NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELATE JURISDICTION

CIVIL APPEAL NO.1754 of 2006

State of Andhra Pradesh ….. Appellant

Versus

Anjuman Ara Begum & Others ….. Respondents

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 15th

September, 2005 of the High Court of Andhra Pradesh at

Hyderabad in writ petition No.3646 of 2003. In the said writ

petition, the order passed by the Special Court under the

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 at

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Hyderabad in Land Grabbing Code No.141 of 1989 dated

10.6.2002 was challenged.

2. The main grievance of the State of Andhra Pradesh in

this appeal is that the case of the appellant was not decided

on merit either by the Special Court or by the High Court. The

Special Court decided the case entirely relying on a short

order of this court in State of Andhra Pradesh & Others v.

Merit Enterprises & Others (1998) 8 SCC 749. According to

the appellant, the Special Court committed a serious error in

invoking the concept of res judicata in the facts of this case.

3. In the impugned judgment, the High Court recorded the

submissions of the appellant. The learned counsel for the

appellant relied on the findings of the High Court on this

aspect. Relevant findings are reproduced as under:

“The learned Special Court, according to the

learned Government Pleader for Revenue,
committed a mistake by holding that it was a case
of res judicata, as respondents 22 to 59 were not
parties to that judgment. It may be true that the
judgment in M/s Merit Enterprises v. State of AP
may not operate as res judicata, but at the same
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time, we agree with the learned counsel for the

respondents that it was a piece of evidence in terms
of Section 13 of the Evidence Act (I of 1872). Once
the Court had decided, and the decision had been
upheld even by the Supreme court that applicant-
State Government was not the owner of the
property in question, that judgment could be used
as evidence.”

4. It may be pertinent to mention that in the impugned

judgment, the High Court has not gone into the question of

ownership and possession. The relevant findings of the High

Court are reproduced as under:-

“There is no finding by the Special Court as to who

was in possession of the land. Therefore, we will
not be in a position to decide the issue with regard
to the possession and ownership over the said land,
as this Court in its writ jurisdiction would not be
able to appreciate the evidence although parties
have led evidence with regard to the factual
position. Therefore, while dismissing this writ
petition, we make it clear that this Court has not
gone into the question of ownership or possession.”

5. According to the appellant, the courts have erroneously

dismissed the appellant’s case by relying on orders passed in

certain other proceedings.

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6. The appellant submitted that in 1989, the State of

Andhra Pradesh filed a petition under sections 7 and 8 of the

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982

against respondent no.1. According to the appellant, the land

in question measured 18493 sq. mtrs. (approximately 4.23

acres) and fell within T.S. No.3/1/1/, Block S, Ward No.11

and T.S. No.3/1 (part) and 3/2 (part), Block U, Ward No.11,

Shaikpet Village. The State’s further case is that this land

was earlier Plot No.129/75/D5, which fell within erstwhile

Survey No.403, which was earlier numbered as Survey

No.129/1, comprising Acre 2967-27 Guntas and belonged to

the State Government, having vested in it in 1949 along with

the rest of the properties of the Nizam of Hyderabad.

7. The case was initially filed against respondent no.1

alone. Through various interim orders, respondent nos.2-59

got themselves impleaded. The respondents can be classified

into two categories according to their interests: Respondent

nos.1-21 had set up one case and respondent nos.22-59 had

set up entirely a different case.

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8. The case of respondent nos.1-21 was that the land

corresponded to Plot No.129/75/D5, which land was assigned

to one Mohammed Mahboob Ali Pasha (the father of

respondent no.1) by the erstwhile Jubilee Hills Municipality in

1342 Fasli (corresponding to 1932 CE) and was, therefore,

patta (private owned) land. Respondent nos.2-21 also claimed

to be legal heirs of Pasha. None of the courts below have

expressed any view on the merits of this defence.

9. The case of respondent nos.22-59, on the other hand,

was that the land formed part of Survey No.129/6. Their case

was that this area, covering schedule property and other land,

in all 6 Acres and 20 Guntas, was assigned to one Jaffar Ali

Sharif by Sarfekhas authorities in 1341 fasli (corresponding to

September 1930). On 20.03.1965 Jaffar Ali Sharif sold that

land to two persons, Karamath Ali and Vijay Haridas. These

two persons sold different portions of the land to different

people, and eventually to these respondents. The merits of

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this defence have also not been dealt with any of the courts

below.

10. Respondent nos.22-59 further contended that the same

Karamath Ali and Vijay Haridas also sold portions of the land

to other persons and eventually some portion was sold to a

company called Merit Enterprises. The State Government had

initiated proceedings against Merit Enterprises under the

Andhra Pradesh Land Encroachment Act, 1905 (for short

“Land Encroachment Act”). Merit Enterprises moved the High

Court in W.P.No.1963/1983, which quashed the said

proceedings by its judgment dated 28.09.1983 and the

judgment of the High Court was affirmed by the Supreme

Court.

