REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2049 OF 2013

UNION OF INDIA & ANR .....APPELLANT(S)

VERSUS

S. NARASIMHULU NAIDU (DEAD) THROUGH

LRS. AND ORS

.....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 13 OF 2012

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeals are directed against an order passed by the

High Court of Judicature at Andhra Pradesh on 25.4.2011

whereby an order passed by the Special Court, Hyderabad

1

under the Andhra Pradesh Land Grabbing (Prohibition) Act,

1982

2

on 19.9.2008 was not interfered with.

2.Brief facts leading to the present appeals are that the

1 For short, the ‘Tribunal’

2 For short, the ‘Act’

1

respondent Nos. 1 to 6

3

being legal heirs of Late Sri S.V.

Srinivasulu Naidu filed an application under Section 8 of the Act

before the Tribunal alleging that the land measuring 7128.5 sq.

yards in Survey No. 299/2 (old Survey No. 403/1), Ward No. 8,

Block-3, Shaikpet Village, Hyderabad, is the land grabbed by

the Union of India. It was pleaded that a notification is required

under Section 8(6) of the Act, which was published in the extra

ordinary Gazette of Andhra Pradesh on 22.1.2004 but no

objections against the same were received. The applicants

alleged that their father had purchased 2 acres 27 guntas of

land in Survey No. 299/2 from one Shri Shaik Ahmed under two

registered sale deeds dated 12.12.1959 (Exhs. A1 and A2). The

purchaser, i.e., the father of the applicants was put in

possession thereof. Out of the total land purchased by the

father of the applicants, 7 guntas of land was taken over for the

purpose of widening of road and remaining part i.e. 2 acres 20

guntas (12100 sq. yards) was held by him. It was further

alleged by the applicants that their father sold the land

measuring 4971.5 sq. yards out of 12100 sq. yards in Survey

No. 299/2 with specific boundaries via registered sale deed

dated 20.3.1964 (Ex.A3). The remaining part of the land i.e.,

7128.5 sq. yards was however retained by their father.

3. It was alleged that the Military Contract Committee started

constructing sheds on the land sold by the father of the

3 Hereinafter referred to as the ‘applicants’

2

applicants. As a result, the purchasers filed original suit

4

on or

about 14.4.1965 against the Union of India, State of Andhra

Pradesh and the father of the applicants, which was later

assigned as suit OS No. 175 of 1970 (Old No. 72 of 1965). The

Plaintiff claimed that his vendor Shaik Ahmed and then the

father of the applicants was the owner in possession of the

property since purchase of the property on 20.3.1964, but the

contractors of the first defendant, the appellant herein,

trespassed into the schedule property on 12.7.1964. The Plaintiff

thus sought possession of the land purchased or in the

alternative, recovery of sale consideration paid to the father of

the applicants. It was inter-alia pleaded as under:-

“4.Under these circumstances, Sri Shaik Ahmed sold

the entire Ac.2-27 guntas of the said property to Sri S.V.

Srinivasulu Naidu, I.P.S., Superintendent of Police, Crime

Branch (C.I.D.), Hyderabad, the 3

rd

defendant herein by

means of two sale deeds dated 12-12-1959 and put the

latter in possession of the same. While in possession

and enjoyment of the same, and paying taxes thereon,

the said Sri S.V. Srinivasulu Naidu (the third defendant

herein) sold 4971 ½ square yards of site out of the said

S.No.299/2, of Shaikpet village more fully described in

the schedule given below and herein after called the

schedule property to the plaintiffs herein by means of a

sale deed dated 20-3-1964 for a consideration of Rs.

28,000/-. Ever since the date of sale, the plaintiffs

herein have been in undisputed possession and

enjoyment of the schedule property. Thus the plaintiffs

are the absolute owners of the schedule property

enjoying the same with absolute rights."

4.The schedule property was the property purchased by the

plaintiff. In the written statement filed by the father of the

4 Hereinafter referred to as the ‘first suit’

3

applicants, it was stated that the said defendant had perfect

right and legal title to the land when he effected sale in favour

of the Plaintiffs. The said defendant asserted that he had no

objection to the Plaintiff suit being decreed. It is pertinent to

mention that the said defendant had not filed any counter claim

of possession of the remaining land after selling the land to the

Plaintiff. The parties went to trial on the following issues:

“1.Whether the plaintiffs and their predecessor in

interest had title to and possession over the suit land

within 12 years prior to the suit?

2. Whether the suit land belonged to Ex-Hyderabad

State Army and whether it was subsequently handed

over to defendant No.1 in 1958?

3. Whether the patta and the settlement relied upon

by the plaintiff were cancelled and if so, whether the

cancellation is legal and valid?

4. Whether the suit land was auctioned by defendant

No.1 for grazing and grass cutting?

5. To what damage if any, are the plaintiffs entitled

against the 3

rd

defendant alternatively?

6. To what relief, if any are the plaintiffs entitle?”

5.The Learned Trial Court decided Issue No. 1, whereby the

following findings were recorded: -

“19.Another piece of evidence available from the

material on record is Ex.B.22. It is a letter from the

Tahsildar (West) to the commissioner of the Municipality

wherein it is clearly mentioned that No.299/2 is the patta

land of Shaik Ahmed and that Abdul Gani named

mentioned has no concern with it. Third one is the order

of the land record officer B.21 wherein it is clearly

mentioned that S.No.129/(ld) and 403 (new) measuring

(7) acres was granted as patta to Shaik Ahmed this

material is quite sufficient to conclude that Shaik Ahmed

4

has his possession over the suit land since 1339 Fasli.”

20.Next point to be considered is whether Shaik

Ahmed sold the suit land to the third defendant. His

totally manifest by the two agreement of sale B.2 and

B.3 and the two subsequent register sale deeds Ex.B.4

and B.5. In this matter B.7 entered witness box. Shaik

Ahmed is stated to have died few years ago. DW-2 has

testified this matter. Third defendant as DW.1 stated that

he purchased the land in 1959 and shortly after one

Heeralal filed a suit against him claiming the suit land.

That suit ultimately ended in a compromise. Ex.B.26 and

B.27 are the two receipts of Heeralal in

acknowledgement of the receipt of money and also

about compromising the matter.

21.Ex.B.28 to show that Chintal Basti Samshan

Committee member objected and alleged that a portion

of the suit land was the grade land and therefore, the

third defendant cannot occupy it. In that connection, the

third defendant made a compromise by giving some land

as well as some cash amount to the said committee

members and ended that matter. According to D.3 he did

not find time to construct his proposed house on account

of the above mentioned dispute. Meanwhile the plaintiffs

approached him and he sold the suit land to them. The

Sale Deed executed by him i.e. within four months the

alleged encroachments was made. In this brief period

the plaintiffs were not expected to do any thing in

exercising of their rights as purchasers. These facts

coupled with the documents stated above, are quite

sufficient to conclude that the plaintiff and their

predecessors in title and undoubted by their possession

over the suit land within twelve years prior to the

alleged trespass. In other words, the plaintiffs have

successfully, discharged the onus placed on them under

issue No.1, therefore find this issue in the affirmative.

(Emphasis Supplied)

27………………………Thus viewed from any perspective

there is no material to believe that the suit belonged to

the Ex Hyderabad State Army and that is was

subsequently handed over by the Second defendant to

the first defendant. I therefore, find this issue in the

negative.”

6.The suit was thus decreed on 13.8.1970 declaring the plaintiffs

5

as title holders of the suit property. An appeal was filed by the

Union of India before the High Court of Andhra Pradesh but the

said appeal was dismissed on 31.3.1975. Thereafter, the

plaintiffs in the suit filed execution petition in which the

applicants had chosen not to participate. The father of the

applicants died on 17.6.1993. Thereafter, the applicants

invoked the jurisdiction of the Tribunal.

