WP/4095/2000 of Y.Jangamma Vs Special Court on 31 December 2009

* THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA+ WRIT PETITION No.4095 of 2000% 31-12-2009Between:Y.Jangamma, W/o.Late Yellaiah,Aged 46 years, Occ:Household,R/o.H.No.17-1-210/3/9/B, Santhosh Nagar, Hyderabad,And others...... PETITIONERSANDSpecial Court under A.P.Land Grabbing (Prohibition)Act, at Hyderabad, rep.by its Chairman,Boorgula Ramakrishna Rao Bhavan, Tank Bund, Hyderabad,And others.

.....RESPONDENTSCounsel for the Appellants : Sri Bajrang Singh ThakurCounsel for the Respondents: GP for Revenue< Gist:

> Head Note:? CITATIONS:1.2004 (5) SCALE 740 = (2004) 7 SCC 3982.2007 (1) ALD 72 (SC)3.2007 (5) ALD 6 (DB)4.AIR 2002 SC 1012 = (2002) 3 SCC 2585.AIR 2008 SC 11056.2009 (6) ALD 102 (SC) = (2009) 9 SCC 4477.2003 (7) Supreme 4568.(2007) 6 SCC 5669.(2000) 3 SCC 35010.(2000) 7 SCC 543

THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLAWRIT PETITION No.4095 of 2000Dated: 31.12.2009

Between:Y.Jangamma,And others.

…PetitionersandSpecial Court under A.P.Land Grabbing (Prohibition) Act, at Hyderabad,And others.…Respondents THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA

WRIT PETITION No.4095 of 2000

ORDER:(per Hon’ble Sri Justice V.V.S.Rao)The writ petition is filed assailing the judgment dated 07.02.2000 in L.G.A.Nos.21 and 23 of 1999 of theSpecial Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (the Act, for brevity), confirming thejudgment appealed. Those two cross appeals were filed by the parties to O.P.333 of 1989 on the file of the Courtof the Chief Judge, City Civil Court, Hyderabad (hereafter referred to as the primary Tribunal), whereby andwhereunder it was held that the second respondent herein is the owner of land admeasuring 600 square yards inplot No.6, survey No.48 situated at Madannapet Village, Hyderabad (hereafter called, the petition scheduleproperty), and further declaring that petitioners herein grabbed the petition schedule land and directing them to paythe value of land as recorded in the basic value register to the extent of the land of the second respondent herein. In this order, the parties are referred to as they are arrayed before the primary Tribunal.Mohd.Khaiser Mohiuddin was the owner of considerable extent of land in survey No.48 of MadannapetVillage. He got the layout approved (Veeraswamy layout) and sold house plots. The petitioner, Nirmala Devi,purchased the petition schedule property under registered sale deed dated 25.11.1965. It appears, Khaiser alsosold similar extents to Eshwaraiah on 15.11.1971. Four years thereafter, on 21.03.1976 Eshwaraiah sold 166square yards to Venkatamma, W/o.Yellaiah, fifth respondent, and 433 square yards on 20.07.1976 to Laxmamma,W/o.Babaiah, eighth respondent. Petitioner filed O.S.No.3385 of 1982 on the file of the Court of the VIII AssistantJudge, City Civil Court, Hyderabad, for perpetual injunction against respondent Nos.3 and 4, namely, KarimMohd.Khan and Altunnisa Begum. The suit was later amended as a declaratory suit and was marked asO.S.No.1581 of 1983. In 1987 the suit was dismissed as withdrawn. In the meanwhile, the Act came into forceand the petitioner filed O.P.No.333 of 1989 under Section 7-A of the Act before the primary Tribunal seeking therelief of declaration and possession. Yellaiah was shown as first respondent besides four others who are claimingseparate interest. After death of Yellaiah his another wife, Jangamma, and children were added as partyrespondent Nos.6 to 11. The petitioner alleged that in 1982 Yellaiah encroached upon the petition schedule landand raised constructions thereon. The respondents opposed the O.P denying land grabbing and claimedindependent interest under the documents referred to hereunder. During the enquiry by the primary TribunalP.Ws.1 and 2, and R.Ws.1 to 4 were examined. Documentary evidence by way of Exs.A1 to A4 and B1 to B40were brought on record in addition to Exs.C1 to C3.