11. According to these respondents, the application schedule

land as originally given by the State included the land on

which Merit Enterprises had its construction. The Special

Court vide order dated 19.12.2001 directed the State to delete

the said extent of land from the case. Accordingly, the State
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amended its petition and restricted its claim to 14,835 sq.

mtrs. It has been stated during the hearing before this court

that the State should not have agreed to delete the land from

its claim and that it will now take recourse to whatever

remedy it has even against Merit Enterprises.

12. Respondent nos.22-59 relied on the judgment of the High

Court in Merit Enterprises to contend that this judgment

conclusively established the assignment in favour of Jafar Ali

Sharif and consequently the title of Karamat Ali and Vijay

Haridas. The further contention of respondent no.22-59 was

that since they also claimed their title through the same

Karamat Ali and Vijay Haridas, their title also stood

established which meant that the land did not belong to the

State Government.

13. The Special Court accepted the above contention of

respondent nos.22-59. On this basis alone, it held that the

land did not belong to the State Government and dismissed

the petition. The High Court confirmed this order.

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14. In this case, on the direction of the court, the

Commissioner has submitted a Report. Survey No.129 (1) is

government land and Survey No.129/6 is private land. It was

the State’s case that Plot No.129/75/D5 fell within Survey

No.129/1 and since it was an unrecognized plot, the land

belonged to the State.

15. In order to clarify the issue of the location of the land in

dispute, the Special Court appointed a Commissioner. The

Commissioner examined the documents and physically visited

the site and gave his report. The gist of the report is as follows:

“(a) The land claimed by respondent no.1 is located

in T.S. No.3/1, Block S, Ward No.11 and T.S.
No.3/1 (part) and T.S. No.3/2 (part) of Block U,
Ward No.11.

(b) As per the entries in the Town Survey Land

Register, T.S. No.3/1 and 3/2 of Block U, Ward
No.11 are recorded as graveyards. T.S. No.3/1 of
Block S, Ward No.11 is shown as government land.
All this is correlated to Old Survey No.403.

(c) The land claimed by respondent no.1 is Plot

No.129/75/D5 which is government land. It is not
patta land.

(d) Regarding the case of the other respondents

claiming that the land falls under Survey No.129/6,
there is no such survey number in Shaikpet village.
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(e) The claim of the Government over the land is

correct.”

16. The report submitted by the Commissioner was taken on

record on 11.07.1996. However, astonishingly, according to

the State of Andhra Pradesh, the Special Court has not even

referred this report in its final order. The case of the State of

Andhra Pradesh can be summarized from the pleadings before

the Special Court as follows:-

(a) In 1916, the initial survey of Shaikpet

village was conducted. Survey No.129
comprising Acre 3288-02 Guntas was
classified as government land.

(b) In 1921, Survey No.129 was subdivided

into :

(i) Survey No.129/1 comprising Acre 3097-

39 Guntas and belonging to the
Government; and

(ii) Survey Nos.129/2 to 129/10 comprising

Acre 190-03 Guntas which were patta
lands.

(c) In 1936, a renumbering of survey numbers

took place. Survey No.129/1 became
Survey No.403. Survey Nos.129/2 to
129/10 became Survey Nos.353 to 402.
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(d) Around the same time, Survey Nos.129/11

to 129/87 were carved out of Survey
No.129/1, as a result of which its area
became Acre 2967-27 Guntas.

(e) In 1977, a town survey was conducted

under the Andhra Pradesh Survey &
Boundaries Act, 1923 (‘Survey &
Boundaries Act’). Survey No.403 is now
referred to as different Blocks all falling
within Ward Nos.9-12 of shaikpet.

(f) The land in question measures 14835 sq.

mtrs. and falls within T.S. No.3/1/1, Block
S, Ward No.11 and T.S. No.3/1 (part) and
3/2 (part), Block U, Ward No.11.
• Amended Petition, Concise Statement and
Additional Concise Statement @ Additional
Documents Vo.IV pp.582-601.

• Deposition of PW2, Mr. Seetha Ram Reddy,

Mandal Revenue Officer, Golconda @
Additional Documents Vol.IV pp.490-494.

• Certified Extract of Khasra Pahani Patrika

of the year 1981-82 @ Additional
Documents Vol.III pp.459.

• Correlation Chart showing Old Survey

Numbers, New Survey Numbers and Town
Survey Numbers @ Additional Documents
Vol.V pp.848-852.

