# ) ' KONDA LAKSHMANA BAPUJI v. GOVT. OF ANDHRA PRADESH AND ORS

- **Citation:** [2002] 1 S.C.R. 651
- **Court:** Supreme Court of India
- **Decided:** 2002-01-29
- **Bench:** Syed Shah Mohammed Quadri, S.N. Phukan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/konda-lakshmana-bapuji-v-govt-of-andhra-pradesh-and-ors-18456
- **Pages:** 51

## Headnote

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982: Sections 2 to
10,15 and 17-B.
A
Land Grabbing-Offence of-Essential ingredients for-Object of the C
Act explained.
Land grabbing-Appellant in occupation of land pursuant to lease
executed by a person having no title-Notice of eviction served on occupant
by Government-Challenge by occupant-No final adjudication by High Court
on rival claims by parties-Suit filed by Government pursuant to liberty granted D
by High Court-Suit decreed by Special Court in favour of GovernmentFinding of Special Courts-It has jurisdiction to try the suit-Appellant had
no title to the suit land was thus a land grabber-Appellant had not perfected
his title by adverse possession-Decree passed by Special Court upheld by
High Court-Appeal before Supreme Court-Held, no interference was called E
for with the impugned judgment-Held, appellant was a land grabberPrinciples of Res Judicata and Lost Grant inapplicable-Appellant had not
perfected his title by adverse possession.
Land Grabbing-Special Courts under 1982 Act-Jurisdiction in respect
of matters under the Act-Held Special Court has jurisdiction-Jurisdiction of F
Civil Courts held ousted.
land grabbing-Allegation of-Presumption as to land grabbingBurden to prove that land was not grabbed-Held, burden is on the land
grabber to prove that land was not grabbed.
Code of Civil Procedure, 1908: Section II.
Explanation IV-Res Judicata-Principle of Constructive Res JudicataApplicability of
Constitutionof India, 1950 : Article 136
651
G
H
652
SUPREME COURT REPORTS
(2002) I S.C.R.
A
Appeal-Finding of Special Court that occupant was a land grabberNeither relevant material excluded nor irrelevant material taken into account
by Special Court-Finding affirmed by High Court-Held, no interference
was called for by Supreme Court.
Adverse possession-Claim of-Essential conditions to prove for-Both
B possession as well as animus possidendi must be shown to exist-Jnamdar--
Lessee of-Possession during continuance of lease-Such a lessee cannot
acquire title by adverse possession.
c
Easements Act, I 882 :
Principle of Lost Grant-Applicability of
Words and Phrases-'Grab'-Meaning of
The question involved in this appeal is whether the appellant has any
lawful entitlement-proprietary or possessory-to the land in dispute and
had come into possession of the land in dispute unauthorisedly. The
D appellant claimed his title to the land in dispute under an unregistered
agreement, dated November 28, 1954 for perpetual lease executed by 'A'
one of the successors of lnamdar in respect of Inam land. Subsequently
'A' executed a registered perpetual lease deed in favour of the appellant
on December 11, 1957. Thereafter 'C' filed a suit against the first
E respondent and the appellant and others praying for declaration of title
and recovery of ~ossession of the said land. During the pendency of suit
appellant was granted permission to construct a building on the land in
dispute on his giving an undertaking that in the event of the plaintiff
succeeding in the suit he would vacate the building without claiming any
compensation. The suit filed by 'C' was dismissed holding that he did not
F have any title to the suit land which was the Government land.
Subsequently, the land in dispute was declared as Government land and
under the A.P. Land Encroachment Act an order of eviction was passed
against the appellant on May 28, 1977. The said eviction order was
successfully challenged before a Single Judge of the A.P. High Court. The
Government of Andhra Pradesh filed a writ appeal before the Division
G Bench. Though the A.P. Land Grabbing (Prohibition) Act, 1982 came into
force on September 6, 1982 but that fact was not brought to the notice of
the Division Bench which dismissed the appeal holding that there was bona
fide dispute of title to the land in dispute between the appellant and the
Government which must be adjudicated upon by the ordinary Court of
H law and that the Government could not dec

## Text

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)
'
KONDA LAKSHMANA BAPUJI
v.
GOVT. OF ANDHRA PRADESH AND ORS.
JANUARY 29, 2002
[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]
Andhra Pradesh Land Grabbing (Prohibition) Act, 1982: Sections 2 to
10,15 and 17-B.
A
Land Grabbing-Offence of-Essential ingredients for-Object of the C
Act explained.
Land grabbing-Appellant in occupation of land pursuant to lease
executed by a person having no title-Notice of eviction served on occupant
by Government-Challenge by occupant-No final adjudication by High Court
on rival claims by parties-Suit filed by Government pursuant to liberty granted D
by High Court-Suit decreed by Special Court in favour of GovernmentFinding of Special Courts-It has jurisdiction to try the suit-Appellant had
no title to the suit land was thus a land grabber-Appellant had not perfected
his title by adverse possession-Decree passed by Special Court upheld by
High Court-Appeal before Supreme Court-Held, no interference was called E
for with the impugned judgment-Held, appellant was a land grabberPrinciples of Res Judicata and Lost Grant inapplicable-Appellant had not
perfected his title by adverse possession.
