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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5113 OF 2017

(Arising out of SLP(C) No.26925 of 2010)

M/s Kaushik Coop. Building Society … Appellant(s)

:Versus:

N. Parvathamma & Ors. ... Respondent(s)

WITH

CIVIL APPEAL NO. 5116 OF 2017

(Arising out of SLP(C) No.1632 of 2008)

CIVIL APPEAL NO. 5117 OF 2017

(Arising out of SLP(C) No.7713 of 2008)

CIVIL APPEAL NOS. 5118-5119 OF 2017

(Arising out of SLP(C) Nos.23724-23725 of 2008)

CIVIL APPEAL NOS. 5120-5126 OF 2017

(Arising out of SLP(C) Nos.27319-27325 of 2008)

CIVIL APPEAL NO. 5128 OF 2017

(Arising out of SLP(C) No.26142 of 2011)

CIVIL APPEAL NO. 5130 OF 2017

(Arising out of SLP(C) No.29328 of 2010)

CIVIL APPEAL NO. 5131 OF 2017

(Arising out of SLP(C) No.26140 of 2011)

CONTEMPT PETITION (C) NO.118/2013 in SLP (C) No.26140/2011

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J U D G M E N T

Pinaki Chandra Ghose, J.

1.Leave granted.

2.Present appeals have been directed against the common

judgment and order dated 6

th

August, 2010 passed by the

High Court of Andhra Pradesh at Hyderabad in Writ Petition

Nos.11869 & 11951 of 2010, whereby the writ petitions filed

by the appellants were dismissed. The High Court was of the

view that “whether filing of LGC is barred by res-judicata or

constructive res-judicata is a mixed question of law and fact,

which can be decided only on appreciation of evidence led in to

the said effect”. The High Court was further of the view that

the Special Court constituted under the provisions of A.P.

Land Grabbing (Prohibition) Act, 1982 (for short “the Act”) did

not commit any error in taking cognizance of the case being

Land Grabbing Case No.44/2000.

3.Since the present appeals, by special leave, have been

filed assailing the same common judgment, they were heard

together and are being disposed of by this common judgment.

For the sake of convenience, Civil Appeal arising out of Special

Leave Petition (Civil) No.26925 of 2010 is taken as the main

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appeal. It is imperative to record brief facts for the disposal of

this case, which are as follows:

3.1One V.R.K. Shastry had purchased the land to an extent

of 12 acres 9 guntas out of 16 acres 9 guntas of land in Survey

No.129/68 Paiki from one Md. Moulana vide agreement dated

29.12.1963. A suit for specific performance of the said

agreement having been dismissed, V.R.K. Shastry filed an

appeal before the High Court of Andhra Pradesh which was

numbered as CCCA No.14 of 1972. The High Court of Andhra

Pradesh while allowing CCCA No.14 of 1972 vide judgment

and decree dated 26.10.1976 decreed the suit for specific

performance wherein it was held that the suit property was

comprised in Survey No.129/68 Paiki and not in Survey

Nos.139/51 & 129/52 and is separate and distinct land. It is

pertinent to mention here that the defendant died during

pendency of suit and his legal representatives were impleaded

in the aforesaid suit, who had earlier raised the objection of

different survey numbers. Subsequently, the decree in CCCA

No.14 of 1972 came to be amended by the High Court and the

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judgment debtors were directed to execute the sale deed in

favour of the decree holder or his nominee.

3.2After obtaining the decree V.R.K. Shastry applied for

exemption under the ULC Act. The Government of Andhra

Pradesh vide G.O.Ms. No.523 dated 26.03.1979 granted

exemption in favour of V.R.K. Shastry. Part of said land was

purchased by the appellant society and Municipal Corporation

of Hyderabad sanctioned layout in File No.45/layout/8/85 in

favour of the appellant society for development of 7.00 acres of

land out of 12 acres 9 guntas in Survey No.129/68 Paiki. Rest

of the portion in the above said decreetal land was assigned to

one V. Narsimha Reddy and others under the Assignment

Deed dated 15.01.1988. Later, 41 sale deeds were registered in

favour of the assignees, after this Court on 12.09.1994

dismissed SLP(C) No.11381/1994 filed by the judgment

debtors and upheld the order of the executing court permitting

the assignees to obtain registered sale deeds in their favour.

The High Court dismissed the appeal being AAO

No.2647/1998 vide its order dated 27.10.1998 and the order

of the learned executing court attained finality.

