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

J U D G M E N T

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

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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