The primary Tribunal framed as many as six issues including an additional issue. The Deputy Director,Survey and Land Records, Hyderabad, was appointed as the Commissioner to identify, localize and to note downthe physical features of petition schedule property and submit the report. On such survey the report – Ex.C-2 alongwith sketch -Ex.C3, were submitted and Commissioner was examined as C.W.1. Considering the evidence, thelearned primary Tribunal allowed the O.P declaring that the petitioner has title to the property, that respondentNos.5 and 8 purchased under agreement of sale part of the land which was already sold to the petitioner, and thatvendor of the respondents himself had no title to the land. The plea of adverse possession was not accepted. Therelief of possession was, however, denied as primary Tribunal thought that awarding value of the land and furtherequal amount in addition to the actual value would meet the ends of justice. Accordingly, the O.P was partlyallowed by order dated 21.12.1998.

The respondents filed LGA No.21 of 1999 and the petitioner filed LGA.No.23 of 1999 seeking the relief ofpossession. The Special Court framed the points for consideration. Whether the petitioner established title to thepetition schedule property? On this question after considering the evidence on record afresh it was held that thepetitioner proved her title and that the boundaries of petition schedule property tallied with the boundariesmentioned in the sale deed Ex.A2 under which the petitioner purchased the property. It was also held that theproperty purchased by the respondents under Ex.B33 to an extent of 433 square yards which is a triangular pieceas well as the property purchased by respondents’ vendor under Ex.B34 - sale deed, formed part of the petitionschedule property, and therefore, the petitioner proved her title. On the plea of adverse possession raised by therespondents the Special Court recorded finding that in view of the proceedings initiated by the petitioner in 1982 byfiling a suit the title claimed by respondents was never adverse to that of the petitioner. The Special Court thenobtained the basic value particulars from the Office of the Sub Registrar, Ashok Nagar, and determined the marketvalue at Rs.2,000/- per square yard. While dismissing both the appeals, the Special Court directed therespondents to pay the compensation in six equal monthly installments commencing from 15.03.2000, in default ofwhich the petitioner was given liberty to approach the Special Court for appropriate orders. In this petition for writ of certiorari to quash the order of the Special Court confirming that of primary Tribunalthe learned Counsel for the petitioners herein (respondents) submits that a specific plea of land grabbing was notraised as required under Sections 3 and 4 of the Act, and therefore, the LGOP filed by the petitioner is notmaintainable. He would urge that when there are complicated issues of title and adverse possession the petitionerought to have approached the civil Court and LGOP under Section 7-A of the Act is not maintainable. He nextlycontends that LGOP is barred by limitation. Further, it is the submission of the learned Counsel that initially thepetitioner filed a suit and withdrew it without reserving the right to file a fresh suit and initiate fresh proceedings asrequired under Order XXIII Rule 1(4) of CPC and therefore, as per Order II Rule 2 of CPC the OP is barred. Lastly,he argued on the plea of adverse possession. He placed reliance on Gouni Satya Reddi v Government ofAndhra Pradesh[[1]],State of Andhra Pradesh v Prameela Modi[[2]], and Mohammad Vajahath Hussain @Fasi v Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad[[3]]. Learned Counsel for the second respondent herein (petitioner) made the following submissions. The plea