7.The applicants asserted before the Tribunal that they are

original owners of the land in question and the Government had

no right or title over the property. While relying upon

proceedings initiated by the Plaintiffs, the applicants asserted

as follows:-

“………………..The said suit as contested and the Hon’ble

4

th

Addl. Judge, City Civil Court, Hyderabad had decided

the issues of title and possession along with other issues

vide judgment and decree dated 13.08.1970. It is

submitted that the Hon’ble IV Additional Judge had held

that our father is the owner and was in possession of the

property since more than twelve years.”

8.The appellant herein filed a written statement, inter alia,

pleading that the application is not maintainable as it does not

disclose the facts relating to the alleged land grabbing. It was

also pleaded that the facts narrated by the applicants

themselves show that they have lost their possession long ago

and after being dispossessed, the applicants had failed to take

any steps to get the land restored to them. The filing of the suit

and dismissal of appeal was accepted. It was also pleaded that

in execution of the previous decree, the decree holder and the

6

applicants had entered into a written compromise which was

filed in execution application No. 220/95 seeking recording of

satisfaction of the decree. In such proceedings, the Union

proposed for exchange of the defence land with the decretal

land in response to a letter dated 19.8.1995. In terms of such

compromise, possession of the land measuring 4971.5 sq. yards

was delivered to the decree holder on 14.12.1995. It was

stated that the schedule land is a defence land and appellant is

not a land grabber. It was further asserted that the Tribunal was

not competent to decide the title of the appellant for it being

defence land. Still further, it was stated that the land

measuring 2 acres 20 guntas was in possession of the

applicants since 1.4.1958 when it was handed over to the

Government of India, Ministry of Defence by the Collector,

Hyderabad. The stand of the appellant in the written statement

inter-alia is as under:-

“7………………………. Therefore, the Statement of the

applicant that since the construction was started in the

land belonging to the subsequent purchasers, they filed

the suit is appears to be absolutely ridiculous because

the whole extent of the land measuring 2 acres 20

guntas was under the possession of the defence and the

applicant had not claimed the suit schedule land at any

point of time before 16.01.1996. So it could be clearly

seen that the suit schedule land was under the

possession of the defence more than 30 years before

claiming by the applicant. The contention of the

applicant that IV Additional Judge, City Civil Court,

Hyderabad held that his father is the owner and was in

possession of the property since more than 12 years is

wrong. The Hon’ble Judge in issue No. 6 had stated that

the “Vendor”, the third defendant has satisfactorily

proved by adducing oral as well as documentary

7

evidence that he as well as his predecessors-in-title,

Shaik Ahmed were in possession of the suit land i.e. only

4971 sq. yards whereas the applicant is claiming the

remaining extent of land msg 7128.5 sq. yards.

8……………………. To settle the matter, the Government

of India, Ministry of Defence vide post copy of telegram

No. 31/27/L/L&C/64 dated 11.08.1995 conveyed

approval for exchange of the defence land with that of

decretal land within Pension Paymaster’s Office.

Accordingly the Counsel for the decree holders have

accepted the said exchange proposal on 19.08.1995. On

receipt of the acceptance, joint survey was conducted to

mark the decretal land measuring 4971.5 sq. yards.

Accordingly a plan showing the total extent of the

defence land, the land already decreed by the lower

court in OS No. 175/1970. Accordingly an extent of land

admeasuring 4971.5 sq. yards handed over the decree

holders by a proceedings dated 14.12.1995 of the

Advocate Commissioner and the Contempt Case No.

411/1995 was finally closed on 15.12.1995, since land

was handed over to the parties as per the compromise

Memo.

xxxx xxxx

10 ………………………………The above land is under the

possession of the Union of India for the last several years

which is more than 30 years. Shri S.V. Srinivasulu Naidu

so called owner of the subject land did not filed any suit

of claiming the property which is under the occupation of

the Union of India for the last more than 30 years. The

said S.V. Srinivasulu Naidu was only Defendant No.3 in

the above suit and appeal and as such by virtue of the

decree passed in the said cases do not create a right in

favour of Sri S.V. Narsimhulu Naidu to claim any land

which is under the occupation of Union of India on the

basis of below grounds:-

xxxx xxxx

13. With regard to unnumbered para 14 to 16 of the

petition, it is submitted that the contention of the

applicant in this para is that they are the owners of the

schedules land is hereby denied. Land admeasuring 2

acres 20 guntas situated at Shaikpet Village, Golconda

Mandal Hyderabad which was the property of Nizam

forces and used as “Minature Rifle Range” was handed

8

over to the Government of India, Ministry of Defence on

01.04.1958 vide Board proceedings dated 19.03.1958 by

the Collector and the same is vested with the

Government of India under Article 295 (i) of the

Constitution of India. Being a defence land, the

department is not the land grabber. For the defence land

enactment of the Parliament is applicable whereas Land

Grabbing Court is having jurisdiction only on the State

Land.

It is submitted that on the basis of uninterrupted

possession of the defence over the schedule property

from more than last 30 years and as the Land Grabbing

Court is having the jurisdiction only on the State Land

the above case is not maintainable before this Hon’ble

Court….”.

9.The learned Tribunal framed the following issues on the basis of

pleadings of the parties:

“(1)Whether the applicants are the owners of the

application schedule property?

(2)Whether the rival title set up by the respondents is

true, valid and binding on the applicants?

(3)Whether the respondents are land grabbers within

the meaning of the Act XII of 1982?

(4)Whether the respondents prescribed title by

adverse possession?

(5)To what relief?”

10.The appellants had never asserted their possession as adverse

or hostile to the knowledge of true owner. The plea of the

appellant was that they are in possession of the said property

as owners for the last 30 years. Therefore, issues were not

correctly framed. Accordingly, Issue Nos. 1 and 2 were decided

together.

9

11.In evidence, the applicants examined PW 1 - S. Janardhan who

had produced sale deeds by which their father had purchased

the land but the patta said to be executed in favour of Shaik

Ahmed was not produced. A perusal of the two sale deeds Ex A1

and A2 executed by the said Shaik Ahmed also does not

disclose the date of any patta. Thus, in the present proceedings,

neither the sale deeds have mentioned about the patta nor

such patta had been produced or proved on record. In fact, the

entire claim is based upon the judgment in the first suit, which

is evident from the statement of PW 1, when he said that “a

Division Bench of the Hon’ble High Court reported in 1990 has

categorically held that once the Hon’ble Court upheld the title

and possession in earlier proceedings, it is not open for any one

of the authorities to deny the same taking untenable pleases.

Once the source of title is common, any party taking a different

plea in subsequent proceedings is barred by res judicata".