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3.3Between year 1989 and 1996, three different land

grabbing cases under the Act were filed in the Special Court

against the appellant society by the legal representatives of

deceased Md. Moulana, Sai Nagar Housing Co-operative

Society and the State of Andhra Pradesh, being LGC

No.46/1989, LGC No.29/1992 and LGC No.15/1996

respectively, alleging that the property claimed by the

appellant herein was not a part of Survey No.129/68 but that

of Survey No.129/51 and 129/52. All the land grabbing cases

were dismissed and when a batch of writ petitions were filed in

the High Court of Andhra Pradesh, the same were dismissed

vide a common judgment dated 01.05.2007 passed by the

High Court. The High Court in said common judgment had

upheld that the disputed property is part of land in Survey

No.129/68 and the same belonged to the appellant society. It

is pertinent to mention here that LGC No.15/1996 was

dismissed as withdrawn.

3.4One K. Balram and few others filed another Land

Grabbing Case No.44 of 2000 before the Special Court

established under the Act in respect of Land in Survey

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No.129/52, RS No.327, claiming that he and other members of

the Hindu Joint Family, he as the manager, had purchased

the disputed property under the registered Sale Deed dated

25.03.1967 from one of the legal representatives of Md.

Moulana, namely, Abdul Rub. The above-noted purchaser/

assignee of the land, namely, V. Narsimha Reddy was

impleaded in the said case and the applications filed by the

said V. Narsimha Reddy and the appellant herein, for

quashing of LGC No.44/2000 on the ground of

maintainability, were dismissed vide order dated 30.04.2010.

3.5Being aggrieved the appellant herein and the above

named V. Narsimha Reddy filed Writ Petition Nos.11951/2010

and 11869/2010, respectively, before the High Court of

Andhra Pradesh for quashing of LGC No.44/2000. The High

Court vide impugned common judgment dismissed both the

writ petitions and upheld the order passed by the Special

Court whereby it was held that LGC No.44/2000 in the Special

Court is maintainable. Hence, the present appeals by special

leave.

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4.After perusing the entire material placed on record before

us, we have noticed that High Court had framed two points for

consideration, viz.,

a)Whether the Special Court committed any illegality

in taking cognizance of the case under Section 8(1)

of the Act?

b)Whether LGC pending before the Special Court is

liable to be rejected by setting aside the common

order dated 30.04.2010 passed in I.A Nos.585/2007

and 216/2010 and allowing the said petitions?

We have further noticed that the High Court has

answered both the above questions in the negative and

observed that entire trial has already been completed except

the cross-examination of Mandal Revenue Officer in the said

pending LGC. It was further observed that whether filing of

LGC is barred by res-judicata or constructive res-judicata, is a

mixed question of law and fact, which can be decided only on

appreciation of evidence led to that effect.

5.We have carefully perused the entire record and in our

considered view, the only question of law which requires to be

answered by this Court is:

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Whether the High Court is justified in not quashing

the proceedings in LGC No.44/2000, when the

Special Court ex-facie lacks jurisdiction over the

subject matter in the instant case in the light of

principles of res-judicata?

6.The main point revolves around the principles of

res-judicata which is neither against public policy nor

res-integra to civil procedure prevailing in our country. The

doctrine of res judicata is a wholesome one which is applicable

not merely to matters governed by the provisions of the Code

of Civil Procedure but to all litigations, as was observed by

A.Alagiriswami, J. in Bombay Gas Co. Vs. Jagannath

Pandurang, (1975) 4 SCC 690 (para 11).

7.The question of res-judicata is not res integra to our

judicial system. The rule of res judicata while founded on

ancient precedent is dictated by a wisdom which is for all time

and that the application of the rule by the Courts should be

influenced by no technical considerations of form, but by

matter of substance within the limits allowed by law:

Sheoparsan Singh Vs. Ramanandan Prasad Narayan

Singh, AIR 1916 PC 78. Furthermore, it is well settled that the

principle of res judicata is applied for the purpose of achieving

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finality in litigation as laid down by this Court in the case of

Sri Bhavanarayanaswamivari Temple Vs. Vadapalli

Venkata Bhavanarayana Charyulu , (1970) 1 SCC 673,

relevant paragraph of which is quoted below:

"8. … It was observed that the doctrine of res

judicata is not confined to a decision in a suit but it

applies to decisions in other proceedings as well. But

how far a decision which is rendered in other

proceedings will bind the parties depends upon other

considerations one of which is whether that decision

determines substantial rights of parties and the other

is whether the parties are given adequate

opportunities to establish the rights pleaded by them.