Land Grabbing-Special Courts under 1982 Act-Jurisdiction in respect
of matters under the Act-Held Special Court has jurisdiction-Jurisdiction of F
Civil Courts held ousted.
land grabbing-Allegation of-Presumption as to land grabbingBurden to prove that land was not grabbed-Held, burden is on the land
grabber to prove that land was not grabbed.
Code of Civil Procedure, 1908: Section II.
Explanation IV-Res Judicata-Principle of Constructive Res JudicataApplicability of
Constitutionof India, 1950 : Article 136
651
G
H
652
SUPREME COURT REPORTS
(2002) I S.C.R.
A
Appeal-Finding of Special Court that occupant was a land grabberNeither relevant material excluded nor irrelevant material taken into account
by Special Court-Finding affirmed by High Court-Held, no interference
was called for by Supreme Court.
Adverse possession-Claim of-Essential conditions to prove for-Both
B possession as well as animus possidendi must be shown to exist-Jnamdar--
Lessee of-Possession during continuance of lease-Such a lessee cannot
acquire title by adverse possession.
c
Easements Act, I 882 :
Principle of Lost Grant-Applicability of
Words and Phrases-'Grab'-Meaning of
The question involved in this appeal is whether the appellant has any
lawful entitlement-proprietary or possessory-to the land in dispute and
had come into possession of the land in dispute unauthorisedly. The
D appellant claimed his title to the land in dispute under an unregistered
agreement, dated November 28, 1954 for perpetual lease executed by 'A'
one of the successors of lnamdar in respect of Inam land. Subsequently
'A' executed a registered perpetual lease deed in favour of the appellant
on December 11, 1957. Thereafter 'C' filed a suit against the first
E respondent and the appellant and others praying for declaration of title
and recovery of ~ossession of the said land. During the pendency of suit
appellant was granted permission to construct a building on the land in
dispute on his giving an undertaking that in the event of the plaintiff
succeeding in the suit he would vacate the building without claiming any
compensation. The suit filed by 'C' was dismissed holding that he did not
F have any title to the suit land which was the Government land.
Subsequently, the land in dispute was declared as Government land and
under the A.P. Land Encroachment Act an order of eviction was passed
against the appellant on May 28, 1977. The said eviction order was
successfully challenged before a Single Judge of the A.P. High Court. The
Government of Andhra Pradesh filed a writ appeal before the Division
G Bench. Though the A.P. Land Grabbing (Prohibition) Act, 1982 came into
force on September 6, 1982 but that fact was not brought to the notice of
the Division Bench which dismissed the appeal holding that there was bona
fide dispute of title to the land in dispute between the appellant and the
Government which must be adjudicated upon by the ordinary Court of
H law and that the Government could not decide unilaterally in its own
...
>
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P.
653
favour and resort to summary eviction proceedings under the Andhra A
Pradesh Land Encroachment Act, 1905. Apprehending his dispossession
from the land in dispute the appellant again filed a writ petition which
was disposed by a Single Judge taking note of observations of the Division
Bench in the writ appeal and the fact that the respondent-State
Government had filed a suit in the City Civil Court, Hyderabad for B
declaration of title and recovery of possession of land in dispute on
November 25, 1985. In view of the provisions of sub-section (8) of Section
8 of the A.P. Land Grabbing (Prohibition) Act, 1982 the suit of the first
respondent-State Government was transferred to the Special Court. The
appellant challenged the order of the transfer of suit in the High Court
by filing a Civil Revision Petition which was later dismissed as not pressed. C
The first respondent filed petition under sub-section (1) of Section 7 read
with sub-section (1) of Section 8 before the Special Court on March 20,
1992 praying the Court to declare the appellant as a land grabber and
the structure raised thereon by him as unauthorized and to order his
eviction from the land grabbed and deliver possession of the same. The
appellant filed his objections on April 1 O, 1992 denying allegations of land D
grabbing but did not object to the jurisdiction of the Special Court.
The case of the appellant before the Special Court was that the land
in dispute was part ofSarfekhas land and that after Inam lnquiry, ordered
by H.E.H. the Nizam, Muntakhab was issued in favour of the Inamdar
(Maqtedar) and thereafter succession was granted in favour of his vendor E
(lessor). It was also stated that the appellant had been in possession of the
land from November, 1954 and that before him, his predecessors-in-title
were in possession for innumerable years as Inamdars, so he was entitled
to take on their possession for purposes of perfecting his title by adverse
possession.