12.The Tribunal inter-alia returned the following findings:

“52.Srinivasulu Naidu purchased the land under Exs.A-

1 and A-2 in the year 1959. There is a finding in that suit

that 12 years prior to filing of the suit, Shaik Ahmed and

Srinivasulu Naidu had been in possession of the land. So

the land has been in their continuous possession since

1949-50. Delivery of Acs.2.27 guntas of land to the

Defence by the State Government is only a paper

delivery as per Ex.B14 proceedings. So it can be inferred

that actual delivery of land of Acs. 2.27 guntas was not

made and it is only a paper delivery. This land alone was

not alleged to have been delivered as per Ex.B14

proceedings dt. 19-3-58. About Acs.1500-24 guntas of

land in four different plots in different areas was ordered

to be delivered by the State Government to the Union of

10

India. According to the Union of India, Acs.2.27 guntas is

part of Asfanagar lines which is shown as item No. V in

Ex.B-14 at page No.2.

xx xx xx

57.The contention of the Advocate for the

respondents is that when the Union of India claimed that

it is in possession since 1958 in the suit OS 175/70, title

to the balance land is to be decided elsewhere. It is

further contended that Exs. A1 and A2 sale deeds are

valid and title passed to the applicants but to show

whether Shaik Ahmed had title or not for the remaining

land, suit is not filed by the applicants. Therefore, the

applicants waived their right and their claim is time

barred. When a finding is given in the suit that State

Government which gave land to Union of India has no

title and that Srinivasulu Naidu and his vendor had title,

there is no need for Srinivasulu Naidu to file another suit

for declaration of his title.

xx xx xx

59.If the land which was delivered to R-1 herein and

to the other decree holders in execution proceedings, in

exchange of suit schedule land owned by Srinivasulu

Naidu, the exchange itself is illegal. Without establishing

title to the remaining land by the Union of India the

Union of India has entered into the compromise for

exchange of the Application schedule land. A

Compromise can be made between the decree holders

and judgment debtors with regard to the decree

schedule land only but it should not be in respect of

some other land not covered by the decree. For retaining

the decreetal schedule property by Judgment Debtors,

some other land which is not subject matter of the suit

was given to the decree holders. Union of India was

aware that this land which was delivered to decree

holders in exchange was mentioned as boundary to the

decreetal schedule property belonged to Srinivasulu

Naidu. Srinivasulu Naidu was a party to the suit. Even

though no relief is granted against Srinivasulu Naidu in

the said suit, at-least notice should be given to

Srinivasulu Naidu or Srinivasulu Naidu should be made

party to the compromise, when he claimed title and

possession to that land which was given to the decree

holders in exchange.

11

xx xx xx

90. In the case on hand the title to the application

schedule land is not in issue in the earlier suit. The issue

was with regard to the title for the suit schedule land

which was purchased by the plaintiffs from Srinivasulu

Naidu. Exs.A1 and A2 are the sale deeds which were

relied on by the plaintiffs to establish their title for 4971

sq. yards. For the remaining land there was no issue. No

finding is given with regard to the title for the remaining

land of Srinivasulu Naidu. The remaining land of

Srinivasulu Naidu’s is shown as boundary on three sides

of the suit land purchased by the plaintiffs from

Srinivasulu Naidu. A finding is given in the suit that the

land purchased by Srinivasulu Naidu under Ex.A1 and A2

is patta land of Shaik Ahmed. To decide the title of the

plaintiffs in 4971 sq. yards title of Srinivasulu Naidu

covered by Exs.A1 and A2 was also considered.

Therefore, there is identity of title in OS 175/70 and in

this land grabbing case. Hence, the finding in the suit

binds the respondents.

91.The findings in the suit binds the Union of India as

the title in the two litigations is one and the same. The

State Government did not prefer the appeal against the

Judgment and decree in OS 175/70. The Union of India

claims title through the State Government. In the suit, a

finding is given that the land is a patta land of Shaik

Ahmed and not the State Government land. Therefore,

that finding became final and binds both the

Governments and other parties to the suit. The appeal

CCCA No-30/1972 preferred by the Union of India against

the judgment and decree passed in suit OS 175/70 was

dismissed by the Hon’ble High Court. A finding was given

by the High Court that the land covered by Exs.B-38

marked in the i.e. the land covered by Ex.B25 herein was

not correlated to the suit land. The suit land is part of the

land covered by Exs.A1 and A2 sale deeds herein. The

Union of India contends that the entire land of Acs.2.20

guntas was delivered as per Ex.B38 proceedings. In the

letter dt. 25-4-1960 which was addressed by the

Tahsildar, Hyderabad to the Collector Hyderabad District

it is mentioned that the tounch map available in this

office shows that Sy.No. 299/2 is the same place where

the rifle range is shown in the map of I.S.F lands,

Mallepally. Neither the tounch map nor the map of ISF

lands has been produced. The letter therefore loses all

its importance. The letter however, shows that patta was

12

sanctioned to Shaik Ahmed prior to the preparation of

the maps.” (Emphasis supplied)

13.The High Court in a petition under Article 226 of the

Constitution affirmed the order of the Tribunal and held as

under:

“17.Originally, the land to an extent of Acs.2.27 gts in

Sy.No. 299/2 was purchased by S.V. Srinivasulu Naidu,

the father of the applicants under Exs.A1 and A2 sale

deeds. After Ac.0.07 gts of land was affected in road

widening, the remaining extent of land is Acs.2.20 gts

equivalent to 12,100 sq. yards, out of which, 4,971 sq.

yards was sold by the father of the applicants to one V.

Krishna Murthy and others under Ex.A3. Now, the

disputed land is 7,128.5 sq. yards. The possession of

land to an extent of Acs.2.20 gts by Srinivasulu Naidu

from 1959 to 1964 was established in O.S. No. 175 of

1970 wherein the dispute with regard to the land to an

extent of 4,971.5 sq. yards out of Acs.2.27 gts between

V. Krishna Murthy and others/plaintiffs with the Union of

India/respondent has been decided through the

judgment and decree dated 13.08.1970. The delivery of

the land to an extent of Acs.2.27 gts to the Union of

India by the State Government was negatived in that

suit. The possession of Srinivasulu Naidu in the land on

three sides of the decretal land is admitted by R.W.2 as

per the contents of Ex.B21. Since the said judgment and

decree in O.S. No. 175 of 1990 had attained finality in

view of the dismissal of appeal being CCCA No. 30 of

1972 filed by the Union of India, the plaintiffs have

proceeded for its execution. Therefore, the father of the

applicants had got title and possession over the part of

the land sold by him.

18.The contention of the Union of India that the entire

land to an extent of Acs.2.20 gts was delivered to the

Central Government as per Ex.B28 proceedings cannot

be accepted as the land to an extent of Acs.2.20 gts was

shown as Minature Rifle Range at Mallepally village area

as per Ex.B14 and not in Shaikpet village and as such,

the Special Court held that the land to an extent of

Acs.2.20 gts covered by Exs.A1 and A2 belongs to

Srinivasulu Naidu and they are valid documents.

13

19.When the execution proceedings are pending,

respondent No.1 claimed 1/3rd share in the entire land

covered by the decree in O.S. No.175 of 1990 as

assignee from one of the decree holders i.e., V. Krishna

Murthy under assignment deed dated 18.03.1992, which

admittedly has not been produced before the Court. To

avoid demolition of the Pension Payment Office and to

avoid the contempt proceedings, the Union of India

made exchange offer to five equal extent of vacant land

lying adjacent to the decree schedule property though it

is not its property. The Special Court observed that after

exchange, an extent of 2627.87 sq. yards covered by

decree shown as ‘B’ portion is delivered to R1 and also

observed that respondent No.1 got possession of the

land of Srinivasulu Naidu after exchange, his possession

is illegal and unlawful.”

14.The order passed by the Tribunal and that of the High Court was

based on the decree in OS No. 175/1970 though the said suit

was only in respect of 4971.5 sq. yards comprising in Survey

No. 299/2. The plaintiffs in the aforesaid suit had pleaded that

the applicants had purchased 2 acres 27 guntas of land vide

two sale deeds and that the plaintiffs are purchasers of 4971.5

sq. yards.

15.Learned counsel for the appellant argued that the subject

matter of the first suit was only 4971.5 sq. yards which was

purchased by the plaintiffs. The issue was in respect of title of

the plaintiffs over the said land alone. Though there was an

issue as to whether the land belongs to Hyderabad State Army

and that it has been handed over to the Union in 1958, but such

issue was decided against the appellants. However, the finding

on such issue would be restricted to the land which is subject

14

matter of the suit and not the entire land which was handed

over to the Union by the State of Andhra Pradesh.