based on Order XXIII Rule 1(4) of CPC or Order II Rule 2 of CPC or the plea of limitation were never raised beforethe primary Tribunal or appellate Special Court, and therefore, they cannot be permitted to be raised in the writpetition for the first time. Respondent Nos.6 and 7 as legal representatives of first respondent claimed interest in130 square yards and respondent Nos.8 to 11 claimed interest through respondent No.5 to an extent of 226 squareyards and balance area was claimed by respondent Nos.2 to 4, who did not challenge the order of the primaryTribunal before the appellate Court and it has become final. On considering the evidence and the report of theCommissioner the Special Court found that the land purchased by the respondents’ vendor under Ex.B34 and landpurchased by the respondents under Ex.B33 are one and the same, that by the time under Ex.B33 they purchasedthe land, their vendor Eshwaraih had no title and they are land grabbers within the meaning of the Act. Respondents encroached upon the petitioner’s land in 1982, and the petitioner commenced proceedingsimmediately thereafter, and therefore, the plea of adverse possession is not available. Section 10 of the Act castsburden on the respondents to prove that the land purchased by them under Ex.B33 is not a grabbed land, and theyfailed to discharge burden. Reliance is placed on Konda Lakshmana Bapuji v Government of AndhraPradesh[[4]]and K.Sharada Bai v Smt.Shamshunnisa[[5]]. Lastly, placing reliance on the latest judgment of theSupreme Court in Y.Satyanarayan Reddy v Mandal Revenue Officer, A.P[[6]], learned Counsel would urge thatthe order of the Special Court in confirming the order of the primary Tribunal directing to pay compensation in lieuof possession must be set aside and a direction should be issued to the respondents to handover that portion ofthe land which has been grabbed by them.The scope of judicial review of the order passed by the Special Court either in exercise of its originaljurisdiction or appellate jurisdiction has been considered by the Supreme Court in Konda Lakshmana Bapuji(supra). It was held that if the Special Court has not excluded relevant material from the consideration and nottaken into consideration irrelevant material, its order cannot be interfered with under Article 226 of the Constitutionof India. In State of Andhra Pradesh v P.V.Hanumantha Rao[[7]]dealing with the judicial review of orders of Special Court it was laid down as under.

True it is that remedy of writ petition available in the High Court is not against the ‘decision’ of thesubordinate court, tribunal or authority but it is against the ‘decision making process’. In the‘decision making process’, if the court, tribunal or authority deciding the case, has ignored vitalevidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of therelevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Courtunder Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to theparty complaining.subordinate court, tribunal or authority but it is against the ‘decision making process’. In the‘decision making process’, if the court, tribunal or authority deciding the case, has ignored vitalevidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of therelevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Courtunder Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to theparty complaining.

…

…

This Court has recognized the right of the High Court to interfere in orders of sub ordinate courts and tribunalswhere (1) there is an error manifest and apparent on the face of the proceedings such as when it is based onclear misreading or utter disregard of the provisions of law and (2) a grave injustice or gross failure of justicehas occasioned thereby.where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based onclear misreading or utter disregard of the provisions of law and (2) a grave injustice or gross failure of justicehas occasioned thereby.

No doubt, it was held that neither in exercise of power of writ under Article 226 nor in supervisoryjurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge inre-appreciation or evaluation of evidence…jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge inre-appreciation or evaluation of evidence…

(emphasis supplied)

In A.P.Housing Board v Md.Sadathulla[[8]], referring to Konda Lakshmana Bapuji (supra) the scope ofjudicial review in respect of orders passed under the Act it is observed as under.…It was also held that the jurisdiction of High Courts under Article 226 as also of this Court under…It was also held that the jurisdiction of High Courts under Article 226 as also of this Court underArticle 136 of the Constitution is limited and findings of fact arrived at by the Special Court cannot be interferedwith in exercise of constitutional jurisdiction. The law laid down in Konda Lakshmana Bapuji was reiteratedand quoted with approval in State of A.P v P.V.Hanumantha Rao (dead) through, L.Rs and another ((2003) 10SCC 121 = JT 2003 (7) SC 438) by observing that an order passed by the Special Court can be interferedwith by a High Court in exercise of power of judicial review where (1) there is an error manifest and apparenton the face of the proceedings such as when it is based on clear misreading or utter disregard of theprovisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby. [See also GouniSatya Reddi v Government of A.P. and others (2004 ALT (Rev.) 31 (SC) = (2004) 7 SCC 398].with in exercise of constitutional jurisdiction. The law laid down in Konda Lakshmana Bapuji was reiteratedand quoted with approval in State of A.P v P.V.Hanumantha Rao (dead) through, L.Rs and another ((2003) 10SCC 121 = JT 2003 (7) SC 438) by observing that an order passed by the Special Court can be interferedwith by a High Court in exercise of power of judicial review where (1) there is an error manifest and apparenton the face of the proceedings such as when it is based on clear misreading or utter disregard of theprovisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby. [See also GouniSatya Reddi v Government of A.P. and others (2004 ALT (Rev.) 31 (SC) = (2004) 7 SCC 398].

