REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1849 OF 2002

V. Laxminarasamma … Appellant

Versus

A. Yadaiah (Dead) & Ors. … Respondents

WITH

CIVIL APPEAL NO.1850 OF 2002

J U D G M E N T

S.B. Sinha, J.

Determination  of  a  question  of  adverse  possession  whether  would

come  within  the  purview  of  the  jurisdiction  of  Special  Tribunal  and/or

Special  Court  constituted  under  the  Andhra  Pradesh  Land  Grabbing

(Prohibition) Act, 1982 (hereinafter called and referred to for the sake of

brevity as  ‘the Act’)  has  been referred  to  this  Bench,  noticing  purported

conflict in the decisions of two Division Benches of this Court in  Konda

Lakshmana Bapuji v. Government of Andhra Pradesh & Ors. [(2002) 3 SCC

258] and N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing

(Prohibition) Act & Ors. [(2006) 4 SCC 214].

Before, however, adverting to the said question, we may notice some

salient features of the said Act.

The Government of Andhra Pradesh noticed organized attempts  on

the part of certain lawless persons operating individually and in groups, to

grab either by force or by deceit or otherwise, lands (whether belonging to

the Government,  a  local  authority,  a  religious  or  charitable  institution  or

endowment, including a wakf, or any other private persons) as also the fact

that the land grabbers are forming bogus co-operative housing societies or

setting up fictitious claims and indulging in large scale and unprecedented

and fraudulent  sales  of  lands through unscrupulous  real  estate  dealers  or

otherwise  in  favour  of  certain  sections  of  the  people  resulting  in  large

accumulation of unaccounted wealth and as thereby public order was also

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adversely  affected  now  and  then  by  such  unlawful  activities  of  land

grabbers in the State in respect of urban and urbanisable land.  The said Act

was enacted with a view to prohibiting the activities of land grabbing in the

State of Andhra Pradesh and to provide for matters connected therewith.   

The Act is a special Act.  It is a self contained code.   

‘Land grabber’ is defined in section 2(d) of the Act to mean a person

or a group of persons who commits land grabbing and includes any person

who gives financial aid to any person for taking illegal possession of lands

or for construction of unauthorized structures thereon, or who collects or

attempts to collect from any occupiers of such lands, rent, compensation and

other charges by criminal intimidation; or who abets the doing of any of the

above mentioned acts; and also includes the successors in interest.   

‘Land grabbing’ has been defined in Section 2(e) to mean :

“every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious  or  charitable  institution  or  endowment, including a wakf, or any other private person) by a person  or  group  of  persons,  without  any  lawful entitlement  and  with  a  view  to  illegally  taking possession  of  such  lands  or  enter  into  or  create illegal  tenancies  or  lease and licence  agreements

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or any other illegal agreements in respect of such lands,  or  to  construct  unauthorized  structures thereon for sale or hire, or give such land to any person  on  rental  or  lease  and  licence  basis  for construction,  or  use  and  occupation  of unauthorized  structures;  and  the  term  ‘to  grab land’ shall be construed accordingly.”

Section 3 declares ‘land grabbing’ in any form to be unlawful and any

activity  connected  therewith  to  be  an  offence  punishable  under  the  Act.

Section 4 imposes prohibition on land grabbing, violation whereof results in

penal action (s)  as specified therein.  Section 7 provides for constitution of

Special Courts.  The Chairman of the Special Court is a sitting or retired

Judge of the High Court and out of other four members thereof two ought to

be sitting or retired District  Judges (Judicial members) and the other two

who hold or have held a post not below the rank of a District Collector.  The

process  for  appointment  of  the  Chairman  and  Members  of  the  Judicial

Members of the Special Court has been laid down therein.   

The Special Court has been empowered to make regulations relating

to the procedure to be followed for the conduct of cases as also the manner

of  taking  decisions.   Sub-section  (5D)  of  Section  7  of  the  Act  reads  as

under:

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“5(D)(i)  Notwithstanding  anything  contained  in the  Code  of  Civil  Procedure,  1908,  the  Special Court may follow its  own procedure which shall not  be inconsistent  with  the principles  of natural justice  and  fair  play  and  subject  to  the  other provisions  of  this  Act  and  of  any  rules  made thereunder while deciding the Civil liability.

