REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 18783-18784 OF 2017 (ARISING OUT OF SLP (C) Nos.1401-1402/2015)

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

VERSUS

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

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) These  appeals  are  filed  against  the  final

judgment  and  order  dated  17.09.2014  passed  by

the High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh

in Writ Petition No. 15055 of 2004 and Writ Petition

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No.  27567  of  2008  whereby  the  Division  Bench

allowed Writ Petition No.15055 of 2004 by reversing

the judgment dated 16.06.2004 of the Special Court

in LGC No.41 of 1998 and dismissed Writ Petition

No. 27567 of 2008 while confirming the judgment

dated 23.10.2008 of the Special Court in LGC No.50

of 2004.  

3) In order  to  appreciate  the issues involved in

these two appeals, few relevant facts need mention.

4) The  dispute  in  these  appeals  relate  to  land

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

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

Hyderabad  (hereinafter  referred  to  as  the  "suit

land”).

5) The  questions,  which  broadly  fall  for

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

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

basis and of which portion and for how much area;

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

and of  how much area and of  which portion and

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since when and whether their possession has been

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

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

encroached  upon  any  parcel  of  suit  land  to  the

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

extent, they encroached and since when ?

6) These questions have to be decided in the light

of  the  relevant  provisions  of  The Andhra  Pradesh

Land  Grabbing  (Prohibition)  Act,  1982(hereinafter

referred to as “the Act”).

7) Two  cases  were  filed  by  the  respondents

through  power  of  attorney  holder  against  the

appellant  herein  before  the  Special  Court  under

Section 8 of the Act for claiming possession of the

portion of the suit land.

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

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

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

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

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

41/1998.

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

filed  against  Kazimmunisa  (since  dead  and  now

represented  by  her  legal  representative-appellant

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

Ranga Reddy District  as non applicant No.  2 and

the Special Officer,Urban Land Ceiling, Hyderabad

as non applicant No. 3.

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

was filed only against Kazimmunisa and her family

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

her legal representative).  

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

Collector,   Ranga Reddy Dist.  and Special Officer,

Urban Land Ceiling, Hyderabad were not impleaded

as  non-applicants  though  both  these  State

authorities were impleaded in LGC No. 41/1998 as

non-applicant Nos. 2 and 3.  

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

application was founded on the allegations that the

respondents are  the owners of  the suit  land.  The

respondents, in support of their claim of ownership

over the suit  land traced their  title  through some

documents  of  title  of  their  predecessor-in-title,

entries  in  the  revenue  records  and  other

documentary  evidence  and  on  the  basis  of  these

documents, alleged that their title over the suit land

including  portion  of  the  suit  land  is  prima  facie

established as against the appellant.

13) The respondents then alleged that the original

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

illegally and without any lawful title and authority

has encroached upon a portion of the suit land of

which the respondents are the owners and hence

under  the  provisions  of  the  Act,  the  respondents

have  become  entitled  to  claim  possession  of  the

illegally encroached portion of the suit land from the

appellant which essentially belonged to them.

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

respondents’  case and contended that,  firstly,  the

respondents are not the owners of the portion of the

suit  land;  Secondly  and  on  the  other  hand,  the

appellant is the lawful owner of portion of the suit

land;  Thirdly,  the  appellant  has  been  in  lawful

possession of  the said portion of the suit land as

owner  thereof;  Fourthly,  the  appellant  has  not

encroached  upon any  portion  of  the  suit  land as

alleged  by  the  respondents.  The

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

case, also filed documents of title, revenue entries

and other documents.

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

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

statement(counter affidavit)  on behalf of the State.

He also denied the respondents’ claim including the

respondents’ title over the suit land. He found fault

in the title traced by the respondents’ over the suit

land and contended that the respondents have not

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been able to establish their prima facie title over the

suit  land.  He  then  alleged  that  the  Government

record does not support the respondents’ case and

nor  the  facts  stated  in  the  application  by  the

respondents  tracing  their  title  tally  with  the

Government's record.

16) Parties  then  adduced  evidence.  The  Special

Court,  by  order  16.06.2004,  dismissed  the

respondents’  application finding no merit therein.  