16.The transfer of land by the State of Andhra Pradesh to the Union

was not required to be registered by a registered instrument in

view of Section 17(2)(vii) of the Registration Act, 1908, which

reads as under:

“17. Documents of which registration is

compulsory.

(1)The following documents shall be registered, if the

property to which they relate is situate in a district

in which, and if they have been executed on or

after the date on which, Act XVI of 1864, or the

Indian Registration Act, 1866, or the Indian

Registration Act, 1871, or the Indian Registration

Act, 1877, or this Act came or comes into force,

namely,

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which

purport or operate to create, declare, assign, limit

or extinguish, whether in present or in future, any

right, title or interest, whether vested or

contingent, of the value of one hundred rupees

and upwards, to or in immovable property;

(c) non-testamentary instruments which

acknowledge the receipt or payment of any

consideration on account of the creation,

declaration, assignment, limitation or extinction of

any such right, title or interest; and

xx xx xx

(2) Nothing in clauses (b) and (c) of sub-section (1)

applies to –

xx xx xx

(vii) any grant of immovable property by Government;”

15

17.Section 2 of the Government Grants Act, 1895 provides that the

Transfer of Property Act shall not be applicable to Government

grants. Therefore, the condition in Section 54 of the Transfer of

Property Act that immovable property of the value of one

hundred rupees and upwards can be transferred only by a

registered instrument is also not applicable to the Government

Land. Section 2 reads as under:

“2. Transfer of Property Act, 1882, not to apply to

Government grants. - Nothing in the Transfer of Property

Act, 1882, contained shall apply or be deemed ever to

have applied to any grant or other transfer of land or of

any interest therein heretofore made or hereafter to be

made by or on behalf of the Government to, or in favour

of any person whomsoever; but every such grant and

transfer shall be construed and take effect as if the said

Act had not been passed.”

18.It was argued that the land was transferred to the Union vide

letter dated 10.10.1956 when 1650 acres and 2 guntas of land

including 378 acres and 16 guntas of land of Asafnagar lines

were transferred to the Government of India. Subsequently, on

24.8.1957, land measuring 150 acres 8 guntas attached to

Chandrayangutta lines was excluded and the Collector was

requested to make early arrangements of handing over of the

land measuring 1500 acres 24 guntas to the Military Estate

Officer. In pursuance of such communication, the possession of

land measuring 1500 acres 24 guntas was handed over to the

Union of India in the proceedings dated 19.3.1958.

19. In the communication dated 10.10.1956, as mentioned above,

16

the State of Andhra Pradesh had transferred 1650 acres 2

guntas of land. However, later on 24.8.1957, the land

measuring 150 acres and 8 guntas situated in Chandrayangutta

Lines was excluded. The communication dated 10.10.1956

reads as thus:

“From:

The Chief Secretary to Government

General Administration Department

Hyderabad Deccan.

To

The Secretary to Govt. of India

Ministry of Defence,

New Delhi.

Subject:- ALLOCATION OF OLD HYDERABAD

CANTONMENT LANDS BETWEEN THE DEFENCE MINISTRY

AND THE STATE GOVERNMENT

Sir,

I am directed to refer to this Govt. Letter No. 1065 CAD

Army dated the 9

th

July, 1952 addressed to the Ministry

of States (Now Home Affairs Ministry) New Delhi (Copy

enclosed for ready reference) and to say that as stated

therein agreement was reached between the

Government of India and the Hyderabad Govt. in regard

to the allocation of the late Hyderabad Army buildings

and according to the agreement the following lines in the

Hyderabad proper have been treated as ISF lines

property of the Govt. of India.

1) Mohammadi Lines.

2) Ibrahim Bagh Lines.

3) Makai Darwaza Lines.

4) Asafnagar Lines

5) Masab Lines.

6) Chandrayangutto Lines

Similarly agreement was reached regarding the following

17

Hyderabad Army line and building in the Hyderabad

proper being treated as non-ISF lines property of the

Hyderabad Govt.

1) Fateh Darwaza Lines.

2) Mallapalli Lines.

3) A.C. Guards (Saifabad) Lines.

4) Nampally Lines.

5) Central Military Hospital Building (New Sarojini

Devi Hospital)

6) Banjara Darwaza Lines.

7) Band lines Fath Maidan.

8) Mysaram Lines.

As stated in the above cited letter the question of

allocating the Hyderabad Cantonment lands between the

two Govts has been engaging the attention of this Govt.

for some time past and in order to reach an agreement

between the Centre and the State for the allocation of

these lands this Govt. had proposed in the letter referred

to above that all lands in the vicinity of the ISF buildings

or meant for the use of occupants of ISF Buildings should

be treated as ISF or Central Govt. property and the rest

as non-ISF property falling to the share of Hyderabad

State. It was also made known to the Govt. of India, in

our above letter and DO No. 661/GAD Army 54 dated the

27

th

/28

th

Aug 54 addressed to you that this Govt. had

asked their survey to carry out the survey and the

demarcation of the ISF and non-ISF lands. That work has

since been completed.

The State Government having examined the entire

question of the demarcation of appurtenant lands

carefully suggest for the acceptance of the Govt. of India

the allocations as indicated in a set of maps (five in

number) forwarded herewith. The appurtenant lands

attached to ISF Lines are shown in green colour while the

lands appurtenant to non-ISF lines are indicated in blue

colour.

The recommendation of the State Govt. briefly envisages

the allocation of lands as under:

ISF Lines Acres Guntas

1 Mohammadi Lines 361 20

18

2 Ibrahimbagh Lines etd., 484 02

3 Makai Darwaza Lines etc., 244 08

4 Banjara Darwaza Lines 32 18

According to the agreement reached between the two

Govt. Banjara Darwaza Lines. Property of the State is

being exchanged for Masab lines. Property of the Centre

is being exchanged vide this Govt’s endorsement No.

197 GAD 21 Army 56 dated 26

th

June 56. Hence Masab

Lines are omitted here and shown under non-ISF Lines

below - Banjara Darwaza Lines are shown as ISF instead.

Acres Guntas

5 Asafnagar Lines 378 16

6 Chandrayangutta Lines 150 08

Total 1650 32

Non-ISF Lines Acres Guntas

1 Fateh Darwaza Lines,

(Dhanka Kotah and

Naurangi Maidan)

42 04

2 Malapalli Lines

3 A.C. Guards (Saifabad)

Lines

450 12

4 Nampalli Lines

5 Central Military

Hospital Building (now

Sarojini Devi Hospital)

6 Masab Lines

7 Mysaram Lines 463 10

8 Band Lines Fateh

Maidan

18 18

Total 974 4

“From the above it will be seen that 1650 acres 32

guntas will go to the Centre and 974 acres 04 guntas fall

to the share of the State.

I am to request you to kindly to communicate early

concurrence of the Govt. of India to the above allocation

of the ex Hyderabad Cantonment lands to the Centre

and the State so that the lands falling to the share of the

Govt. of India may be hand over to the local Military

authorities.

19

An early reply will be very much appreciated.

Yours faithfully

sd/-

BHARAT CHAND DHANNA

Deputy Secretary to the Govt.

10.10.1956

ISF AND NON-ISF LANDS-HYDERABAD

I.Langar HouzArea Planimeter Area

Indian Govt.1. Bit excl. Polo

Ground (after

completion of

survey from M47 to

M52 submerged

area

361 20

State Govt.III Bit of Dhanka

Lotha

20 08

State Govt.II Bit Naurangi

Maidan (after

alternation at Stn.

No.9 and excl. the

boundary South of

road as marked in

Collector’s office

Plan

21 36

II.Golconda

Area

Indian Govt.

I Ibrahimbagh

Barracks etc.