In K.Sharada Bai (supra) the Supreme Court indicated that when the order of the Special Court is passed onappreciation of oral and documentary evidence, the writ Court cannot interfere with the order. The relevantobservations are as below.appreciation of oral and documentary evidence, the writ Court cannot interfere with the order. The relevantobservations are as below.

…Inasmuch as the above conclusion is based on the appreciation of oral and documentary evidence led bythe applicant and the respondents as well as revenue records and the report of the Commissioner, the saidconclusion cannot be faulted with. The High Court, after analyzing all the materials and finding that thepetitioners before them who are appellants before us are land grabbers and grabbed 12½ guntas of land,concurred with the decision arrived at by the Special Court and dismissed their writ petitions.In the light of the abundant acceptable materials in the form of oral and documentary evidence coupled withthe report of the Mandal Revenue Officer and of the Commissioner, we agree with the conclusion arrived atby the Special Court and the High Court and reject the claim of the appellants…the applicant and the respondents as well as revenue records and the report of the Commissioner, the saidconclusion cannot be faulted with. The High Court, after analyzing all the materials and finding that thepetitioners before them who are appellants before us are land grabbers and grabbed 12½ guntas of land,concurred with the decision arrived at by the Special Court and dismissed their writ petitions.In the light of the abundant acceptable materials in the form of oral and documentary evidence coupled withthe report of the Mandal Revenue Officer and of the Commissioner, we agree with the conclusion arrived atby the Special Court and the High Court and reject the claim of the appellants…

Therefore, though there is a tendency on the part of the Lawyers to argue writ petitions filed against theorders of Special Court as appeals, we cannot consider the writ petition as an appeal. The judicial review ispermissible to a limited extent when i) the relevant material is excluded and irrelevant material is considered ii)there is an error manifest and apparent on the face of the proceedings and iii) a grave injustice or gross failure ofjustice is occasioned thereby.

Before we take up main contentions we will consider the submission of the learned Counsel for the petitioner(second respondent herein) that the order of the primary Tribunal and Special Court insofar as they direct thepayment of compensation in lieu of handing over possession must be set aside in view of the ratio in Y.Satyanarayan Reddy (supra). In the said case construing Section 8(7) of the Act, the apex Court held that theSpecial Court has no jurisdiction to award compensation payable by land grabbers in lieu of restoration ofpossession. The relevant observations are as under.

It appears that this patently wrong notion that the Special Courts have the power and authority to declinerestoration of possession of the grabbed land in favour of its owner and in lieu of restoration of possessiondirect the “land grabber” to make payment of compensation equal to its market value has its roots in an earlierjudgment of the High Court, on which great reliance was placed by the appellant, in C.P.Roy v. SpecialCourt, under A.P.Land Grabbing Act and another, 2000 (3) ALD 766 (DB). In that case a Division Benchof the High Court, in Paragrah 56 of the judgment, made the following observation.restoration of possession of the grabbed land in favour of its owner and in lieu of restoration of possessiondirect the “land grabber” to make payment of compensation equal to its market value has its roots in an earlierjudgment of the High Court, on which great reliance was placed by the appellant, in C.P.Roy v. SpecialCourt, under A.P.Land Grabbing Act and another, 2000 (3) ALD 766 (DB). In that case a Division Benchof the High Court, in Paragrah 56 of the judgment, made the following observation.