• Detailed Map of the area @ Additional

Documents Vol.V p.970.”
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17. On the basis of the aforementioned evidence, it is the

case of the appellant State that the land in question belonged

to the State. Reference has been made to sections 13 and 14

of the Survey & Boundaries Act by the State. Section 13

provides for the notification of the town survey in the official

gazette and further provides that after such notification the

record of the survey shall be conclusive proof that the

boundaries determined and recorded therein have been

correctly determined and recorded. Section 14 provides that

any person aggrieved by such notification may institute a suit

within three years to challenge the same. In the instant case,

no suit has been filed within three years or even thereafter,

and the records of the Town Survey have thus attained

finality.

18. According to the appellant State, the courts below were

in serious error in placing reliance on the order of this Court

in Merit Enterprises (supra) and disposing of the appellant’s

case. The land on which Merit Enterprises has its

construction is adjacent to the land claimed in the

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proceedings. This has never been denied and indeed is a

matter of record. The dispute in this case is regarding the

survey number.

19. The High Court in the Merit Enterprises case was not

concerned with the title of any party. Merit Enterprises was

constructing a multi-storeyed building on certain premises

situated at Road No.13, Banjara Hills, Hyderabad having a

total area of 4090 sq. yds. In March 1983, the State

Government issued a “notice to quit” under the provisions of

the Land Encroachment Act. Merit Enterprises claimed to

trace its title to Jafar Ali Sharif. The State Government’s

contention was that Sharif had no title and the purported

assignment in his favour was a forgery. It also contended that

the writ petition against the notice was not maintainable

because it involved a disputed question of fact, viz., whether

the land was government land or private land. The conclusion

of the High Court was that there was a bona fide dispute with

regard to title between the parties. The State Government

could decide this unilaterally and evict Merit Enterprises. It

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relied on the judgment of this court in Government of

Andhra Pradesh v. Thummala Krishna Rao & Another

etc. (1982) 2 SCC 134 to hold that that Government could

take action under the Land Encroachment Act only when it is

absolutely sure of its title. Where there was a bona fide

dispute, no proceedings under this Act could be taken.

20. According to the appellant, proceedings under the Land

Encroachment Act and the Land Grabbing Act are

fundamentally different. The former is a summary unilateral

action of the State Government whereas the latter involves a

decision by a Special Court after examining the evidence. This

qualitative difference has also been completely ignored by the

courts below. This court laid down that the Special Court has

the jurisdiction to decide title disputes.

21. According to the appellant, the court below mis-

appreciated the order in the case of Merit Enterprises

(supra). The Special Court understood the judgment as having

upheld the title of Karamath Ali and Vijay Haridas and this is
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a fundamental error. According to the appellant, the High

Court in the instant case also failed to correct the error of the

Special Court. According to the appellant, the only finding

returned by the High Court in the Merit Enterprises case was

that for the purposes of the Land Encroachment Act, there

was a bona fide dispute between the parties. There was no

finding on title; nor was there any occasion to give such a

finding. The courts below failed to address or even raise this

question and are, therefore, in error.

22. Mr. Gopal Subramanium, the learned Additional Solicitor

General appearing for the State of Andhra Pradesh submitted

that respondent nos. 26, 28, 29, 30, 31, 32, 35, 36, 37, 38,

39, 41, 43, 44 and 45 had in fact filed applications to the

State Government for regularization of their title. All these

applications were rejected by order dated 14.06.1999. In case

the respondents had the clear title, where was the question of

their filing applications before the State Government for

regularization of their title?

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23. Mr. Gopal Subramanium placed reliance on the

judgment of this court in Mahalaxmi Motors Ltd. V. Mandal

Revenue Officer & Others (2007) 11 SCC 714. In this case it

has been held that the fact that regularization applications

had been filed was held to be admission of lack of title. The

appellant also submitted that none of the courts below have

considered the merits of any of the claims of the parties. No

finding has been given regarding the survey number of the

land. The Commissioner’s report has been ignored.

24. According to the appellant, the appropriate course is to

set aside the judgments of the courts below and remit the

matter back to the Special Court for being decided afresh on

merit uninfluenced by any findings or observations.

25. It was submitted on behalf of respondent nos.1 to 21

that the suit land falls in Survey No.129/75/D5 and it was

purchased by their father Late Mohd. Maqbool Ali Pasha from

Surfekhas Authority in 1342 fasli. Thereafter, the family of

respondent no.1 has been in peaceful and continuous

possession of suit land for more than 50 years.

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26. It was further asserted by respondent nos.1 to 21 that

the possession of the suit land was handed over to the father

of respondent no.1 vide Collector’s letter dated 3rd Ardhibast

1346. The learned counsel for these respondents further

submitted that the land in dispute was also subject matter in

the case of Merit Enterprises being writ petition no.1963 of

1983. In the said judgment the High Court has relied upon

the Map prepared by the State Government for identification

and demarcation of government and private lands in Banjara

Hills. On the basis of the said Map and also on the basis of

the submissions made by the appellant State, the High Court

categorically held that Survey No.129/75/D5 is a patta land.