467 28

Septic Tank 9 02

Kitchen Garden 7 12

II. Makai Darwaza

Lines excl.

encroachment 2 and

4 as marked in the

plan)

139 00

III Area East of

Golconda Tombs

104 26

728 10

Indian Govt.Banzara Darwaza

Lines

30 14

Stables 2 04

32 18

IIIMallapally I Rifle Range and 372 16

20

Area Parade Ground etc.

as marked on the

plan

II Military Grave Yard3 20

III Miniature Rifle

Range

2 20

378 16

State Govt.I Whole of eastern

area as marked in

the plan excl.

Niloufer Hospital

etc. area

449 36

II Old Hospital area

near Band lines

0 16

450 12

IVChandrayang

utta area

Indian Govt.I Rifle Range 150 08

II Maisaram Lines

etc Excl. Harizans

Colony and

Sharifuddin

encroachment

445 24

III Dispute area 64

to 65

0 38

IV Grave Yard 7 11

V Barood Khana 9 17

VBand Lines

Fateh Madian

State Govt.

18 18

.Sd/-

10/10/56”

20.The ISF lines are the Indian Security Forces lines whereas the

non-ISF lines refer to the non-Indian Security Forces lines such

as that of State of Hyderabad. The Asafnagar lines measuring

378 acres and 16 guntas is a part of ISF line. In the appendix

attached to the said communication, the Asafnagar lines are

21

shown as Mallapally area measuring 378 acres and 16 guntas.

The land described as Miniature Rifle Range measuring 2 acres

20 guntas is the subject matter of the land in the present

appeals. Mallapalli lines are mentioned as non-ISF lines but

measures about 450 acres and 12 guntas. Thus, it is argued

that in the appendix, Mallapally area is distinct from Mallapalli

lines. The Mallapally area is either synonymous with Asafnagar

lines or on account of mistake but has equivalent

measurements with Asafnagar lines.

21.The proceedings of the Board of the Appellant with the Collector

of Hyderabad in respect of delivery of possession of 1500 acres

and 24 guntas as recorded in the letter dated 19.3.1958 (Ex B-

14) read as thus:

“PROCEEDINGS of a Board of officers

assembled at the OFFICE OF THE

GARRISON

ENGINEER,

SECUNDERABAD

On the 19

th

March 1958 at 1000 hours.

by order of STATION HEADQUARTERS

LETTER NO. 17729

DATED 15

TH

Jan, 1958

for the purpose of TAKING OVER OF EX-

STATE FORCES LANDS IN

HYDERABAD ACCRUING

TO THE SHARE OF THE

ARMY

PRESIDING OFFICER

Brigadier G.S. BAL - Station Commander

MEMBERS

1. Major W.S. Rasalam - DAA & QMG HQ

22

SECUNDERABAD Station

2. Shri H.S. GUNDAPPA Rep. M.E.S. Garrison

Engineer

3. Shri D.D. ANAND Rep. ML & C MEO

SECUNDERABAD

4. SHRI RAMASWAMY NAIDU Rep. of the Collector of

HYDERABAD

The Board having assembled pursuant to order,

proceeded to ascertain from the Land Records, the

details of the Property to be taken over and its location

and boundary. The Collector’s Representative Mr.

Ramaswamy Naidu furnished the followed information

regarding this from the Land Records, though the extent

of the land to be taken over by the Central Government

is not finalized.

(a)According to the Government of India letter No.

70732/Q3(Plg)VOL-II/18-S/Q/D(QTD) & LHD

dated 11

th

March 1957 to the Secretary to the

Government of Andhra Pradesh General

Administration (Military Department)

Hyderabad, 1650 acres and 32 guntas of lands

appurtenant to Asaf Nagar Lines, Mohammadi

Lines, Ibrahim Bagh Lines, Makkai Darwaza

Lines, Banzara Darwaza Lines as per Annexure

“A” are to be taken over by the Army

authorities. The details of the above area is

contained in the enclosures to the State

Government letter No. 392 GAD 23

rd

Army 56

dated 10

th

Oct 56 which is enclosed as

Annexure “B”.

(b) Subsequently vide GAD Memorandum

No.2733/57-2 dated 24

th

Aug 57 addressed to

the Collector and copies to the Military Estates

Officer, Administrative Commandant, Station

Headquarters, Secunderabad and the Board of

Revenue appended as Annexure “C” an extent

of lands measuring 150 acres and 8 guntas

appurtenant to Chandrayan Gutta Lines should

be deducted from 1650 acres 32 guntas and

the rest of the land i.e. 1500 acres and 24

guntas alone are to be handed over to the

Military authorities. This is to be confirmed by

Army Headquarters. In pursuance of this, the

following areas are to be taken over by the

military authorities:-

23

AcresGuntas

1)Mohamadi Lines

measuring 361 20

2)Ibhahimbagh Lines

measuring 484 2

3)Makkai Darwaza Lines

measuring 244 8

4)Banjara Darwaza Lines

measuring 32 18

5)Asafnagar Lines

measuring 378 16

Total 1500 24

2. The Plans for the above are enclosed as Annexure

“D”, “E”, “F”. The areas have been traversed by

the State Settlement Department and stone pillars

have also been fixed on the ground. Those have

been physically verified by the Board at the sites.

At present the boundary stones are marked with

tar temporarily. Those are to be permanently

engraved.

3. The Board observed during its physical

verifications on the ground that there are several

encroachments in all the Lines, which are taken

over. These encroachments are as furnished by

the Collector ‘Land’ Acquisition Hyderabad in his

letter No. RC-CIO/1522/Hyd/58 dated 9

th

May, 58.

Vide annexure. The Board observed that the

encroachments are in the nature of both built up

areas (permanent and temporary) and cultivated

areas. The board was informed by the Collector’s

Representative that some areas of land falling

within the boundary limits of the lands being taken

over by the Army authorities have been leased out

by the Civil authorities for agriculture, grazing and

other commercial purposes. A list of such leases

with details and terms of those leases, as

furnished by the Collector’s Representative is

attached as Annexure “H”.

4. Though the buildings in Banjara Darwaza Lines,

have not yet been handed over by the State P.W.D,

being still in occupation by the H.S.R.P. units, the

24

lands appurtenant thereto, as per the above

schedule is taken over.

5. During the physical verification and taking over of

lands at site, the Board observed the following:-

(a)Asafnagar Lines

i)The demarcation line between Sarojini

Devi Hospital and Asafnagar Line requires

to be re-marked by fixing additional

boundary stones from boundary pillars

No.46 to 113 by the State authorities.

Action is in hand.

ii)The State’s Government representative

Shri. Ramaswamy Naidu stated that an

enclave between pillars 76 to 100

including Asafnagar pumping station

and building known as Hussain Gulshan

and adjoining cultivated area,

comprising of a total acreage of 44 is

not now to be handed over and

incorrectly computed in the area of 378

acres and 16 guntas, mentioned at item

(b) of para 1 above, as this comprises of

State Government property (Asafnagar

Water Works) and private property.

(b)xxx xxx

(c)

(d)

(e)Ibrahimbagh Lines

The boundary pillars exist as per the plan.

6. Regarding the recommendation of the areas for

the active use of the Army (units in occupation),

their future use and surplus land is being

ascertained from the user units with a view to

determine the surpluses for handing over to the

Military Estates Officer.