“56. Section 8 of sub-section (7) of the Land Grabbing Act give powers to the Special Courtthat in case where it is found that the land has been grabbed, in order to see justice is done,can call upon the grabber to compensate the State by paying the market price and alsodamages in lieu of handing over possession. But before fixing the market value, an opportunityshall be given to the person aggrieved to make a representation or adducing evidence todetermine the correct value…”that in case where it is found that the land has been grabbed, in order to see justice is done,can call upon the grabber to compensate the State by paying the market price and alsodamages in lieu of handing over possession. But before fixing the market value, an opportunityshall be given to the person aggrieved to make a representation or adducing evidence todetermine the correct value…”

From the portion of the High Court judgment highlighted above, it is clear that the High Court substituted thewords “for wrongful possession”, as appearing in Section 8(7) for “in lieu of handing over possession” of thelands grabbed and thereby gave a meaning that is exactly opposite to what is envisaged under the section. We have no hesitation in holding that, in the case of CP Roy, the High Court completely misread Section 8(7)and gave it a meaning completely opposite to what is said in it.

The petitioner prayed for declaration and direction for delivery of possession. When delivery of possessionwas denied by the primary Tribunal, the petitioner filed LGA.No.23 of 1999 against all those who are respondentsin LGOP. Her appeal was dismissed confirming primary Tribunal against all respondents. Insofar as respondentNos.2 to 4 involving an extent of 300 square yards of petition schedule land has become final. The petitioner hasnot filed a separate writ petition questioning LGA No.23 of 1999. If we accept the plea at this stage andfundamentally approve the decision of the Courts below, we would have two situations. In one case some of therespondents would be directed to deliver the possession and in respect of other respondents they would berequired to pay compensation in lieu of handing over of possession. We cannot issue such orders so as to createincongruous situations and give two different types of reliefs in one case. Therefore, we cannot accept the plea ofthe learned Counsel for the petitioner/second respondent.

We shall now take up other points argued by Counsel. In a case filed under the Act, the parties cannotignore the evidentiary principles in Section 10 of the Act which deals with burden of proof. According to the saidprovision a person alleging land grabbing and invoking the jurisdiction of the Special Tribunal or Special Courthas to prima facie prove his title. Then entire burden shifts to the opposite party to prove that the petition scheduleland has not been grabbed by him and that he is in possession and enjoyment of the property in his own right. Thepetitioner relied on Exs.A1 to A4. Ex.A1 is the sketch plan of the petition schedule land and Ex.A2 is theregistration extract of the sale deed dated 25.11.1965 under which she purchased the property in ‘Veeraswamy’layout which itself is marked as Ex.A3. She also relied on Ex.C2 and Ex.C3 the report and sketch submitted by theDeputy Director for Survey and Land Records. Considering these documents the primary Tribunal came to theconclusion that respondent Nos.2 and 4 as well as respondent Nos.5 to 11 were in occupation of certain portion ofland covered by Ex.A2, that though respondent Nos.5 to 8 and respondent Nos.2 and 3 claimed that theypurchased certain extents of land they neither produced title deeds into the Court nor examined themselves(Exs.B33 and 34 are unregistered documents), and that the petitioner proved her title. The Special Court againconsidered the matter with reference to Exs.A4, B2, B33, B34 and Exs.C2 and C3. It was noticed that when theplan attached to Ex.B34 is superimposed on Ex.A2 it becomes clear that 433 square yards which was purchasedunder Ex.B33 is a piece out of the property purchased under Ex.A2. After doing so, the Special Court also referredto the evidence of the Deputy Director of Survey – CW.1 and Ex.C2 – report. On perusing the impugned orderof the Special Court and consideration of point No.1 thereunder we have no hesitation to hold that Special Courthas considered all the relevant facts of the material with regard to the title of the petitioner/second respondent. As noticed supra when once prima facie the petitioner discharged burden, and proved title to the petitionschedule property, the burden shifted to the respondents. They relied on Exs.B2, B33 and B34. Their vendorpurchased the property under Ex.B34, dated 15.11.1971, and by that time the petitioner has purchased the sameproperty under Ex.A2, dated 25.11.1965. Therefore, the plea of the respondents that they purchased the propertyand were having title to the same is certainly misconceived as their vendor Eshwaraiah could not have conveyed abetter title which does not inhere in him.

