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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  6th 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:

3.1 One 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.   

3.2 After  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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3.3 Between  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.

3.4 One  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.  

3.5 Being  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 4th 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.