It was also submitted that Merit Enterprises case was upheld

by this court and the same attained finality. In this view of

the matter, this appeal deserves to be dismissed.

27. Learned counsel for the respondent nos.22 and 23

admitted the arguments of respondent nos.24-59. According

to them, the only difference between the case of respondent

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nos.22-23 and respondent nos.24 to 59 is that the respondent

nos.22 and 23 never applied for regularization under any

government scheme or notification.

28. Mr. Ranjit Kumar, learned Senior Advocate appearing on

behalf of respondent nos.24 to 56 and 59 submitted that one

Jaffar Ali Shareef was granted patta to an extent of 6 acres 20

guntas in Survey No.129/6 of Shaikpet village, Hyderabad

district by the Surfekhas Authorities vide orders dated 10th

Aban 1341 Fasli i.e. September 1930. According to him, the

schedule land to the extent of 14835 sq. mts. is part of the

above mentioned 6 acres 20 guntas. He further submitted

that Shri Jaffar Ali Shareef sold the said 6 acres and 20

guntas of land to Karamath Ali and Vijay Haridas under

registered sale deed dated 20.3.1965.

29. On 22.3.1975, respondent nos.22 to 33 jointly entered

into an agreement of sale with Karamath Ali to purchase

different extents of house plots totally admeasuring 5870 sq.

yards in a plotted area, after deducting the common area for

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roads in the abovesaid 6 Acres 20 guntas of land. They have

paid the entire sale consideration to Karamath Ali. Similarly,

on 19.4.1974, respondent nos.34 to 44 have jointly entered

into an agreement of sale with Karamath Ali to purchase

different extents of house plots totally admeasuring 8480 sq.

yards area after deducting the common area for roads in the

abovesaid Ac 6.20 guntas of land. No sale deed was executed

and Karamath Ali expired on 20.1.1994. Respondent no.24

to 44 filed suits in OS No.278 of 1997 and OS No.252 of 1997

respectively before the learned IVth Additional Judge, City

Civil Court, Hyderabad against the legal heirs of late

Karamath Ali i.e. wife and daughter of specific performance of

the agreement of sale and the suits were decreed by the

learned Court below vide judgment and decree dated

30.4.1997.

30. Mr. Ranjit Kumar also submitted that the decision has

been rendered on the basis of the sale deed by Karamat Ali

qua lands in favour of Merit Enterprises in which a judgment

had been rendered by the Division Bench on 28.9.1983

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upholding the title of Karamat Ali and Merit Enterprises. The

State of Andhra Pradesh had preferred an appeal in the

Supreme Court in the year 1984 being Civil Appeal No.267 of

1984. After filing of the said appeal in the Supreme Court

against Merit Enterprises, the State Government had also filed

a land grabbing case being LGC No.141 of 1989. In that land

grabbing case, the land of Merit Enterprises being 4090 sq.

yds. was also included.

31. Mr. Ranjit Kumar also submitted that the case of Merit

Enterprises has been finally decided by this Court and

acquired finality. According to him, the case of the

respondent represented by him is not different than the case

of the Merit Enterprises.

32. Mr. Ranjit Kumar further submitted that the Division

Bench considering the entire record and cogent evidence came

to the correct conclusion and no interference is called for by

this Court and the appeal filed by the State deserves to be

dismissed.
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33. We have heard the learned counsel for the parties at

length and perused the relevant documents and record.

34. In the impugned judgment, it is specifically observed that

the High Court has not gone into the question of ownership

and possession. The parties have taken entirely conflicting

stands regarding ownership of the lands in question. There is

no determination of the conflicting stand of the parties by the

Special Court. The High Court without any cogent reasons

upheld the judgment of the Special Court. It may be

pertinent to mention that several respondents have filed

applications for regularization. This fact would clearly lead to

the conclusion that even the respondents were not sure of

their title, otherwise there was no occasion for them to file

applications for regularization.

35. In this view of the matter, it has become imperative that

the impugned judgments of the High Court and the Special

Court be set aside. Consequently, the judgments are set aside

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and the case is remitted to the Special Court for deciding the

same afresh on merits after hearing the counsel for the

parties. The Special Court is directed to decide the case

without being influenced by any findings or observations made

by any court. Since this case has been pending for quite

sometime, we request the Special Court to decide this case as

expeditiously as possible. To avoid any delay, the parties are

directed to appear before the Special Court on Ist December,

2008.

36. This appeal is accordingly disposed of. In the facts and

circumstances of this case, we direct the parties to bear their

own costs.

…….……………………..J.
(Dalveer Bhandari)

…….……………………..J.
(Harjit Singh Bedi)
New Delhi;
November 7, 2008.
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