The next aspect of the matter is plea of adverse possession. I n Konda Lakshmana Bapuji (supra)

considering the plea, the Supreme Court laid down as under.

Issues

The question of a person perfecting title by adverse possession is a mixed question of law and fact. Theprinciple of law in regard to adverse possession is firmly established. It is a well-settled proposition that merepossession of the land, however long it may be, would not ripen into possessory title unless the possessorhas animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title tothe land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animuspossidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear andunequivocal through it need not be addressed to the real owner. For reckoning the statutory period to perfecttitle by prescription both the possession as well as the animus possidendi must be shown to exist. Where,however, at the commencement of the possession there is no animuspossidendi, the period for the purposeof reckoning adverse possession will commence from the date when both the actual possession andassertion of title by the possessor are shown to exist…principle of law in regard to adverse possession is firmly established. It is a well-settled proposition that merepossession of the land, however long it may be, would not ripen into possessory title unless the possessorhas animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title tothe land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animuspossidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear andunequivocal through it need not be addressed to the real owner. For reckoning the statutory period to perfecttitle by prescription both the possession as well as the animus possidendi must be shown to exist. Where,however, at the commencement of the possession there is no animuspossidendi, the period for the purposeof reckoning adverse possession will commence from the date when both the actual possession andassertion of title by the possessor are shown to exist… The Special Court found the plea of adverse possession against the respondents observing as under.…The earliest document to show the act of possession is Ex.B4 dt.7-4-1982. it is a notice issued by theMunicipal Corporation of Hyderabad u/s.452 of Act II of 1956 to 5[th] respondent. In the notice, it is stated thatshe erected basement for three rooms unauthorizedly and called upon her as to why the same should not beremoved, altered or pulled down. This notice indicates that by the date of the notice, the 5[th] respondent…The earliest document to show the act of possession is Ex.B4 dt.7-4-1982. it is a notice issued by theMunicipal Corporation of Hyderabad u/s.452 of Act II of 1956 to 5[th] respondent. In the notice, it is stated thatshe erected basement for three rooms unauthorizedly and called upon her as to why the same should not beremoved, altered or pulled down. This notice indicates that by the date of the notice, the 5[th] respondent

erected basement for three rooms unauthorizedly. That means the construction was commenced at or aboutthat time unauthorizedly without the permission of the M.C.H. The O.P was filed on 29-3-1989. Earlier to that,suit in O.S.3385/1982 dt.22.11.1982 was filed for injunction, etc., which was referred to in the foregoingparagraphs. Therefore, the act of possession adverse to the real owner commenced in the year 1982 only. No other evidence is placed before us to show that there was any other act of anterior possession to Ex.B4with reference to the petition schedule property. Therefore, we are not inclined to accept the submission ofthe learned Counsel for respondents 6 to 11 that the said respondents prescribed title by adversepossession. We have no reason to differ from the finding recorded by the Special Tribunal in this regard.