(ii) Notwithstanding  anything  contained  in Section  260  or  Section  262  of  the  Code  of Criminal  Procedure,  1973,  every  offence punishable  under  this  Act  shall  be  tried  in  a summary way and the provisions of Sections 263 to 265 (both inclusive) of the said Code shall, as far as may be apply to such trial.

(iii) When a person is convicted of an offence of land grabbing attended by criminal force or show of force or by criminal intimidation, and it appears to the Special Court that, by such force or show of force  or intimidation  the land  of  any person has been grabbed,  the Special  Court  may if  it  thinks fit, order that possession of the same be restored to that  person  after  evicting  by force,  if  necessary, any other person who may be in possession of the property.”

Section  7A provides  for  the  powers  of  the  Special  Tribunal,  sub-

section (1) whereof reads as under :

“B7-A. “Special  Tribunals  and its  powers  etc:— (1) Every Special Tribunal shall have power to try all  cases not  taken cognizance  of  by the Special court relating to any alleged act of land grabbing or  with  respect  to  the  ownership and title  to,  or lawful  possession  of  the  land  grabbed  whether before or after the commencement of the Andhra

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Pradesh  Land  Grabbing  (Prohibition) (Amendment) Act, 1987 and brought before it and pass  such  orders  (including  orders  by  way  of interim directions) as it deems fit.

Provided  that  if,  in  the  opinion  of  the  Special Tribunal, any case brought before it is prima facie frivolous  or  vexatious,  it  shall  reject  the  same without any further enquiry;

Provided  further  that  if  in  the  opinion  of  the Special Tribunal any case brought before it is a fit case  to  be  tried  by the  Special  court  it  may for reasons to be recorded by it transfer the case to the Special Court for its decision in the matter.”

The  first  proviso  appended thereto  empowers  the  Special  Court  to

reject a case brought before it without any further enquiry, if prima facie it

appears to be frivolous or vexatious.  Special tribunal may also for reasons

to be recorded by it transfer a case to the special court for its decision in the

matter.  A special tribunal ordinarily is required to follow the procedures

prescribed in the Code of Civil Procedure.   

An appeal  is  maintainable from a judgment  or order  to the special

court.   Sub-section  (4)  of  Section  7A  makes  a  finding  of  the  Special

Tribunal with regard to any alleged act of land grabbing to be conclusive of

the said fact as also the persons who committed the act of land grabbing

conclusive.   

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Section 8 provides for the procedure and power of the Special Courts,

the relevant parts whereof read as under:

“8. Procedure and Powers of the Special Court: —(1) The Special Court may, either suo motu, or on  application  made  by  any  person,  officer  or authority,  take  cognizance  of  and try every case arising out of any alleged act of land grabbing, or with  respect  to  the  ownership  and  title  to,  or lawful  possession  of,  the  land  grabbed,  whether before or after the commencement of this Act, and pass  such  orders  (including  orders  by  way  of interim directions) as it deems fit.

XXX XXX XXX

(2B)  Notwithstanding  anything  in  the  Code  of Criminal Procedure, 1973, it shall be lawful for the Special Court to try all offences punishable under this Act. (Central Act 2 of 1974).

(6) Every  finding  of  the  Special  Court  with regard to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons who committed such land grabbing, and  every  judgment  of  the  Special  Court  with regard to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land.

Provided  that  the  Special  Court  shall  by notification specify the fact of taking cognizance of the case under this Act.  Such notification shall state that any objection which may be received by the Special  Court  from any person including the custodian  of  evacuee  property  within  the  period specified therein will be considered by it.

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Provided  further  that  where  the  custodian  of evacuee  property  objects  to  the  Special  court taking cognizance of  the case, the  Special  Court shall not proceed further with the case in regard to such property;

Provided also that the Special Court shall cause a notice of taking cognizance of the case under the Act, served on any person known or believed to be interested in the land, after a summary enquiry to satisfy  itself  about  the  persons  likely  to  be interested in the land.