F
On the other hand case of the respondent-Government was that there
were wrong entries in the record of rights which were corrected by the
Collector on October 5, 1959. It was stated, alternatively, if the land in
dispute formed part of the Inam land the same had vested in the first
respondent with effect from July 20, 1955, the date of vesting as per G
Section 3 of the A.P. (Telangana Area) Abolition of Inams Act, 1955. None
of the heirs of the alleged Inamdar appeared before the Collector,
Hyderabad, for claiming registration as .>ccupants under Section 10 of the
said Act. The land in dispute was shown as Maqta land belonging to one
'N' for some time and thereafter as Inam land and the appellant claimed
to be the lessee of'A' one of the successors to the said Maqta; he occupied H
654
SUPREME COURT REPORTS
[2002] I S.C.R.
A the said land in the year 1958 or so and raised a building on permission
given by Court. The claim of the appellant was not proper, valid and legal
because the land never belonged to the said Maqta. Even otherwise it
vested in the Government with effect from the date of the loams Act; the
order of the Collector, correcting entries in the record of rights which
B order had become final.
After considering the evidence adduced by both sides the Special
Court decreed the case of the first respondent on April 16, 1993, It held
that it had jurisdiction to try the case. If further held that the land in
dispute was not part of Inam and that event if it was so, there was no valid
C confirmation of grant of the land in dispute by the civil administrator and
consequently no title had passed to the vendor of the appellant and hence
no title was obtained by the appellant. Consequently, the appellant was a
land grabber. It also rejected the claim of the appellant that he had
perfected his title by adverse possession. Accordingly, it directed the
appellant to restore possession of the land to the Government in terms of
D the decree.
Assailing the order of Special Court, the appellant filed a writ
petition which was dismissed by a Division ,Bench of the High Court and
the decree passed by the Special Court was upheld.
E
In appeal to this Court it was contended on behalf of the appellant
that (i) the Special Court has no jurisdiction to try the case; (ii) appellant
could not be held to be a land grabber as his possession was alleged to be
permissive by the respondent-Government and he was found to have prima
facie bona fide claim to the property in dispute by the High Court while
setting aside the order of eviction passed against the appellant; (iii) the
F High Court in the Writ Petition filed by the appellant challenging the
validity of the notice of eviction under the Land Encroachment Act, gave
liberty to the first respondent-Government to establish its title in Civil
Court, which was also confirmed by the Division Bench in the writ appeal
filed by the first respondent, although before the date of the disposal of
the writ appeal the Act had come into force on September 6, 1982, the
G respondent-Government did not seek liberty from the Court to approach
the Special Court, therefore, on the principle of "might and ought", it was
,.
barred from approaching the Special Court and the proceeding before the
•·
Special Court was barred by the principle of res judicata; (iv) the appellant
who has been in possession of the land since 1954, on the basis of an
H unregistered agreement for perpetual lease perfected his title by adverse
i
r
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P.
655
possession; (v) possession in assertion of one's own title was animus of A
adverse possession and that passing an adverse order against the appellant
or the appellant himself filing an application to any statutory authorities
for occupancy certificate would not interrupt his adverse possession of the
land in dispute; (vi) even if the point of adverse possession is found against
the appellant, the principle of lost grant would apply as he has been in
possession of the land in dispute for a considerable length of time under B
an assertion of title; (vii) though perpetual lease agreement was registered
on December 12, 1957, yet it would relate back to the date of agreement
November 28, 1954 and (viii) in effect the suit of the first respondentGovernment being a suit for declaration of title and ejectment of the
appellant from the land in dispute, it ought to have been dismissed as the C
first respondent should succeed on the strength of its own title and it
cannot take advantage of the defects in the title of the appellant to the
land in dispute.
Dismissing the appeal, the Court
HELD : 1. The view of the High Court approving the view taken by
the Special Court that the appellant falls within the mischief of the
definition of the expression "land grabber" under the A.P. Land Grabbing
(Prohibition) Act, 1982 is sustainable. [700-Hl
D
2. A combined reading of the provisions contained in Sections 7, 8 E
1
and 15 of the Act leads to the conclusion that the jurisdiction of Civil Court
under Section 9 of the Code of Civil Procedure and under the Civil Courts
Act is ousted and the 1982 Act which is special law will prevail and as
such the Special Court will have jurisdiction in respect of the matters dealt
with thereunder. (674-D-E)
Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., (1968)
3 SCR 662 and Sanwarmal Kejriwa/ Vishwa Cooperative Housing Society
Ltd, and Ors., (1990) 2 SCC 288, referred to.
F
3. 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 G
nonetheless Civil_ Courts which follow Code of Civil Procedure and are
competent to grant the same relief which can be obtained from ordinary
-f
Civil Courts. For the purpose of taking cognizance of the case the Special
Court is required to consider the location or extent or value of the land
alleged to have been grabbed or of the substantial nature of the evil
involved or in the icterest of justice required and to give an opportunity H
656
SUPREME COURT REPORTS
[2002] I S.C.R.