The observations and findings of the Special Court in the light of the record are unexceptionable and merelybecause there could be other view possible the certiorari Court cannot interfere with such findings. Therefore, wehave to reject the plea of adverse possession. Learned Counsel also raised other submissions based on Order II Rule 2 and Order XXIII Rule 1(1) to 1(4) ofCPC and the plea that the buildings are not within the purview of the Special Tribunal/Special Court. We cannotaccept these pleas. First, these questions were not raised before the primary Tribunal or the appellate Tribunal. Secondly, admittedly, the earlier suit, being O.S.No.3385 of 1982, later O.S.No.1581 of 1983, was filed by thepetitioner against respondent Nos.2 and 3 and the same is nothing to do with the question of title or land grabbing. Secondly, even arguing that writ petitioners were also parties to the said suit, it is a suit for mere injunction, andordinarily, the findings recorded in an earlier injunction suit cannot be treated as res judicata as held by theSupreme Court in Sajjadanashin Sayed v Musa Dadabhai Ummer[[9]]and Gram Panchayat of VillageNaulakha v Ujagar Singh[[10]]. In Sajjadanashin (supra), the Supreme Court considered the question “what ismeant in Section 11 CPC by an issue being collaterally or incidentally in issue as distinct from being directly andsubstantially in issue?” The question was answered by their Lordships as follows.

…therefore instances where in spite of a specific issue and an adverse finding in an earlier suit, the findingwas treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each ofthese cases, and not necessary for the earlier case nor its foundation…..when a question arises before the courts as to whether an issue was earlier decided only incidentally orcollaterally, the courts could deal with the question as a matter of legal principle rather than on vaguegrounds…was treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each ofthese cases, and not necessary for the earlier case nor its foundation…..when a question arises before the courts as to whether an issue was earlier decided only incidentally orcollaterally, the courts could deal with the question as a matter of legal principle rather than on vaguegrounds…

Conclusion

The above view was reiterated in Gram Panchayat of Village Naulakha (supra) as under.We may also add one other important reason which frequently arises under Section 11 CPC. TheWe may also add one other important reason which frequently arises under Section 11 CPC. Theearlier suit by the respondent against the Panchayat was only a suit for injunction and not one ontitle. No question of title was gone into or decided. The said decision cannot, therefore, be bindingon the question of title. See in this connection Sajjadanashin Sayed v Musa Dadabhai Ummer ((2000) 3SCC 350) where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in anearlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit orproceeding where title is directly in question, unless it is established that it was “necessary” in the earlier suitto decide the question of title for granting or refusing injunction and that the relief for injunction was founded orbased on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointedout in that case.title. No question of title was gone into or decided. The said decision cannot, therefore, be bindingon the question of title. See in this connection Sajjadanashin Sayed v Musa Dadabhai Ummer ((2000) 3SCC 350) where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in anearlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit orproceeding where title is directly in question, unless it is established that it was “necessary” in the earlier suitto decide the question of title for granting or refusing injunction and that the relief for injunction was founded orbased on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointedout in that case.

(emphasis supplied)

Therefore, we are not inclined to hold that LGOP filed by the petitioner/second respondent is barred. Thesubmission that the respondents constructed buildings, and therefore, they do not come under the purview of theAct cannot be accepted. Such a plea was not raised before the Courts below and there was no finding recordedthereon. Even otherwise, as per Section 2(c) of the Act “land” includes rights in or over land, benefits to arise out ofland and buildings, structures and other things attached to the earth or permanently fastened to anything attachedto the earth. In LGOP the petitioner only pleaded that respondents raised constructions and as observed by theSpecial Court when the respondents made some attempts to construct, the Municipal Corporation stopped theconstruction. In the absence of any clinching evidence we cannot proceed on the premise that respondentsconstructed buildings as now pleaded before this Court.

In the result, for the above reasons, the writ petition fails and is accordingly dismissed with costs.

_______________

(V.V.S.RAO, J)

.12.2009

________________(B.N.RAO NALLA, J)

Note: LR copy to be marked.B/o. vs

[1]2004 (5) SCALE 740 = (2004) 7 SCC 398

[2]2007 (1) ALD 72 (SC)

[3]2007 (5) ALD 6 (DB)

[4]AIR 2002 SC 1012 = (2002) 3 SCC 258

[5]AIR 2008 SC 1105

[6]2009 (6) ALD 102 (SC) = (2009) 9 SCC 447[7]2003 (7) Supreme 456[8](2007) 6 SCC 566[9](2000) 3 SCC 350[10](2000) 7 SCC 543