The doctrine of res judicata is not confined to

the limits prescribed in Section 11, Civil

Procedure Code. The underlying principle of

that doctrine is that there should be finality in

litigation and that a person should not

be vexed twice over in respect of the same

matter.".

(emphasis supplied)

8.To constitute a matter res judicata, as observed by this

Court in Syed Mohd. Salie Labbai Vs. Mohd. Hanifa , AIR

1976 SC 1569 = (1976) 4 SCC 780, the following conditions

must be proved: (1) that the litigating parties must be the

same; (2) that the subject-matter of the suit also must be

identical; (3) that the matter must be finally decided between

the parties; and (4) that the suit must be decided by a court of

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competent jurisdiction. In the case of Narayana Prabhu

Venkateswara Prabhu Vs. Narayana Prabhu Krishna

Prabhu, AIR 1977 SC 1268 = (1977) 2 SCC 181, it was

observed by this Court: “One of the tests in deciding whether

the doctrine of res judicata applies to a particular case or not

is to determine whether two inconsistent decrees will come

into existence if it is not applied.”

9.We have heard the arguments of the learned counsels.

Learned counsel for appellant society would argue that the

main issue in the present matter is not an inter-se title

dispute as none of the other parties are claiming title over

Survey No.129/68 Paiki but are only disputing the identity of

the suit land. It was further argued that identity of the suit

property has been settled to be in Survey No.129/68 Paiki in

more than one legal proceeding, few of which have attained

finality. It was further submitted that the impugned judgment

does not warrant interference on account of the fact that the

Special Court has gone elaborately into the evidence produced

before it by the respective parties.

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10.It was further submitted that issues as to what

constitutes jurisdictional facts for the purpose of Sections 2(d)

and 2(e) of the Act has been elaborated upon by this Court in

Om Parkash Singh Vs. M. Lingamaiah & Ors. , (2009) 12

SCC 613, and taking into consideration the extensive

discussion made by this Court on scope and definition of the

terms “Land-grabbers”, it could be said that the appellant

society is a land grabber.

11.Per contra, the counsel for respondents has submitted

that respondent, namely, Sri Sai Nagar Co-operative Housing

Society Ltd. was recognized as the vendors by the respondent

State by way of Government Order. He further submitted that

Survey No.129/52 has been re-numbered as Survey No.327

and appellant society and others come within the ambit of

Section 2(d) of the Act, because as per the Rectification Deed

from its vendors and thus learned Special Court and the High

Court are erroneous in law because the Special Court under

the Act has gone beyond jurisdiction.

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12.It was argued by the learned counsel for the respondents

that the principle of res judicata cannot be applied to this

particular case because respondent society is bona fide

purchaser of the scheduled property and as such both the

Special Court and the High Court were wrong in coming to a

conclusion that the respondent society was to be non-suited

on the ground of res judicata based on the judgment passed in

CCCA No.14 of 1972.

13.Learned counsel for respondents who are legal

representatives of the deceased Md. Moulana, submitted that

the Special Court had requisite jurisdiction to go into the

questions of title and identity. He relied upon the judgment of

this Court in the case of Mandal Revenue Officer Vs.

Goundla Venkaiah & Anr. , (2010) 2 SCC 461, para 20,

wherein it was held that the Land Grabbing Act is a

self-contained Code which deals with various facets of Land

Grabbing and provides for a comprehensive machinery for

determination of various issues relating to land grabbing,

including the claim of the alleged land grabber that he has a

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right to occupy the land or that he has acquired title by

adverse possession.

14.It was further submitted by the learned counsel that the

findings in OS No.29/1965, CCCA No.14/1972 and the E.A.

No.14/1995 in E.P. No.20/1995 do not have force so as to

attract principles of res judicata as against Abdul Bashisht

and his legal heirs and Abdul Rub and his legal heirs. He drew

our attention to the relevant part of the order dated

17.04.1970, passed by the learned II Additional Chief Judge in

O.S. No.29/1965, which is as follows:

“6. Subsequent to the filing of the suit the fourth

defendant died and no legal representatives have

been brought on record. Hence the suit was abated

against the 4

th

defendant.”

15.Learned counsel relied upon the following judgments of

this Court: Williams Vs. Lourdu Swamy & Anr , (2008) 5

SCC 647; Sajjadda Nashin Sayyeed Vs. Musa Dada Bhai

Umar, (2000) 3 SCC 350 and Malia Bajrangi dead through

LRs & Anr. Vs. Badri Bai wife of Jagannath & Anr , (2003)

2 SCC 464, wherein scope of Section 11 of the Code of Civil

Procedure, 1908 was discussed and it was found that when

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the matter in issue is substantially different from the previous

proceedings, res judicata could not be applied.