A of being heard to the petitioner. (673-E-G)
4. The Special Court is a Civil Court having original as well as
,.
appellate jurisdiction having all the trappings of a Civil Court and also
Criminal Court having powers of the Court of Sessions to which the
provisions of the Code of Civil Procedure, apply. The Special Court can
B 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 possessions
of, the land grabbed and determine the ownership, title to, or lawful
possession of, the land alleged to have been grabbed whose decision will
be binding on all the person interested. More allegations ofland grabbing
c
is sufficient to invoke the jurisdiction of the Special Court either suo motu
.,_
or on application by any persons including any officer or authority. In
this view of the matter, there is no illegality in the conclusion arrived at
by the High Court in affirming the finding with regard to the jurisdiction
of the Special Court. [680-B-D)
D
5. Section 11 of the Code of Civil Procedure incorporates the
principle of resjudicata which, in short, means a matter which had already
been adjudged judicially between the same parties. It bars a Court from
trying any suit in which the matter directly and substantially in issue has
"'(
been directly and substantially in issue in a former suit between the same
..
parties in a Court and has been heard and finally decided by such Court
E which is competent to try such subsequent suit or the suit in which such
issue has been subsequently raised. Explanation IV embodies the principle
. '
of constructive res judicata and says that any matter which "might and
ought" to have been made a ground of defence or attack in such former
suit shall be deemed to have been a matter directly and substantially in
F
issue in such suit. A conjoint reading of Section 11 and Explanation IV
shows that a plea which might and ought to have been taken in the earlier
suit, shall be deemed to have been taken and decided against the persons
raising the plea in the subsequent suit. (677-F-H; 678-AJ
6. In this case the first respondent issued notice for eviction of the
G
appellant from the land on the ground that he was unauthorisedly in
occupation of the Government land. As the appellant claimed title to the
land in dispute and thus the title of the first respondent to the land in
question was disputed, the High Court observed that the State could not
,,,._
resolve the issue of title in its favour and proceed under the Land
Encroachment Act. In view of the rival claims to the land in dispute the
H High Court granted liberty to the first respondent to establish its title in
,.,
'!-
KONDA LAKSHMANA BAPUJJ v. GOVT. OF A.P.
657
the competent Civil Court. It is true that on the date of disposal of the A
Writ Appeal, the Act had come info force and that fact was not brought
-'
to the notice of the Division Bench of the High Court but there was no
..,
final adjudication on the question of rival claims of the parties to the title
of the land in dispute on merit in Writ Appeal by the Division Bench of
the High Court. Pursuant to the liberty granted to the respondent- B
Government by a Single Judge of the High Court which was confirmed
by the Division Bench a suit was in fact filed by the first respondent against
the appellant in the Court of the IV Additional Judge, City Civil Court
for declaration of title to and recovery of possession of the land in dispute.
The first respondent also invoked the jurisdiction of the Special Court
under Sections 7 and 8 of the Act by filing a petition against the appellant. c
..
Therefore, the principles of constructive res judicata, on the ground that
the fact of enforcement of the Act on September 6,1982 was not brought
to the notice of the Division Bench of the High Court at the time of disposal
of the Writ Appeal, is not available to the appellant. Further, as a statutory
right is created in favour of the State under .the Act, to eradicate a public D
mischief, it cannot be precluded from having recourse to the provisions
of the Act by operation of the principle of "might and ought" in
....
Explanation IV of Section 11 CPC when its title or interest had not been
•
finally determined by the High Court. [679-H; 680-A]
· Sha Shivaraj Gopalj"i v. Edappakath Avissa Bi and Ors. AIR., (1949) E
PC 302, held inapplicable.
Ram Kirpal Shukul v. Rup Kuari II. I.A.37 All. 269 PC and Kewal Singh
v. Lajwanti, AIR (i980) SC 161, referred to.
'
,.
7. The activity of land grabbing of any land should not only be F
...
without any lawful entitlement but should also be, inter alia with a view
to illegally taking possession of such lands. These two ingredients are found
agaiil~t the appellant. (700-El
8. Under the Act "land grabbing" is not only an actionable wrong
but also an offence and a "land grabber" is an offender punishable G
thereunder. Mere allegation of an act of land grabbing is sufficient to
invoke the jurisdiction of the Special Court. In both Sections 7 and 8 of
~
the Act the phrase 'any alleged act of land grabbing' is employed and not
~
'act of land grabbing'. 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. (680-E; 673-D-E)
H
658
SUPREME COURT REPORTS
[2002) I S.C.R.