(7) It  shall  be  lawful  for  the  Special  Court  to pass such order as it may deem fit to advance the cause  of  justice.   It  may award  compensation  in terms  of  money  for  wrongful  possession  of  the land  grabbed  which  shall  not  be  less  than  an amount equivalent to the market value of the land grabbed  as  on  the  date  of  the  order  and  profits accrued from the land, payable by the land grabber to the owner of the grabbed land and may direct re-delivery  of  the  grabbed  land  to  its  rightful owner.  The amount of compensation and profits, so awarded and costs of re-delivery, if any, shall be recovered as an arrear of land revenue in case the Government is the owner, or as a decree of a Civil  Court,  in any other case to be executed by the Special Court.

Provided  that  the  Special  Court  shall,  before passing an order under this sub-section, give to the land  grabber  an  opportunity  of  making  his representation or of adducing evidence, if any, in this  regard and consider  such  representation  and evidence.

(8) Any case, pending before any court or other authority immediately before the constitution of a Special  Court,  as  would  have  been  within  the jurisdiction  of  such  Special  Court,  shall  stand

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transferred to the Special court as if the cause of action on which such suit or proceeding is based had  arisen  after  the  constitution  of  the  special court.”

Section 9, inter alia, provides that the provisions of the Code of Civil

Procedure  and  the  Code  of  Criminal  Procedure  shall  apply  to  the

proceedings  before the Special  Court  insofar  as they are not  inconsistent

with the provisions of the Act and for the purposes thereof the Special Court

shall  be deemed to be a ‘Civil  Court’ or as the case may be a ‘Court  of

Sessions’  and shall  have all  the  powers of a Civil  Court  or  the Court of

Sessions.   

Section 10 provides for the burden of proof.   Section 15 of the Act

contains a non-obstante clause stating that the provisions thereof shall have

effect  notwithstanding  anything  inconsistent  therewith  contained  in  any

other  law for  the  time being  in  force  or  custom, usage  or  agreement  or

decree or order of a court of any other tribunal or authority.   

Rule making power is vested in the State in Section 16 of the Act.

Section 17A provides for review of the judgment and order passed by the

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special  court  under  Section  8.   Section  17B  provides  for  guidelines  for

interpretation of the Act as contained in Schedule appended thereto.

The  Government  of  Andhra  Pradesh  made rules  in  exercise  of  its

power conferred by sub-section (1) of Section 16 of the Act known as the

Andhra Pradesh Land Grabbing (Prohibition) Rules,  1988 (for  short  “the

Rules”).   Rule  5  lays down the  procedure  for  suo  motu  action.   Rule  6

provides for verification of application.  Rule 7 mandates that the Special

Court before taking cognizance of the case is to give notice in form 2A by

publishing it in the Andhra Pradesh Gazette.  Sub-section (2) thereof makes

a similar provision in relation to the Special Tribunal.  Rules furthermore

provide  for  notice  to  the  person  interested  as  also  notice  to  the  land

grabbers.  It provides for filing of a counter affidavit.  Rule 10 provides for

the application of the Code of Civil Procedure in the matters as provided for

therein.  Rule 15 lays down the procedure for taking possession.   

The Special Court has also framed regulations in exercise of its power

conferred upon it under sub-section (5A) of Section of the Act, inter alia,

providing for :

1. Place of sitting of the Special Courts (Regulation 4)

2. Sitting hours of the Special Court (Regulation 5)  

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3. Working hours of the office of the Special Court (Regulation 6)

4. Scrutiny of the application (Regulation 8)

5. Weekly and daily cause list (Regulation (11)

6. Documents  to  accompany  summons  to  the  respondent  (Regulation

12)

Chapter III of the Regulations provide for the powers and functions

of the officers of the Court.  The Regulations furthermore provide for the

matters  relating  to  proceedings  before  the  Special  Court,  inspection  of

documents by strangers, inspection of the records, production of records in

the custody of a court, production of records in the custody of public officer

other than a court, etc.

The  Act  indisputably  confers  a  wide  jurisdiction  upon  the  Special

Court and the Special Tribunal.  The Tribunal or the Special Courts are high

powered ones.  For all intent and purport, the Tribuanl and Special Courts

are substitutes for the civil court and the appellate authority.   

