tribunal to use in his petition under

Sections 7(1) and 8(1) of the Act, the actual words employed in

the relevant provisions of the Act, namely, grabbing of the land

without any lawful entitlement and with a view to or with the

intention of (a) illegally taking possession of such lands or (b)

enter into or create illegal tenancies, leases or 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, as the case may be.

Prima facie it will satisfy the requirements of the Act if the

petitioner alleges that the respondent is a land grabber or that he

has grabbed the land. What is pertinent is that the allegations in

the petition/plaint, in whatever language made, should make out

the ingredients of land grabbing against such a person or his

being a land grabber within the meaning of those expressions

under the Act, as explained above. It is only when the

allegations made in the petition/plaint are proved the activity of

taking possession of the land will fall within the meaning of

land grabbing that such a possessor can be termed as a "land

grabber" within the meaning of that expression under the Act.

It 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 Sri

Venkataramana Devaru & Ors. vs. The State of Mysore &

Ors. (1958 SCR 895 at 906) 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 make no difference. In Nedunuri Kameswaramma

vs. Sampati Subba Rao [1963 (2) SCR 208], Hidayatullah,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 attempted to prove that this was a

Dharmila inam and to refute that this was a

Karnikam service inam. No doubt, no issue was

framed, and the one, which was framed, could

have been more elaborate; but since the parties

went to trial fully knowing the rival case and led

all the evidence not only in support of their

contentions but in refutation of those of the other

side, it cannot be said that the absence of an issue

was fatal to the case, or that there was that mis-

trial which vitiates proceedings."

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The same view is expressed by this Court in the following two

cases : Kali Prasad (Dead) by Lrs. & Ors. vs. M/s.Bharat

Coking Coal Ltd. & Ors. [1989 Supl. (1) SCC 628] and Sardul

Singh vs. Pritam Singh & Ors. [1999 (3) SCC 522].

Now, in the instant case the appellant has never pleaded

before the Special Court that necessary pleading in regard to the

requirements of land grabbing is lacking in the case. On the

other hand, he understood the averments in the petition read

with the plaint correctly as allegations of land grabbing as can

be seen from the affidavit containing objections to the Gazette

Notification dated April 1, 1992, referred to above, filed on

April 16, 1992 (affidavit was attested on April 10, 1992). He

stated "I deny the petitioner's allegation of land grabbing

whatsoever, made in its petition dated 20.3.1992". He further

stated that the documents filed by him and the first respondent

"nullify the petitioners allegation of land grabbing, claim of

title over the land and claim of right to get the possession of the

land and the building.....". On this pleading the Special Court

framed issue No.6 aforementioned. The parties adduced

evidence, oral and documentary, on that issue. We have

already discussed documentary evidence above. PW 1 in his

statement categorically stated that the appellant was a land

grabber. What is surprising to note is that there was no cross-

examination on that aspect. What is more surprising is that in

his deposition he did not even state that he was not a land

grabber and the land in dispute was not a grabbed land. We

have not taken this as his admission but only an aspect in

appreciation of oral evidence.

The Special Court is, therefore, correct in discussing the

evidence on record under the caption 'design' in view of the

pleading on that aspect, adverted to above and the High Court

rightly upheld the same. We have already pointed out that the

activity of grabbing of any land should not only be without any

lawful entitlement but should also be, inter alia, with a view to

illegally taking possession of such lands. These two ingredients

are found against the appellant.

It is nonetheless submitted by Mr.Parasaran that the

plaint mentions that the possession of the appellant partakes the

character of permissive possession and this averment negates

the very concept of land grabbing. It is no doubt true that if the

possession is permissive then it cannot be treated as illegal for

purposes of clauses (d) and (e) of sub-section (2) of the Act.

We have already discussed above with regard to the alleged

plea of permissive possession and held that those averments in

the plaint would not constitute plea of 'permissive possession'.

In the light of the above discussion, we have no option

but to sustain the view of the High Court in approving the

finding of the Special Court on Issue No.6, that the appellant

falls within the mischief of the definition of the expression

"land grabber" under the Act.

In the result, we uphold the judgment and order of the

High Court under challenge declining to interfere with the

judgment and decree of the Special Court. The appeal is

dismissed; the parties shall bear their own costs.

.................................................J.

[Syed Shah Mohammed Quadri]

.................................................J.

[S.N.Phukan]

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January 29, 2002.