A
9. Clause (c) of Section 2 defines the expression 'land grabbing". The
term "grabbing" is not defined in the Act. It is not a technical term or a
term of art, so it has to be understood in its ordinary common meaning.
l
[681-G-H)
B
The term "grab" has a broad meaning-to take unauthorisedly,
greedily or unfairly-and a narrow meaning of snatching forcibly or
violently or by unscrupulous means. Having regard to the object of the
Act and the various provisions employing that term, the term "grab" is
used in the Act in both its narrow as well as broad meanings. Thus
understood the ingredients of the expression "land grabbing" would
c comprise of (i) the factum of an activity of taking possession of any land
forcibly, violently, unsrupulously, unfairly or greedily without any lawful
•
entitlement; and (ii) the mensrea/intention-"with the intention of/with a
view to" (a) illegally taking possession of such lands or (b) enter into or
create illegal tenancies, lease and licences agreements or any other illegal
agreements in respect of such lands; or (c) to construct unauthorized
10 structures thereon for sale or hire; or (d) to give such lands to any person
on (I) rental or (ii) lease and licence basis for construction or (iii) use and
occupation of unauthorised structures. (681-E-F)
.;
New International Webster's Comprehensive Dictionary of the English
...
E
Language; Words and Phrases permanent edition, Vol, 18; Corpus Juris
Secundum, Vol. 38 Concise Oxford Dictionary, referred to.
Smith v. Pure Oil Co., 128 S.W. 2d 931, 933, 278 Ky. 430, referred to
~
10. A combined reading of clauses (d) and (e) of Section 2 would
suggest that to bring a person within the meaning of the expression "land
F grabber" it must be shown that (i) (a) he has taken unauthorisedly,
unfairly, greedily, snatched forcibly, violently or unscrupulously any land
belonging to Government or a local authority, a religious or charitable
institution or endowment, including a wakf, or any other private person;
(b) without any lawful entitlement; and (c) with a view to illegally taking
G tenancies or lease and licences agreements or any other illegal agreements
in respect of such lands or to construct unauthorized structures thereon
for sale or hire, or given such lands to any person on rental or lease and
--
licence basis for construction, or use and occupation of unauthorized
...
structures; or (ii) he has given financial aid to any persons for taking illegal
possession of lands or for construction of unauthorized structures thereon;
H or (iii) he is collecting or attempting to collect from any occupiers of such
1
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P.
659
lands rent, compensation and other charges by criminal intimation; or (iv) A
he is abetting the doing of any of the above-mentioned acts; or (v) that he
is the successor-in-interest of any such persons. [683-C-F)
11. A plain reading of Section 10 of1982 Act would indicate that in
any proceedings under this Act-(i) where a land is alleged to have been
grabbed; and (ii) such land is prima facie proved to be the land owned by B
the Government or by a private person, the Special Court/Special Tribunal
shall presume that the person who is alleged to have grabbed the land is
a land grabber. When the presumption under Section 10 is drawn by the
Special Court/Special Tribunal, the burden or proving that the land has
~
not been grabbed by him is cast on the alleged land grabber. In view of C
the meaning of the words "shall presume" in Section 4 of the Indian
Evidence Act, the affect of raising resumption under Section 10 of the Act
would be that unless the alleged land grabber disproves that the land had
been grabbed by him, the Special Court/Special Tribunal shall regard that
the land in question, has been grabbed by the alleged land grabber.
(674-H; 675-A-BJ D
12. The requisite intention which is an important ingredient of the
land grabber, though not stated specifically, can be inferred by necessary
implication from the averments in the petition and the plaint and the
deposition of witness like any other fact. If a person comes into occupation E
of any Government land under the guise of a perpetual lease executed by
an unauthorized person having not title to or interest in the land it cannot
but be with a view to illegally taking possession of such land. (698-B)
13. From evidence on record, it is clear that the land in dispute was
not part of Maqta land. That land remained as Sarfekhas land and on F
merger of Sarfekhas in Diwani on February S, 1949, it became Government
land. Even assuming that it was part of regranted lnam land, on coming
into force of the lnam Act, it vested in the Government, Admittedly, neither
the lnamdar nor the appellant obtained occupancy certificate in respect
I of the land in dispute\under lnams Abolition Act. In support of the G
allegations in the petition and in the plaint, it has been categorically stated
that the appellant is a land grabber. Therefore, there is no hesitation in
endorsing the finding that 'A' had no title to the land in dispute and
consequently the appellant acquired no title to it. Thus it followed that the
appellant had unauthorisedly come into possession of the land in dispute
of the first respondent without lawful entitlement. [688-F-G]
H
660
SUPREME COURT REPORTS
[2002] I S.C.R.
A
14. It is generally true that in the absence of necessary pleadings in
regard to the ingredients of the definition of "land grabbing" no finding
can validly be recorded on the basis of the evidence even if such evidence
is brought on record. However, it is a settled position that if the parties
have understood the pleadings of each other correctly, an issue was also
B framed by the Court, the parties led evidence in support of their respective
cases, then the absence of a specific plea would make no difference. In
the instant case, the appellant has never pleaded before the Special Court
that necessary pleading in regard to the requirements of land grabbing is
lacking in the case. On the other hand, he understood the averments in
the petition read with the plaint correctly as allegations of land grabbing
C as can be seen from his affidavit containing objections to the Gazette
Notification dated April 1, 1992. (699-C-D; 700-A-B)
Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors.,
[1958) SCR 895; Nedumri Kameswaramma v. Sampatt Subha Rao, (1963) 2
SCR 208; Kali Prasad (Dead) by Lrs. and Ors. v. Mis. Bharat Coking Coal
D Ltd. & Ors., (1989) Suppl. 1 SCC 628 and Sardul Singh v. Pritam Singh and
Ors., (1999) 3 SCC 522, referred to.