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

was in relation to another portion of the same suit

land. This application was also based on somewhat

identical averments on which LGC No. 41/1998 was

founded for claiming relief therein. The respondents,

as  mentioned  above  in  LGC  50/2004,  impleaded

only  the  original  appellant  as  non-applicant  No.1

but neither  impleaded the District Collector nor the

Special  Officer  Urban Land Ceiling,  Hyderabad as

non-applicant along with the appellant.  

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18) The  original  appellant  herein  filed  written

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

respondents’  claim.  She  took  the  same  defense,

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

her ownership over the portion of the suit land. She

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

Civil Procedure 1908 (hereinafter referred to as “the

Code”) and also raised the plea of limitation.

19) By order dated 23.10.2008, the Special Court

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

that  the  applicants(respondents  herein)  are  prima

facie the  owners  of  the  portion  of  the  suit  land,

which has been in possession of  the appellant.  It

was  held  that  the  original  appellant  herein  was

neither able to rebut the case of respondents as per

Section 10 of the Act by proving their  prima facie

legal  title  over  the  suit  land nor  legal  possession

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

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

her  possession  under  the  Act  and,  hence,  she  is

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liable to restore the portion of the suit land which is

held  to  be  in  her  illegal  possession  to  the

applicants(respondents herein).

20) The appellant, felt aggrieved of the judgment of

the Special Court dated 23.10.2008 passed in LGC

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

the Constitution of India whereas the respondents

felt aggrieved of the order dated 16.04.2004 passed

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

High Court.  

21) The  High  Court  clubbed  both  the  writ

petitions. By common impugned judgment, the High

Court  allowed  the  writ  petition  filed  by  the

respondents,  set  aside  the  judgment  dated

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

consequence,  allowed  their  application  and,  in

consequence, dismissed the writ petition filed by the

appellant  against  the  judgment  dated  23.10.2008

passed  in  LGC  No.  50/2004  and  affirmed  the

judgment of Special Court dated 23.10.2008.

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22) The  effect  of  the  impugned  judgment  of  the

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

50/2004  filed  by  the  respondents  against  the

appellant stand decreed in relation to the respective

suit land involved in both the applications and the

original  appellant  herein  has  to  restore  the

possession of the portion of the suit lands which is

in her possession to the respondents.  

23) Felt  aggrieved,  the  original  appellant  has

challenged the impugned common judgment of the

High Court by way of appeal by special leave before

this Court.    

24) Heard  Mr.  Huzefa  Ahmadi,  learned  senior

counsel  for  the appellant and Mr.  Basava Prabhu

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

and 8, Mr. Shanti Bhushan, learned senior counsel

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

learned counsel for respondent Nos.4 & 5.

25) Having  heard  the  learned  senior  counsel  for

the parties at length and on perusal of their written

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submissions  and  the  record  of  the  case,  we  are

inclined  to  allow  the  appeals  in  part  and  while

setting aside of the impugned judgment of the High

Court  and  also  of  the  Special  Court  in  both  the

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

both the LGCs to Special Court for their  disposal

afresh  on  merits  in  accordance  with  law  as

indicated below.

26) In our considered opinion, the need to remand

the aforementioned two LGCs to the Special Court is

considered necessary due to the following reasons.

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

before  the  Special  Court  was  not  satisfactory

inasmuch as when admittedly two LGCs (41/1994

and 50/2004) arising between the same parties and

in relation to the same piece of suit land were filed

for grant of identical reliefs under the Act then, in

our view, both the cases should have been clubbed

together for their disposal on merits in accordance

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with law to avoid any conflicting decision in both

the cases.  

28) It  was  more  so  when  both  the  cases  were

capable  of  being  clubbed  together  because  both

were  pending  though  filed  one  after  the  other,

neither the parties nor the Courts below took note of

this with the result,  the same resulted in passing

two conflicting  orders  -  one  was  decreed and the

other suffered dismissal. This recourse adopted by

the Court below caused prejudice to the parties and,

especially, to the party who lost the case.

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

case where the provisions of Order II Rule 3 of  the

Code, which deals with joinder of causes of action,

could have been resorted to by the Court  suo moto

for clubbing the two cases as the facts involved in

both the cases satisfied the attributes of  Order II

Rule 3  of the Code.  