Presiding Officer -Sd/-

Members 1. Sd/-

2. Sd/-

3. Sd/-

4. Sd/-

22.It is further argued that such land is recorded in possession of

25

the appellant in the military land register and general land

register which are public documents within the meaning of

Section 74 of the Evidence Act, 1872. Still further, the Court

may presume the existence of any fact which it thinks is likely

to have happened, regard being given to the common course of

natural events, human conduct and public and private business,

in their relation to the facts of the particular case such as (e)

that the judicial and official acts have been regularly performed

and (f) that the common course of business has been followed

in particular cases. Thus, the documents maintained in the

course of official duty would carry the presumption of

correctness on the basis of which the Union cannot be said to

be land grabber, which has entitled the applicants to invoke the

jurisdiction of the Tribunal. The Union has unequivocal title over

the land in question. Though, in the first suit, the Union was

unsuccessful but the findings in the said suit would be restricted

to land which is subject matter of the said suit and not to the

entire land.

23.On the other hand, Mr. Rao argued that the land in question is

Sarf-e-Khas land i.e. crown land of the State of Hyderabad

belonging to Nizam family. Shaik Ahmed, the seller of the land

to the predecessor of the applicants was the holder of Patta

under the Nizam. Such Patta is a document of title and

therefore, a valid title was passed on to the predecessor of the

applicants vide registered sale deed dated 12.12.1959. It was

26

also argued that the decree in the first suit is in respect of entire

property purchased by predecessor of the applicants, though

the claim of plaintiffs was restricted to the land purchased by

him. Therefore, such decree would operate as res judicata.

Reliance was placed upon a judgment reported as K. Ethirajan

(Dead) by LRs. v. Lakshmi & Ors.

5

wherein it has been held

that where the issues directly and substantially involved

between the same parties in the previous and subsequent suit

are same, though in the previous suit, only part of the property

was involved while in the subsequent suit, the whole of the

property was the subject matter, the principle of res judicata

would be applicable. It was also argued that the act of any

person of land grabbing falls within the scope of the Act and the

appellants are also persons within the meaning of Section 2(g)

of the Act. Therefore, the proceedings initiated before the

Tribunal were valid and have been rightly decided.

24.We have heard learned counsel for the parties. The following

questions are required to be decided in the present appeals.

(i) whether the order passed in the first suit filed by the

plaintiffs as affirmed by the High Court operates as

res judicata?

(ii) whether the appellants have proved their title over

the land in question?

(iii) whether the appellant is a land grabber within the

meaning of Section 2(d) of the Act?

5 (2003) 10 SCC 578

27

25.The applicants have claimed possession from the appellants

primarily on the ground that in the suit filed by the plaintiffs on

14.4.1965, the basis of the suit was purchase of land by the

plaintiffs from the father of the applicants. Since the plaintiffs

have been found to be the owners on the basis of purchase of

land from the father of the applicants, therefore, the issue of

title decided in the said suit would operate as res judicata.

Therefore, the appellants herein are land grabbers having no

title over the land in question. It may be reiterated that the

plaintiffs had purchased land measuring 4971.5 sq. yards from

the father of the applicants whereas the remaining land

measuring 7128.5 sq. yards was retained by the applicants.

Therefore, the decree in the first suit was only in respect of the

schedule property in the first suit i.e. 4971.5 sq. yards. The

patta, the basis of title of the applicants had not been produced

in evidence before the Tribunal. Thus, the basic document of

title had not been produced.

26.In the first suit, the father of the applicants had not filed any

counter claim to assert title or possession over the land in

question. The land admeasuring 4971.5 sq. yards was a

schedule property and the subject matter of the first suit. The

issue no. 1 in the first suit was in respect of the possession of

the plaintiffs and their predecessor-in-interest over the ‘suit

land’ within 12 years prior to the suit. Therefore, the rights of

the plaintiffs were examined in respect of such suit land

28

measuring 4971.5 sq. yards alone, although, to return the

finding on possession and title, possession of the father of the

applicants over the land purchased by the Plaintiff was clubbed

together on the basis of patta claimed to be granted to Shaik

Ahmed, though not produced or proved on record.

27.In the second suit filed by the applicants, the entire basis of suit

was the findings returned in the first suit. There is no

independent evidence produced in respect of purchase of land

by Shaik Ahmed and the legality or validity of Patta issued to

him. Although, applicants have asserted that they have been

visiting the land in question to verify their possession but apart

from such plea, there is no evidence that there was any covert

and overt act on the part of the plaintiffs to assert possession

over the land in question.

28. In fact, the appellants had entered into a settlement with the

plaintiffs by which some of the land in possession was given to

the decree holder in execution with the leave of the Court on

19.8.1995. Such action would show the assertion of title by the

appellants so as to enter into exchange of land in satisfaction of

the decree. The father of the applicants was party in the

execution proceedings but has not objected to the exchange. It

necessarily leads to an inference that the father of the

applicants was not in possession and has not asserted the title

or possession over the remaining land measuring 7128.5 sq.

yards. On the other hand, the appellants have categorically

29

asserted that they are in possession of the land from the date of

transfer in the year 1958 when the Collector of Hyderabad

handed over the possession to them. The appellants continued

to be in unhanded possession over the last 30 years.

29.To examine the arguments that the decree in the previous suit

would operate as res judicata, Section 11 CPC may be extracted:

“11. Res Judicata. – No Court shall try any suit or issue in

which the matter directly and substantially in issue has

been directly and substantially in issue in a former suit

between the same parties, or between parties under

whom they or any of them claim, litigating under the

same title, in a Court competent to try such subsequent

suit or the suit in which such issue has been subsequently

raised, and has been heard and finally decided by such

Court.

Explanation I.—The expression “former suit” shall denote

a suit which has been decided prior to the suit in question

whether or not it was instituted prior thereto.

Explanation II.—For the purposes of this section, the

competence of a Court shall be determined irrespective of

any provisions as to a right of appeal from the decision of

such Court.

Explanation III.—The matter above referred to must in the

former suit have been alleged by one party and either

denied or admitted, expressly or impliedly, by the other.

Explanation IV.—Any matter which might and ought to

have been made 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.”

30.The plea of res judicata is generally raised against the plaintiffs

who would be the applicants before the Tribunal. This Court in a

judgment reported as Alka Gupta v. Narender Kumar Gupta

6

held that the plea of res judicata is a restraint on the right of a

plaintiff to have an adjudication of his claim. This Court has

culled down the essential requirements to be fulfilled to apply

the bar of res judicata to any suit or issue. It has been observed

6 (2010) 10 SCC 141

30

as under:

“20. Plea of res judicata is a restraint on the right of a

plaintiff to have an adjudication of his claim. The plea

must be clearly established, more particularly where the

bar sought is on the basis of constructive res judicata. The

plaintiff who is sought to be prevented by the bar of

constructive res judicata should have notice about the

plea and have an opportunity to put forth his contentions

against the same. In this case, there was no plea of

constructive res judicata, nor had the appellant-plaintiff an

opportunity to meet the case based on such plea.

21. Res judicata means “a thing adjudicated”, that is, an

issue that is finally settled by judicial decision. The Code

deals with res judicata in Section 11, relevant portion of

which is extracted below (excluding Explanations I to VIII):

“11. Res judicata.— xxxx xxxx

22. Section 11 of the Code, on an analysis requires the

following essential requirements to be fulfilled, to apply

the bar of res judicata to any suit or issue:

(i) The matter must be directly and substantially in issue

in the former suit and in the later suit.

(ii) The prior suit should be between the same parties or

persons claiming under them.

(iii) Parties should have litigated under the same title in

the earlier suit.

(iv) The matter in issue in the subsequent suit must have

been heard and finally decided in the first suit.

(v) The court trying the former suit must have been

competent to try the particular issue in question.”

31.The rule of res judicata is founded on considerations of public

policy that the finality should be attached to the binding

decisions pronounced by the Courts of competent jurisdiction.

This Court in Daryao & Ors. v. State of U.P. & Ors.