15. The title of the first respondent to the land in dispute was upheld
de hors the weakness in the title of the appellant. On a careful perusal of
E the judgment of the Special Court on the question of title of the first
respondent and that of the appellant and his lessor-Inamdar, it is clear
that neither any relevant material was excluded from consideration nor
any irrelevant material was relied upon by the Special Court in recording
its finding. There was, therefore, no scope for the High Court to interfere
with those findings. The High Court committed no error of law in not
F interfering with the findings of the Special Court in regard to the title of
the first respondent and absence of title in the appellant to the land in
dispute. No interference is warranted by this Court in this appeal filed
under Article 136 of the Constitution of India. [689-C-E)
G
Omar Salay Moammed Sail v. Commissioner of Income-tax, Madras,
AIR (1959) SC 1238 and Mehar Singh and Ors. v. Shriomani Gurudwara
Prabandhak Committee, 120001 2 SCC 97, referred to.
16. In regard to the ingredients of the expression 'land grabber', it
is only when a person has lawful entitlement to the land alleged to be
H grabbed that he cannot be brought within the mischief of the said
,.
KONDA LA KS HM ANA BAPUJI v. GOVT. OF A.P.
661
expression. A mere prima facie bona fide claim to the land alleged to be A
grabbed by such a person, cannot avert being roped in within the ambit
of the expression 'land grabber'. What is germane is lawful entitlement
to and not a mere prima facie bona fide claim to the land alleged to be
grabbed. Therefore, the observation of the Division Bench of the High
Court in 'the Writ Appeal that the appellant can be taken to have prima
facie bona fide claim to the land in dispute which was relevant for the said B
Land Encroachment Act cannot be called in aid as a substitute for lawful
entitlement to the land alleged to be grabbed, which alone is relevant under
the Act. (686-B-D)
17. A person claiming title by prescription must show that he has C
been in possession of the land for the statutory period which is adequate
in continuity in publicity and in extent with the animus of holding the land
adverse to the true owner. (694-F)
Balkrishan v. Satyaprakash & Ors., JT (2001) 2 SC 357 and S.M Karim
v. Mst. Bibi Sakina, AIR (1964) SC 1254, referred to.
D
18. The question ofa person perfecting the title by adverse possession
is a mixed question of law and fact. The principle of law in regard to
adverse possession is firmly established. It is a well-settled proposition that
mere possession of the land, however long it may be, would not ripe into
possessory title unless the possessor has 'animus p,ossidendi' to hold the E
land adverse to the title of the true owner. It is true that assertion of title
to the land in dispute by the possessor would, in an appropriate case, be
sufficient indication of the animus possidendi to hold adverse to the title
of the true owner. But such an assertion of title must be clear and
unequivocal though it need not be addressed to the real owner. For
reckoning the statutory period to perfect title by prescription both the F
possession as well as the animus possidendi must be shown to exist. Where,
however, at the commencement of the possession there is no animus
possidendi, the period for the purpose of reckoning adverse possession will
commence from the date when both the actual possession and assertion
of title by the possessor are shown to exist. The length of possession to G
perfect title by adverse possession as against the Government is 30 years.
(690-C-E)
19. The possession of the disputed land from the date of Ex. B-39,
1954, till the date of the filing of the written statement in 1957 cannot be
treated as adverse because there was no animus possidendi during the said H
662
SUPREME COURT REPORTS
[2002) I S.C.R.
A period. Before the date of filing the written statement appellant never
claimed title to the land in dispute adverse to the State .. On the other hand,
he paid siwai jamabandi and applied for occupation of rights. (695-D-E)
20. There can be no doubt that passing of adverse order against the
B
appellant would not cause any interruption in has possession. So also filing
of application before statutory authority under lnams Abolition Act for
occupancy rights ca!lses no interruption in the continuity of possession of
the appellant but it does abrogate his animus to hold the land in derogation
of the title of the State and breaks the chain of continuity of the animus.
Further there is nothing on record to show that his lessor 'A' ever claimed
c the land in dispute adverse to the State. On these facts there is no scope
to invoke the principle of tacking on the possession of the lnamdar or
presumption of continuity of possession backward. [696-A; 695-G-H)
21. The appellant neither proved factum of possession of the land in
dispute for period of30 years nor succeeded in showing that he·had animus
D possidendi for the whole statutory period. Therefore, this Court cannot but
maintain the confirming view of the High Court that the appellant failed
to acquire title of the land in dispute by adverse possession. [696-BC)
22. The lessee of a Maqtedar (the Inamdar) cannot acquire title to
E the demised land by adverse possession either as against the State or the
Maqtedar (Inamdar) so long as his possession under the lease continues.