Statements  of objects  and reasons for enacting the said Act clearly

establish  that  the said Act was enacted to achieve a special  purpose;  the

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‘object’ being to prohibit land grabbing resulting in breakage of public law

and order.   

The  Act  brings  within  it  umbrage  not  only ‘grabbing  of  lands’  of

Government or local  authorities  but  also statutory authorities  and private

persons.  It aims at those persons who form a distinct class.  The Special

Courts have both civil and criminal jurisdiction.  The provisions of Code of

Civil Procedure and Code of Criminal are ordinarily applicable subject, of

course, to the provisions to the contrary.  It also safeguards the interest of

the  noticees  from  vexatious  or  frivolous  litigations.   Before  taking

cognizance of a case, a report of the revenue authorities are required to be

obtained.  In the event a suo motu action is to be taken, the proceeds are

required to be heard.   

A legal fiction is created that it would be civil court and/or court of

sessions  and would  otherwise have the  same power  as  civil  court  or  the

court of sessions as provided for in the Code of Civil procedure and Code of

Criminal Procedure, the Act provides for transfer of cases to the Tribunals

in relation to the matters pending before any court of law relating to land

grabbing.  The Act also contains a non-obstante clause.

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The  Special  Courts  and  Tribunals,  indisputably  are  entitled  to

determine any question or issue including the question of title or possession

in the proceedings initiated before it.  Special Courts and the Tribunal not

only have trappings of a court but also of a civil court and, thus, are entitled

to determine complicated questions of title.   

Would the question of adverse possession be beyond the purview of

its jurisdiction is the question.  There appears to be an apparent conflict in

the  decision  in  Konda  Lakshmana  Bapuji (supra)  and  N.  Srinivasa  Rao

(supra).   Whereas  in  the  former,  the  defence  of  adverse  possession  had

specifically been gone into holding that the appellant therein had acquired

indefeasible title by adverse possession, opining:

“17. It is pertinent to note that mere allegation of an act of land grabbing is sufficient to invoke the jurisdiction of the Special Court. In both Section 7 (1)  and Section  8(1)  of  the  Act  the phrase  “any alleged act of land grabbing” is employed and not “act of land grabbing”. It appears to us that it  is designedly done by the legislature to obviate the difficulty of duplication of trial once in the courts under the Act and over again in the ordinary civil court. The purpose of the Act is to identify cases involving allegation  of  land grabbing for  speedy enquiry  and  trial.  The  courts  under  the  Act  are nonetheless civil courts which follow the Code of Civil  Procedure  and  are  competent  to  grant  the same reliefs which can be obtained from ordinary civil courts.”

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It was furthermore observed:

“A combined reading of these provisions leads to the  conclusion  that  the  jurisdiction  of  the  civil court  under  Section  9  of  the  Code  of  Civil Procedure and under the Civil Courts Act is ousted and the Act which is special law will prevail and as such the Special Court will have jurisdiction in respect of the matters dealt with thereunder. (See: Sanwarmal Kejriwal v. Vishwa Coop.  Housing Society Ltd.)”

In  N.  Srinivas  Rao (supra),  another  Division  Bench,  however,

unfortunately, without noticing  Konda Lakshamana Bapuji (supra), despite

holding that there was no actual dispossession, opined :

“…In  our  view,  in  a  proceeding  before  the Special  Court  the  only  issue  which  fell  for decision is whether there has been an act of land grabbing as  alleged and who is  the guilty  party. The  Special  Court  has  no  jurisdiction  to  decide questions relating to acquisition of title by adverse possession  in  a  proceeding under  the  Act as  the same  would  fall  within  the  domain  of  the  civil courts.  The  learned  Special  Judge  apparently travelled  beyond  the  jurisdiction  vested  in  him under  the  1982 Act  in  deciding  that  even  if  the provisions of Section 47 of the Act were a bar to transfer without the sanction of the Tahsildar, the occupants  of  the  land  had  perfected  their  title thereto by way of adverse possession.”

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We may, however, notice that  another Bench of this Court  in  A.P.