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

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

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and  the  Special  Officer,  Urban  Land  Ceiling,

Hyderabad  were  rightly  made  parties

-non-applicants  by  the  respondents  whereas  in

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

subsequently,  both the State  authorities  were not

made  parties  for  the  reasons  best  known  to  the

respondents.

31) In  our  opinion,  these  two  State  authorities

should also have been arrayed as non-applicants in

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

earlier one to maintain parity in both the cases. The

parties  so  also  the  Courts  below  overlooked  this

aspect  though material  for  the  proper  disposal  of

both the cases.

32) Third,  we  find  that  though  the  District

Collector filed his counter affidavit in first case (LGC

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

respondents’  title  but  also  pointed  out  as  to  who

was the original owner of the suit land but neither

the respondents countered these averments nor the

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District Collector adduced any evidence to prove the

averments.  

33) Similarly,  no  counter  affidavit  was  filed  in

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

because he was not made party in the case. This

was another infirmity in the trial of both the cases,

which  resulted  in  passing  conflicting  decisions  in

both the cases.

34) This was neither noticed by the Special Court

nor  High  Court  which  resulted  in  recording

reversing  finding  on  the  same  set  of  facts  and

evidence.

35) Fourth,  we  also  find  that  the  issue  of

maintainability  of  application  and  also  issue  of

limitation  in  filing  the  two  applications  by  the

respondents under the Act should also have been

decided along with other issues.

36) Lastly,  we  find  that  the  High  Court  while

reversing the findings of the Special Court decided

the  writ  petition  under  Article  227  like  a  first

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Appellate Court by appreciating the entire evidence

little realizing that the jurisdiction of the High Court

while deciding the writ Petition under Article 227 is

not akin to appeal and nor it can decide the writ

petition like an Appellate Court.

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

been decided by the High Court keeping in view the

scope and ambit of  Article  227 for its  exercise as

explained  by  this  Court  consistently  in  series  of

decisions  while  examining  the  legality  and

correctness of judgment of Special Court impugned

in the writ petition.

38) In the light of aforementioned five reasons, we

have formed an opinion that the trial  in both the

cases  was  unsatisfactory  inasmuch  as  it  caused

prejudice to the  parties  and especially  to the one

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

consider it proper to probe at this stage the entire

factual issues argued by the learned counsel for the

parties  at  great  length  with  reference  to  the

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pleadings and the evidence of the parties. We also

do not consider it proper to record any finding on

merits either way and leave the parties to contest

the case before the Special Court de novo on merits.

39) In  view  of  foregoing  discussion,  the  appeals

succeed  and  are  allowed  in  part.  The  impugned

judgment as also that of the Special Court are set

aside.  

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

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

respective  files  before  the  Special  Court.  It  is

directed that both the cases be clubbed together for

their disposal on merits. It is further directed that

the District Collector and the Special Officer, Urban

Land Ceiling, Hyderabad would also be made party

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

respectively. These two newly added non-applicants

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

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

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41) All  the  parties  in  both  the  cases  are  also

afforded an opportunity to amend their pleadings in

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

additional  evidence both oral  and documentary in

addition to what has already been filed in support of

their respective case, if they so desire to file.

42) After completion of the pleadings, if considered

necessary,  the  Court  may  also  frame  additional

issues or/and recast the issues already framed and

then decide both the cases by common judgment.

43) As  mentioned  above,  the  cases  in  question

arise out of the Act and hence the factual and legal

findings  have  to  be  rendered  keeping  in  view the

relevant provisions of the Act as interpreted by this

Court in decided cases cited by the learned counsel

in support of their contentions.

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

expressed any opinion on the merits of the case and

nor  recorded  any  finding  on  the  merits  of  the

controversy.  The  Special  Court  would,  therefore,

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decide  both  the  cases  strictly  in  accordance  with

law on merits without making any reference to the

order  of  the  Special  Court  and  High  Court  and

uninfluenced  by  any  observations  made  by  this

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

judgments.             

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

                         …...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi; November 15, 2017

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