7

held as

under:

“9. …Now, the rule of res judicata as indicated in Section

11 of the Code of Civil Procedure has no doubt some

technical aspects, for instance the rule of constructive res

judicata may be said to be technical; but the basis on

which the said rule rests is founded on considerations of

public policy. It is in the interest of the public at large that

a finality should attach to the binding decisions

pronounced by Courts of competent jurisdiction, and it is

7 AIR 1961 SC 1457

31

also in the public interest that individuals should not be

vexed twice over with the same kind of litigation. If these

two principles form the foundation of the general rule of

res judicata they cannot be treated as irrelevant or

inadmissible even in dealing with fundamental rights in

petitions filed under Article 32.”

32.In a judgment reported as State of Karnataka & Anr. v. All

India Manufacturers Organisation & Ors.

8

, this Court has

considered Explanations III & IV of Section 11 CPC. It was held

as under:

“32. Res judicata is a doctrine based on the larger public

interest and is founded on two grounds: one being the

maxim nemo debet bis vexari pro una et eadem causa (no

one ought to be twice vexed for one and the same cause [

P. Ramanatha Aiyer: Advanced Law Lexicon, (Vol. 3, 3rd

Edn., 2005) at p. 3170] ) and second, public policy that

there ought to be an end to the same litigation

[ Mulla: Code of Civil Procedure, (Vol. 1, 15th Edn., 1995)

at p. 94] . It is well settled that Section 11 of the Civil

Procedure Code, 1908 (hereinafter “CPC”) is not the

foundation of the principle of res judicata, but merely

statutory recognition thereof and hence, the section is not

to be considered exhaustive of the general principle of law

[See Kalipada De v. Dwijapada Das, (1929-1930) 57 IA 24 :

AIR 1930 PC 22 at p. 23] . The main purpose of the

doctrine is that once a matter has been determined in a

former proceeding, it should not be open to parties to

reagitate the matter again and again. Section 11 CPC

recognises this principle and forbids a court from trying

any suit or issue, which is res judicata, recognising both

“cause of action estoppel” and “issue estoppel”. There are

two issues that we need to consider, one, whether the

doctrine of res judicata, as a matter of principle, can be

applied to public interest litigations and second, whether

the issues and findings in Somashekar Reddy [(1999) 1

KLD 500 : (2000) 1 Kant LJ 224 (DB)] constitute res

judicata for the present litigation.

xx xx xx

36. We will presently consider whether the issues and

findings in Somashekar Reddy [(1999) 1 KLD 500 : (2000)

1 Kant LJ 224 (DB)] actually constitute res judicata for the

present litigation. Section 11 CPC undoubtedly provides

8 (2006) 4 SCC 683

32

that only those matters that were “directly and

substantially in issue” in the previous proceeding will

constitute res judicata in the subsequent proceeding.

Explanation III to Section 11 provides that for an issue to

be res judicata it should have been raised by one party

and expressly denied by the other:

xx xx xx

41. With these legal principles in mind, the question,

therefore, arises as to what exactly was sought

in Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ

224 (DB)] , how it was decided by the High Court in the

first round of litigation, and what has been sought in the

present litigation arising at the instance of Mr J.C.

Madhuswamy and others. In order to show that the issue

of excess land was “directly and substantially in issue”

in Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ

224 (DB)] we will first examine the prayers of the parties,

the cause of action, the averments of parties and the

findings of the High Court in Somashekar Reddy [(1999) 1

KLD 500 : (2000) 1 Kant LJ 224 (DB)] .”

33.The issue can be examined from another angle as to whether

the plea of res judicata can be raised by the applicants against

their co-defendant in the first suit. In the first suit, the defendant

had the opportunity to raise a claim in respect of land

measuring 7128.5 sq. yards. However, no such claim was raised.

In view of Section 11, Explanation IV CPC, the applicants might

and ought to have made grounds of defence in the former suit

to claim possession of the land measuring 7128.5 sq. yards.

The consequence would be that failure to raise such defence or

counter claim would be deemed to be constructive res judicata

in terms of Explanation IV of Section 11 CPC. Reference may be

made to judgment of this Court reported as Ramadhar Shrivas

33

v. Bhagwandas

9

. This court was examining a situation where in

a suit for possession, the defendant Bhagwandas was found to

be the tenant of the original owner Hiralal and after a

subsequent purchase, he had become tenant of Ramadhar. The

first suit was dismissed on the ground that suit for possession

was not maintainable against Bhagwandas being tenant. In

another suit filed by the purchaser, the defendant denied the

title of plaintiff, though such was not the plea in the first suit. In

these circumstances, the Court held as under:

“23.In the case on hand, it is clear that in the earlier

suit, the court had recorded a clear finding that the

defendant Bhagwandas was neither the owner of the

property nor could he show any right as to how he was

occupying such property except as a tenant of Hiralal. If

Bhagwandas was claiming to be in lawful possession in

any capacity other than a tenant, he ought to have put

forward such claim as a ground of defence in those

proceedings. He ought to have put forward such claim

under Explanation IV to Section 11 of the Code but he

had failed to do so. The doctrine of constructive res

judicata engrafted in Explanation IV to Section 11 of the

Code thus applies to the facts of the case and the

defendant in the present suit cannot take a contention

which ought to have been taken by him in the previous

suit and was not taken by him. Explanation IV to

Section 11 of the Code is clearly attracted and the

defendant Bhagwandas can be prevented from taking

such contention in the present proceedings.”

34.The issue as to whether there can be res judicata between co-

defendants was first examined by the Privy Council in a

judgment reported as Munni Bibi (since deceased) & Anr. v.

Tirloki Nath & Ors.

10

. The three principles of res judicata as

between co-defendants were delineated as: (1) There must be a

9 (2005) 13 SCC 1

10 AIR 1931 PC 114

34

conflict of interest between the defendants; (2) it must be

necessary to decide this conflict in order to give the plaintiff the

relief he claims; (3) the question between the defendants must

have been finally decided. This test too is not satisfied as in

order to grant relief of possession to the plaintiffs in the first suit,

it was not necessary to decide the issue of the remaining land

between the father of the applicants and the appellants. The

said principle was reiterated by this Court in a judgment

reported as Mahboob Sahab v. Syed Ismail and Others

11

wherein it has been held as under:

“8. Under these circumstances the question emerges

whether the High Court was right in reversing the

appellate decree on the doctrine of res judicata. At this

juncture it may be relevant to mention that the trial

court negatived the plea of res judicata as a preliminary

issue. Though it was open to sustain the trial court

decree on the basis of the doctrine of res judicata, it was

not argued before the appellate court on its basis.

Thereby the findings of the trial court that the decree in

OS No. 3/1/1951 does not operate as res judicata

became final. The question then is whether the doctrine

of res judicata stands attracted to the facts in this case.

It is true that under Section 11 CPC when the matter has

been directly or substantially in issue in a former suit

between the same parties or between parties under

whom they or any of them claimed, litigating under the

same title, the decree in the former suit would be res

judicata between the plaintiff and the defendant or as

between the co-plaintiffs or co-defendants…”

35.In a recent judgment reported as Govindammal (Dead) by

LRs & Ors. v. Vaidiyanathan & Ors.

12

, the applicability of res

judicata between co-defendants was examined. The applicants

were the defendants in the first suit and so were the appellants.

11 (1995) 3 SCC 693

12 (2019) 17 SCC 433

35

In the aforesaid case, the suit was filed by the respondents

claiming title over A Schedule property or in the alternative for

partition of half share in B Schedule property. The Court

considered the principle of res judicata within the co-defendants

in para 14 which reads as under:

“14. However, there exist certain situations in which

the principles of res judicata may apply as between co-

defendants. This has been recognised by the English

courts as well as our courts for more than a century.