[696-C)
23. The appellant's submission that though (Ex. B-40) perpetual lease
agreement was registered on December 12, 1957 yet it would relate back
F to the date of (Ex. B-39) 28.11.1954 which would be the date of
commencement of possession, cannot be accepted. (Ex. B-39), unregistered
perpetual lease agreement dated November 28, 1954 was not registered
subsequently. The perpetual lease deed dated 11.12.1957 is a different
document which was registered on 12.12.1957. Therefore, it would relate
back to the date of its execution i.e. 11.12.1957 on its subsequent
G registration on 12.12.1957 but not on the date of execution of Ex. B-39
i.e. 28.11.1954. [692-C; 692-G]
Thakur Kishan Singh (Dead) v. Arvind Kumar, [1994] 6 SCC 591,
disti'1guished.
H.
Ram Saran Tall v. Mst. Domini Kuer, [1962) 2 SCR 474 and Nanda
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KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.]
663
Ba/labh Gururani v. Smt. Maqbol Begum. (1980) 3 SCC 346, referred to.
A
24. Having regard to the absence of any material on record, all the
circumstances and the probabilities of the case, it is hard to believe that
at any time before or on the date of execution of the unregistered
agreement for perpetual lease the lessor of the appellant who had no title
to or interest in the land which was directed to be under the supervision B
of the GAD, was in possession of the land in dispute which was lying
vacant. (688-H; 689-A)
25. The principle of lost grant is a presumption which arises in cases
of immemorial user. It has its origin from the long possession and exercise
of right by user of an easement with the acquiescence of the owner that C
there must have been originally a grant to the claimant which had been
lost. The presumption of lost grant is extended in favour of possessor of
land for a considerably long period when such user is found to be in open
assertion of title, exclusive and uninterrupted. However, when the use is
explainable, the presumption cannot be called in aid. In this case the D
appellant traces his possession from 1954 under an unregistered perpetual
lease from the erstwhile lnamdar (Maqtedar). Therefore, the presumption
of lost grant will not be available to him. 1696-E-F; 697-D)
Monohar Das Mohanta v. Charu Chandra Pal & Ors .. AIR (1955) SC
228, held inapplicable.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2063 of
1999.
From the Judgment and Order dated 27 .10.98 of the Andhra Pradesh
High Court in W.P. No. 5332 uf 1993.
K. Parasaran, P. Niroop, Pavan Kumar, P.R. Tiwari and P. Vinay Kumar
for the Appellant.
Altaf Ahmad, Additional Solicitor General, Ms. K. Amreshwari, G.
Prabhakar and K. Ram Kumar, (NP) for the Respondents.
The Judgment of the Court was delivered by
F
G
SYED SHAH MOHAMMED QUADRI, J. This appeal, by special
leave, is from the Judgment of the Division Bench of the High Court of
Judicature, Andhra Pradesh at Hyderabad dated October 27, 1998 dismissing
Writ Petition No. 5332 of 1993, filed by the appellant assailing the order of H
664
SUPREME COURT REPORTS
(2002] 1 S.C.R. •
A the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 (for
short, 'the Act') in L.G.C. No. 61 of 1990 dated April 16, 1993. The Special
Court had upheld the claim of the first respondent (the State of Andhra
Pradesh represented by its Chief Secretary) that the appellant was a land
grabber of land of an extent of 2 acres 06 guntas, comprised in Survey Nos.
9/15 Paiki, 9/16 and 9/17 of Khairathabad Village, Golconda Manda!,
B Hyderabad District (for short, 'the land in dispute') and directed the appellant
to restore possession of that land to the first respondent in terms of the
decree.
To comprehend the controversy in the appeal it would be appropriate
C to set out the relevant facts. The appellant traces his title to the land in
dispute under an unregistered agreement for perpetual lease executed by one
of the successors of the Inamdar, Mohd. Noorudin Asrari, in respect of the
Inam land in Survey Nos. 9115, 9116, 9/17 and 9/18, on November 28, 1954
(Ex. B-39). Later the said Asrari executed a registered perpetual lease deed
in favour of the appellant on December 11, 1957 (a certified copy is marked
D as Ex. B-40). Soon thereafter one Rasheed Shahpurji Chenoy had set up a
rival claim to the land in dispute by filing Original Suit No. 13 of 1958, in
the Court of the Additional Chief Judge, City Civil Court, Hyderabad, against
the first respondent, the appellant and others praying for declaration of title
to and recovery of possession of the said land. In that suit the learned
E Additional Chief Judge passed an interim order directing the parties to maintain
status quo in regard to the land in dispute. However, the appellant having
sought permission of the Court, constructed a building "Jala Drushyam" on
the land in dispute on his giving an undertaking that in the event of the
plaintiff therein succeeding in the suit, the building would be vacated by him,
leaving the structures intact, without claiming any compensation. On November
,p
11, 1975 the said suit of Rasheed Shahpurji Chenoy was dismissed recording
the finding that he did not have any title to the suit land which was the
Government land (Ex. A-1).