16.Learned counsel for respondents (L.Rs. of deceased Md.

Moulana) concluded his arguments while submitting that the

Special Court and the High Court while appreciating the

evidence are per se perverse while relying upon the law laid

down by this Court in Shama Prassanth Raji Vs. Ganapath

Rao & Ors., (2000) 7 SCC 522, which is as follows:

“Undoubtedly, in a proceeding under Articles 226

and 227 of the Constitution the High Court cannot sit

in appeal over the findings recorded by a competent

Tribunal. The jurisdiction of the High Court, therefore,

is supervisory and not appellate.

Consequently Article 226 is not intended to enable

the High Court to convert itself into a Court of Appeal

and examine for itself the correctness of the decision

impugned and decide what is the proper view to be

taken or order to be made. But notwithstanding the

same on a mere perusal of the order of an inferior

Tribunal if the High Court comes to a conclusion that

such Tribunal has committed manifest error by

mis-construing certain documents, or the High Court

comes to the conclusion that on the materials it is not

possible for a reasonable man to come to a

conclusion arrived at by the inferior Tribunal or the

inferior Tribunal has ignored to take into

consideration certain relevant materials or has taken

into consideration certain materials which are not

admissible, then the High Court will be fully justified

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in interfering with the findings of the inferior

Tribunal.”

17.Before arriving at the conclusion, we would like to

emphasize on the ratio of another judgment of this Court in

the case of Ramji Gupta & Anr. Vs. Gopi Krishan Agrawal

(dead) & Ors., (2013) 9 SCC 438, para 15, which reads as

follows:

“In order to operate as res judicata, the finding must

be such that it disposes of a matter that is directly

and substantially in issue in the former suit, and

that the said issue must have been heard and

finally decided by the court trying such suit. A

matter which is collaterally or incidentally in issue

for the purpose of deciding a matter which is directly

in issue in the case, cannot be made the basis for a

plea of res judicata.”

18.We have perused the written notes on arguments of the

learned counsels for both the parties and after a punctilious

scrutiny of complete record, we are of the considered opinion

that it may be true that the Court at initial stage may not

enter into the merit of the matter. Its opinion in the nature of

things would be a prima facie one. But the Court must also

consider that the analogy of res-judicata or of the technical

rules of civil procedure is, in cases like the present one,

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appropriate and the Courts are expected to administer the law

so as to effectuate its underlying object. Court shall also bear

in mind that the basic character of this principle is public

policy and preventive as to give finality to the decision of the

Court of competent jurisdiction and prevent further litigation.

19.In our considered opinion, matter in issue in the pending

suit before the learned Special Court in LGC No.44/2000 and

previous decided suits is not merely identical but very same.

Other ingredients of the principle of res-judicata are also

fulfilled. Moreover, once identity of the property and the title

thereof is finally adjudicated in CCCA No.14/1972, holding

that land is situated in Survey No.129/68 Paiki, it operates as

res judicata.

20.Judged in this background and the principle set out

above, the inevitable conclusion is that both the Special Court

and the High Court have committed error in not appreciating

the fact that orders, judgments and decrees passed in

previously decided land grabbing cases have attained finality,

wherein it was reiterated many a times that the appellant

society i.e. M/s. Kaushik Coop. Building Society is the

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owner of the suit property which is comprised of Survey

No.129/68 and not in Survey No.129/51 or 129/52 (which

has been re-numbered as 327). Thus, in our considered

opinion, the approach of the High Court in the impugned order

seems to be erroneous. Therefore, the question before us is,

thus, answered in negative.

21.Hence, the appeals filed by the appellant society are

hereby allowed and the appeals filed by the respondents

herein are hereby dismissed. Consequently, the impugned

judgment passed by the High Court as also the order passed

by the Special Court in I.A. No.585/2007 and I.A.

No.216/2010 in LGC No.44/2000, are hereby quashed and set

aside. Contempt Petition (Civil) No.118 of 2013 in SLP(C)

No.26140 of 2011 filed by respondents, namely, Sara Abdul

Gafoor & Ors., is also dismissed. There shall be no order as to

costs.

……..………….………….J

(Pinaki Chandra Ghose)

……..………….………….J

New Delhi; (Uday Umesh Lalit)

April 11, 2017.