Housing Board v.  Mohd.  Sadatullah & Ors. [(2007)  6 SCC 566]  despite

noticing both the decisions did not enter into the larger question and in the

peculiar  facts  and attending circumstances  thought  it  appropriate  that  the

finding as to adverse possession be set aside by granting liberty to all or any

of  the  respondents  to  take  appropriate  proceedings  by  approaching  a

competent civil court, if they claim title on the basis of adverse possession.

Mr.  M.N.  Rao,  learned  senior  counsel  appearing  on  behalf  of  the

appellant,  would  submit  that  the  Tribunal  being  not  a  Court  and  as  the

protections afforded to a defendant in a civil suit have been taken away by

reason of the provisions  of the said  Act,  they require strict  construction.

Jurisdiction  of  the  Civil  Court  having  been  expressly  ousted  and  in  any

event, the Tribunal and/or special court being not an alternative efficacious

complicated question in regard to adverse possession, it was urged, must be

held to be beyond the purview of the Tribunal.  

Mr. Anoop G. Chaudhary, learned senior counsel appearing on behalf

of the respondent, on the other hand, would contend that the said Act being

a special law having been enacted to deal with special circumstances and

providing  for  a  high  powered  tribunal,  it  must  be  held  to  have  the

jurisdiction to deal with a question of adverse possession.  Acquisition of an

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indefeasible title by adverse possession, the learned counsel would submit,

also being a question of title, there is absolutely no reason as to why special

court  and/or  tribunal  can be said to  be having no jurisdiction in  relation

thereto.

The validity of the Act is not in question.  We have, therefore, no

other option but to proceed on the basis that the same is constitutional.  In

view of the question referred to before us, we are also not called upon to

decide the larger question as to whether by reason of the provisions of the

Act, the jurisdiction of the Civil Court has been ousted.   

We have noticed  the  provisions  of  the Act.   The Act provides  for

inbuilt  safeguards for the defendants.   The Special  Court or the Tribunal

derives jurisdiction of a case only in the event it is satisfied with regard to

the  existence  of  the  jurisdictional  facts  viz.  activities  of  land  grabbing.

Notices  are  issued  by  the  Tribunal  only  on  arriving  at  a  prima  facie

satisfiaction.  Hearing of the noticee is mandatory in the event a suo motu

action under the Act is to be taken.  A report of the revenue officer who is

man on the spot is required to be obtained.   

Rules and Regulations framed under the Act provide for a detailed

procedure.   The  Tribunal  or  the  Special  Court,  thus,  cannot  act  in  an

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arbitrary  or  capricious  fashion.   The  provisions  of  the  Act  provide  for

adequate remedy in case an application is found to be vexatious or frivolous

although  it  exercises  a  very  wide  jurisdiction  both  under  Civil  as  also

Criminal law.  The Tribunal is a high powered one.  It can execute its own

decrees.  The provisions of the Act, as noticed hereinbefore, contain non-

obstante  clause  in  terms whereof  the  provisions  thereof  prevail  over  not

only Code of Civil Procedure but also A.P. Civil Court’s Act.   

‘Civil Court’ is defined under the A.P. Civil Courts Act.  Tribunals

and/or  Special  Courts  by reason of  a legal  fiction  created  are both Civil

Court as also the Court of Sessions.  Legal fiction created under the Act is

of wide amplitude. [See Collector of Bombay v.  Municipal Corporation of

the City of Bombay [AIR 1951 SC 469]; and Mahabir Vegetable Oils Pvt.

Ltd. and Anr. v. State of Haryana and Ors., (2006) 3 SCC 620].

The Tribunal and/or Special Court are ordinarily required to follow

the  provisions  of  the  Code  of  Civil  Procedure  and  Code  of  Criminal

Procedure.   Being  a  ‘court’,  the  provisions  of  the  Indian  Evidence  Act

would also be applicable.  It is true that burden of proof is on the noticee

being an alleged land grabber, but the same by itself would not mean that it

is  an  interim  Tribunal  vis-à-vis  the  civil  court.   Enactment  of  such  a

provision, moreover, was within the competence of the Legislature.  Only

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because burden of proof is on the noticee, the same would not mean that he

has been deprived of his right to defend himself in the proceedings.  Burden

of proof is in the realm of procedural law.  By reason of such a provision,

substantive right of the parties on an immovable property is not taken away.