It appears that as a follow up action of the minutes of the committee
G held in the Chamber of the Chief Secretary to the Government of Andhra
Pradesh, the Deputy Secretary, G.A.D. (O.P.LLL) by his letter dated September
14, 1959 (Ex. B-35) asked the Collector, inter alia, to declare the land situated
between the Secretariat and the Fisheries Department (which includes the
land in dispute) as the Government land. Thereafter on October 5, 1959, the
Collector passed order declaring Survey No. 9/15 paiki, 9/16, 9117, 9118 and
H 9119 admeasuring 19 acres 29 guntas as Government Land and informed the
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KONDA LAKSHMANA BAPUJI v. GOVT, OF A.P. [S.S.M. QUADRI, J.l
665
Chief Secretary accordingly on October 20, 1959 (Ex. A-14 and Ex. B-34). A
On February 28, 1976, the Tehsildar, Hyderabad, Urban Taluk, noticing
that the appellant was in unauthorised occupation of Government land, issued
eviction notice calling upon him to vacate the land comprised in Survey No.
9115 paiki, 9/16 & 9/17 admeasuring 2 acres 28 guntas (Ex. B-38). Pursuant
to the said notice, an order of eviction was passed against the appellant on B
May 28, 1977 (Ex. B-58). That order was challenged by the appellant in Writ
Petition No. 1414 of 1977 in the High Court of Judicature, Andhra Pradesh
at Hyderabad. A learned single Judge of the High Court allowed the writ
petition on January 20, 1978 (Ex. A-3). Questioning that order, the first
respondent filed W.A. No. 61 of 1978 before the Division Bench. It would C
be relevant to note here that the Act came into force on September 6, 1982
but that fact was not brought to the notice of the Division Bench at the
hearing of the Writ Appeal. The Division Bench opined that there was bona
fide dispute of title to the land in dispute between the appellant and the
Government which must be adjudicated upon by the ordinary Court of law
and that the Government could not decide unilaterally in its own favour and D
resort to summary eviction proceedings under the Andhra Pradesh Land
Encroachment Act, 1905 (for short, 'the Land Encroachment Act') and
dismissed the Writ Appeal on November 14, 1983 (Ex. A-4). The appellant
again filed Writ Petitbn 15724 of 1984 apprehending his dispossession from
the land in dispute. On June 16, 1986, a learned Single Judge of the High E
Court disposed of the Writ Petition taking note of the observations of the
Division Bench in the said Writ Appeal and the fact that the first respondent
had filed, O.S. No. 1497 of 1985 in the Court of the IV Additional Judge,
City Civil Court, Hyderabad for declaration of title and recovery of possession
of land in dispute on November 25, 1985.
In view of the provisions of sub-section (8) of Section 8 of the Act, the
said suit of the first respondent was transferred to the Special Court from the
Court of the IV Additional Judge. Though the order of the transfer of the suit
F
was challenged by the appellant in the High Court by filing civil revision
petition, it was later dismissed as not pressed. Be that as it may, the first
respondent filed an application invoking jurisdiction of Special Court for G
taking cognizance of the case and prayed that the plaint in the said suit be
-f.
read as part of the application. Thereupon, the Special Court issued notification
for consideration of objections under the first proviso to sub-section (6) of
Section 8 of the Act in the Andhra Pradesh Gazette on April I, 1992. The
Special Court, after considering the objections filed by the appellant taking H
666
SUPREME COURT REPORTS
(2002] I S.C.R.
A cognizance of the case, LGC No. 61 of 1990 (referred to in this judgment as
'the case'), tried the case as a civil suit. The parties were given opportunity
to lead evidence both oral and documentary. The first respondent examined
P.W. I and marked Exs.A-1 to A-48; the appellant examined himself as R.W.
I and marked Exs. B-1 to B-65. By consent of the parties Exs. X-1 to X-4
B (copies of various plans) were also marked. After considering the evidence
adduced by both the sides the Special Court decreed the case of the first
respondent on April 16, 1993 which was upheld by the Division Bench of the
High Court in the said W.P. No. 5332 of 1993 (filed by the appellant) by its
judgment and order dated October 27, 1998 which is under'challenge in this
appeal.
c
Three main contentions were elaborated by Mr. K. Parasaran, the learned
senior counsel appearing for the appellant. His first contention is that the
appellant could not be held to be a land grabber as his possession was alleged
to be permissive by the first respondent and he was found to have primafacie
bona fide claim to the property in dispute by the High Court in Writ Petition
D No. 1414 of 1977 and Writ Appeal No. 61 of 1978. The second contention
is that the Special Court had no jurisdiction to try the case and the third
contention is that, in any event, the appellant had perfected his title to the
land in dispute by adverse possession.
E
Mr.