The requisite conditions to apply the principle of res

judicata as between co-defendants are that (a) there

must be conflict of interest between the defendants

concerned, (b) it must be necessary to decide this

conflict in order to give the plaintiff the relief he claims,

and (c) the question between the defendants must have

been finally decided. All the three requisite conditions

are absent in the matter on hand. Firstly, there was no

conflict of interest between the defendants in the suits

filed by the temple and the school. Secondly, since

there was no conflict, it was not necessary to decide

any conflict between the defendants in those suits in

order to give relief to the temple or the school, which

were the plaintiffs. On the other hand, the father of the

plaintiffs and the father of the defendant were colluding

in those suits filed by temple and school. Both of them

unitedly opposed those suits. In view of the same, the

principles of res judicata would not apply.”

36.The applicants have not claimed any title to the land which is

claimed to be in their possession and the subject matter of the

first suit was only 4971.5 sq. yards. Hence, the decree in the

said suit is binding qua the land in suit only.

37.Though the first suit is between the same parties, but the

subject matter is not the same. For res judicata to apply, the

matter in the former suit must have been alleged by one party

and either denied or admitted, expressly or impliedly by the

other. Since the issue in the suit was restricted to 4971.5 sq.

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yards, the decree would be binding qua to that extent only. The

issue cannot be said to be barred by constructive res judicata as

per Explanation IV as it applies to the plaintiff in a later suit.

The appellants have denied the claim of the plaintiffs in the first

suit to the extent that it was the subject matter of that suit

alone. Therefore, the decree in the first suit will not operate as

res judicata in the subsequent matters.

38.The reliance of Mr. Rao on the judgment of this Court in K.

Ethirajan is not tenable. In fact, such judgment has been made

the basis of the impugned orders as well. The reliance is on

para 20 of the judgment, which reads as under:

“20. The argument that principle of res judicata cannot

apply because in the previous suit only a part of the

property was involved when in the subsequent suit the

whole property is the subject-matter cannot be

accepted. The principle of res judicata under Section

11 of the Civil Procedure Code is attracted where

issues directly and substantially involved between the

same parties in the previous and subsequent suit are

the same - may be - in the previous suit only a part of

the property was involved when in the subsequent

suit, the whole property is the subject-matter.”

39.The said paragraph cannot be read in isolation. The facts on the

basis of which judgment is given are required to be kept in view

to have an understanding of the background in which such

observation has been recorded. One line or paragraph cannot

be picked up without going through the facts and the nature of

suit. In the first suit, deceased- M. Gurunathan sought eviction

of deceased-K. Ethirajan, (plaintiff in the second suit), from a

portion of the suit property by claiming exclusive title. The trial

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court in the said suit held that the deceased-K. Ethirajan cannot

be held to be in possession of the suit property as a mere

licensee of the deceased-M. Gurunathan. He was held to be in

possession of the suit property as owner since 1940 as

evidenced by various documents of possession filed by him and

the joint patta granted by the authorities under the Act of 1948.

The trial court also held that deceased-K. Ethirajan having

remained in continuous possession of the suit property as

owner had perfected his title by remaining in adverse

possession for more than the statutory period of 12 years.

40.K. Ethirajan (plaintiff in the second suit), claimed partition of the

land based on joint patta granted to the Plaintiff and the

deceased-defendant M. Gurunathan. It is on the basis of this

joint patta, the suit for partition filed by the plaintiff was

decreed by the trial court as well as by the First Appellate Court.

This Court found that the issue directly and substantially

involved in the first suit was to claim exclusive ownership of

deceased-M. Gurunathan to the whole property left behind by

deceased-Gangammal, although eviction was sought of the

defendant from a particular portion of the land on which he had

built a hut for residence. The claim of ownership over the entire

property was specially raised in the first suit. The findings in

para 20 were returned in these circumstances. It was thus in

this background, this Court held that the principle of res

judicata would apply as in the previous suit, the assertion was in

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respect of whole property but possession was sought from a

smaller area. The judgment is clearly not applicable in the

present case as the title over the land in question before the

Tribunal is distinct from the land which was the subject matter

in the first suit. The first suit was only in respect of the land

purchased by the Plaintiff and not the entire land, though his

claim was based on sale by the father of the applicants.

41.Now, the second question as to whether the appellants have

proved their title over the land in question is examined. The

appellants claim title over the land in question. Since the land

is transferred from the State, document of title is not required

to be registered in terms of Section 17 of the Registration Act,

1908 and/or in terms of Government Grants Act, 1895. The

area of Asafnagar lines is 378 acres 16 guntas. In the appendix

to the letter dated 10.10.1956, the details of the land

comprising in the area measuring 378 acres 16 guntas is

mentioned, which includes 2 acres 20 guntas of Miniature Rifle

Range. Such land is reflected as in a Mallapally Area. The total

area of Mallapally area and Asafnagar Lines is 378 acres and 16

guntas. The Mallapalli Lines is non-ISF Lines measuring 450

acres and 12 guntas which is distinct from Asafnagar Lines

falling in ISF area measuring 378 acres and 16 guntas. Thus,

Mallapally area and Mallapalli Lines are two different parcels of

the land. The land in question herein is part of Asafnagar Lines

39

handed over to the appellants as ISF Lines. The letter dated

19.3.1958 completes the transfer when the possession of land

measuring 1500 acres and 24 guntas was handed over to the

Union.

42.The appellants claim to be in possession over the land

measuring 1500 acres and 24 guntas from the year 1958.

Although, the appellants have lost claim in respect of land

measuring 4971.5 sq. yards which is falling as part of 2 acres

and 20 guntas of land, but that would not lead to losing of the

title of the appellants over the entire land measuring 2 acres

and 20 guntas.

43.Therefore, by virtue of the provisions of Government Grants Act,

1895 read with Section 17(2)(vii) of the Registration Act, 1908,

transfer of land to the appellant is complete. The appellant is

the owner of the aforesaid land. The applicants have not

produced any document regarding the patta in favour of Shaik

Ahmed. They have not proved the title of their vendor so as to

claim a rightful title over the land in question. Further, no patta

could be granted to the applicants as the land was transferred

by the State in their favour on 19.3.1958 and possession was

claimed on the strength of sale deeds executed on 12.12.1959.

44.Apart from the fact that the transfer of title in favour of the

Union is complete when the possession was delivered, but even

thereafter, the military land register and general land register

produced by the appellants show the possession of the

40

appellants over such land. The military land register and

general land register are public documents within the meaning

of Section 74 of the Indian Evidence Act, 1872 (Evidence Act)

containing the records of the acts of the sovereign authority i.e.,

the Union as well as official body. Still further, Section 114 of

the Evidence Act grants presumption of correctness being an

official act having been regularly performed. Therefore, in the

absence of any evidence to show that such records were not

maintained properly, the official record containing entries of

ownership and possession would carry the presumption of

correctness. In view of the transfer of land on 10.10.1956

followed by delivery of possession on 19.3.1958 and continuous

assertion of possession thereof, it leads to the unequivocal

finding that appellants are owners and in possession of the suit

land.

45.The third question is to examine whether the appellants are land

grabbers and the Tribunal has jurisdiction to entertain a petition

under the Act. The objection of the appellants that they are not

land grabbers and that the State Legislature will have no

jurisdiction over the property of the Union need not to be

examined in view of the finding that the appellants are in fact

owners of the land in question.

46.Thus, Civil Appeal No. 2049 of 2013 is allowed and the

application filed by the applicants before the Tribunal is hereby

dismissed. In view thereof, Civil Appeal No. 13 of 2012 is

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rendered infructuous and accordingly dismissed.

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

(SANJAY KISHAN KAUL)

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

(HEMANT GUPTA)

NEW DELHI;

AUGUST 27, 2021.

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