Jurisdiction is exercised by the Tribunal and/or Special Court upon arriving

at a satisfaction in regard to existence of jurisdictional fact.  Even in terms

of Article 65 of the Schedule appended to the Limitation Act, 1963 in the

event,  the plaintiff  proves his  title,  the burden of proof would be on the

defendant  to show that  he has acquired title  by adverse possession.  {See

Annakili v. A. Vedanayagam and Ors. [(2007) 14 SCC 308].

The defendant  in all  circumstances,  therefore,  would be entitled to

prove that he is lawfully entitled to possess the land.  No law says that if a

new forum is created by a special statute in terms whereof the jurisdiction of

the civil court becomes barred, the Tribunal constituted thereunder must be

a substitute for a civil court, not only with regard to all its powers but also

with all its deficiencies.  If the Special Act satisfies substantive due process,

in our opinion, the same would satisfy the legal requirements.

Acquisition of  an indefeasible  title  by prescription  is  a creation  of

statute.  Section 27 of the Limitation Act provides for extinction of a title of

the owner of the land and vesting thereof in a person who has acquired the

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same by adverse possession.  The plea of adverse possession, however, must

expressly be raised and established.   

The question referred to before us has been gone into by a Bench of

this Court in  Mahalaxmi Motors Ltd. v.  Mandal Revenue Officer and Ors.

[(2007) 11 SCC 714], wherein this Court took into consideration the earlier

decisions of this Court including Konda Lakshmana Bapuji (supra) and N.

Srinivasa Rao (supra) and Mohd. Sadatullah (supra) as also State of A.P. v.

Prameela Modi [(2006) 13 SCC 147].   

In Mahalaxmi Motors (supra), it was held:

“36. We are bound by the decision of the larger Bench in this case (sic for coordinate bench). The Special Court exercises a jurisdiction of the civil court,  provisions of the Code of  Civil  Procedure being applicable. If it is a civil court, all questions relating to title and possession can be gone into. The  proceeding  can  be  initiated  in  terms  of Section  4  of  the  said  Act  against  a  person  who continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government,  local  authority,  religious  or charitable  institution  or  endowment  including  a wakf,  or  any  private  person.  If  and  when  a proceeding  is  initiated  under  the  said  Act,  the proceedee  not  only  can  raise  jurisdictional questions but can also raise questions relating to his title and possession. It is, therefore, difficult to comprehend as to how the Special Court would be debarred from determining the questions raised by the parties thereto.”

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It was opined :

“40. The  Tribunal  being  possessed  of  extensive jurisdiction, subject of course to fulfilment of the conditions  precedent,  for  initiation  of  the proceeding, was entitled to go into all issues. We have  furthermore  to  bear  in  mind  that  the definition of “land grabber” is not only restricted to the party to the proceeding, but also includes his predecessor-in-interest. Once the land is held to be a  government  land,  the  logical  corollary  thereto would be that subject to the law of limitation and prescription, the State would not lose the said right to the opposite party. 41. It  may  be  true  that  absence  of  lawful entitlement by itself may not be sufficient to pass a judgment  and  decree  in  favour  of  the  State  and against the land grabber, but also it must be shown that he had taken illegal possession thereof. 42. The Bench in  Konda Lakshmana Bapuji has applied both the broader and narrow meanings of the said expression. It would not, however, mean that all the tests laid down therein are required to be  satisfied  in  their  letter  and  spirit.  What  is necessary  to  be  proved  is  the  substance  of  the allegation. The proof of intention on the part of a person being his state of mind, the ingredients of the provisions must be considered keeping in view the  materials  on  records  as  also  circumstances attending  thereto.  What  would  be  germane  for lawful entitlement to remain in possession would be that if the proceedee proves that he had bona fide claim over the land, in which event, it would be for him to establish the same. 43. In  Konda  Lakshmana  Bapuji this  Court  has categorically held that  the requisite intention can be  inferred  by  necessary  implication  from  the averments  made  in  the  petition,  the  written statement  and  the  depositions  of  witnesses,  like any other fact. The question which must, therefore, have to be posed and answered having regard to the claim of the land grabber would be that, if on the face of his claim it would appear that he not only had no title, but claimed his possession only on the basis thereof, the same must be held to be

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illegal.  The  question  in  regard  to  lawful entitlement  of  the  proceedee,  therefore,  for invoking the charging section plays an important and significant role. 44. We  would  like  to  add  that  the  person’s purported belief that he is legally entitled to hold the land and his possession is not otherwise illegal must  also  be  judged  not  only from the  point  of time when he entered into the possession or when he had acquired the purported title but also from the  point  of  view  as  to  whether  by  reason  of determination of such a question by a competent court  of law, he has been found to have no title and  consequently  continuance  of  his  possession becomes illegal. If the proceedee against whom a proceeding has been initiated under the provisions of the said Act is entitled to raise the question of adverse  possession,  which  being  based  on knowledge of a lawful title and declaration of the hostile title on the part of the person in possession, there does not appear to be any reason as to why knowledge of defect in his title and consequently his  possession  becoming  unlawful  to  his  own knowledge would not come within the purview of the term “land grabbing” as contained in Section 2 (e) of the Act. The provisions of the Act must be construed so as to enable the tribunal to give effect thereto.  It  cannot  be  construed  in  a  pedantic manner  which  if  taken  to  its  logical  corollary would  make  the  provisions  wholly  unworkable. Only because a person has entered into possession of a land on the basis of a purported registered sale deed, the same by itself, in our considered opinion, would not be sufficient to come to the conclusion that  he  had  not  entered  over  the  land unauthorisedly, unfairly, or greedily. 45. For determination of such an issue, the Special Court  will  be  entitled  to  take  into  consideration not only the rival claims of the parties, but also the earlier round of litigation, if any, and subsequent conduct of the proceedee himself.”

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We agree with the legal principles laid down in the said decision and

are of the considered view that the Tribunal/Special Court constituted under

the  Act  has  the  requisite  jurisdiction  to  go  into  the  question  of  adverse

possession.   

We are not oblivious of a decision of this Court in  Government of

Andhra Pradesh v.  Thummala Krishna Rao and Anr. [(1982) 2 SCC 134]

wherein it was held that a question of title could not properly be decided in

a  summary enquiry  contemplated  by Sections  6  and 7 of  the  A.P.  Land

Encroachment Act, 1905.  In that case, the principal question, which arose

for  consideration,  was  as  to  whether  the  property  in  question  was  in

possession of the family of one Habibuddin for a long time and, thus, the

same had not  vested  in  the Government  by reason  of  a  land acquisition

proceeding initiated for acquisition of the land for Osmania University.  In

that  case,  Osmania  University  filed  a  suit  for  possession  which  was

dismissed on the premise that Habibuddin had perfected his title by adverse

possession.   Thereafter  Osmania University requested the Government of

Andhra Pradesh to take steps for summary eviction of the persons who are

not  in  authorized  occupation  of  the  said  plots.   The  observations  made

therein  must  be  held  to  have  been  made  in  the  aforementioned  factual

matrix.  

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It is one thing to say that a summary proceeding cannot be resorted to

when a noticee resists a bona fide dispute involving complicated questions

of title and his right to remain in possession of the land but it  is another

thing to say that although a Special Court and/or a Tribunal which has all

the  powers  of  a  civil  court  would  not  be  entitled  to  enter  into  such  a

contention.   Krishna  Rao (supra),  therefore,  in  our  opinion  has  no

application to the facts of the present case.

We,  therefore,  are  of  the  opinion  that  Konda  Lakshmana  Bapuji

(supra) lays down the correct law and  N. Srinivasa Rao  (supra) does not.

The reference is answered accordingly.  The merit of the matter may now be

determined by an appropriate Bench.

………………………………J. [S.B. Sinha]

………………………………J.  [Asok Kumar Ganguly]

………………………………J.  [R.M. Lodha]

New Delhi; March 3, 2009

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