Andhra HC (Pre-Telangana)
Yakari Pochaiah (Dead) Yakari ... vs State Of A.P. And Ors. on 25 October, 2002
Equivalent citations: 2003(1)ALD181
JUDGMENT D.S.M, J.
1. The petitioners, who are respondents in L.G.C. No. 145 of 1994, filed the writ petition challenging the decree and judgement in L.G.C. No. 145 of 1994 in directing the petitioners/respondents to deliver possession of the application schedule properties to the applicants within a period of two months and to pay costs of Rs, 5000/-.
2. The brief facts of the case are as follows:
State of A.P. and HUDA represented by its Secretary filed L.G.C 145 of 1994 bef ore the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad (for short 'the Special Court') to declare the respondents as land grabbers and dire ct them to vacate and deliver possession of application schedule property and also to pay a sum of Rs. 90,00,000/- towards compensation for wrongful possession and Rs. 98,00,000/- towards mesne profits. The application schedule property is in an extent of Ac.20.00 of land situated within the limits of Khairatabad village of Golconda Mandal which forms part of Hussainsagar tank covered by S. No. 9. In the survey conducted in 1923 Fasli, the land was classified in S. No. 9 and is shown as Hussainsagar tank. The village records are prepared on the basis of setwari. The respondents, who are related to each other, grabbed the schedule property on the basis that the application schedule property is covered by Mazi S. Nos. 37 and 39 and creating false and fictitious records. The then Tahasildar, Golconda Mandal noticed the same and made representation to the competent authority-Personal Assistant to the Collector. The Personal Assistant to the Collector entertained the said application and after thorough enquiry passed an order directing deletion of Mazi S. Nos. 37 and 39 from the revenue records. The petitioners further contended that the respondents fabricated the records with the help of patwari with a view to grab the property even though they have no right title or possession. Questioning the orders of the Personal Assistant to the Collector, a revision was filed before the Government and as no stay was granted, they filed writ petition and obtained an interim orders. Subsequently, the writ petitioners/respondents filed O.S. No. 1624 of 1991 on the file of the VII Assistant Judge, City Civil Court, Hyderabad and obtained temporary injunction. The Government dismissed the revision and the property was handed over to HUDA for the purpose of Budha Purnima project and hence HUDA is arrayed as 2nd petitioner. Most of the application schedule land is vacant and the respondents are trying to raise crops thereon and obstructing the laying of Necklace road in execution of the Budha Purnima project. Hence the application.
3. The 2nd respondent filed counter-affidavit, which was adopted by other respondents. The respondents contended that the application schedule property is covered by Mazi S. No. 37 in an extent of Ac. 3.00 and in an extent of Ac. 17.00 in Mazi S. No. 39 in Khairathabad village which is the subject matter of the suit. The respondents further contended that the application schedule property is ancestral property of the respondents and they have been in lawful possession for more than 70 years and the said property is recorded as private patta land which was recognized even during the Nizam Government, as reflected in the revenue records. Only after issue of G.O for Budha Purnima project, the Tahasildar Golconda Mandal started the dispute questioning their right and title and issued notices. The Tahasildar filed an application before the Personal Assistant to the Collector who passed an order deleting the Mazi survey numbers without hearing the respondents and they were not asked to produce setwari, faisal patti, vasool baki and pahanies as well as initial survey map. The respondents further contended that the description of the property is incorrect and the said property does not form part of the Hussainsagar tank. The respondents have been cultivating the land with the use of water from two irrigational wells and they also use Hussainsagar water through a canal by lifting water with piccotas. The Tahasildar having recognized their right title, ownership and possession granted ryotwari pass book on 28.5.1980 after due enquiry. The Mazi S. Nos. 37 and 39 have been in existence for over 70 years as described in the revenue records and the order passed by the Personal Assistant to the Collector is illegal and not maintainable.
4. On the above pleadings, the Special Court framed and settled the following issues for trial.
1. Whether the first applicant is the owner of the application schedule property?
2. Whether the rival title set up by the respondents is true and binds the applicants?
3. In any event, whether the respondents perfected title to the schedule property by adverse possession?
4. To what relief?
5. Additional issues:
1. Whether the respondents are land grabbers within the meaning of the A.P. Act XII of 1982?
2. In any event, whether the applicant is estopped from contending that the schedule property is Government property?
6. On behalf of the applicants, the Mandal Revenue Officer is examined as Pw-1 and through him Ex.A1 to A30 were marked. On behalf of the respondents 10th respondent was examined as Rw-1 and one Yousuf Khan, a railway employee, was examined as Rw-2 and Exs.B-1 to B-121 were marked. After appreciating the oral and documentary evidence, the Special Court found all the issues in favour of the applicants and declared the respondents as land grabbers and directed the respondents to deliver possession of the application schedule property within two months.
7. Aggrieved against the said decree and judgement in L.G.C. No. 145 of 1994 dated 5.12.2001, the petitioners filed the writ petition assailing the judgement of the Special Court praying for issuance of writ of Certiorari or any other writ or a direction to quash the judgement of the Special Court. The 2nd petitioner herein, Y. Satyanarayana, filed an affidavit in support of the writ petition contending that the land in Mazi S. No. 39 to an extent of Ac. 17.00 and the land in S. No. 37 to an extent of Ac. 3.00 are agricultural lands and the said land is ancestral property and it originally belonged to one Hazari Kasi. After the death of Hazari Kasi, his successors have been in continuous possession and enjoyment of the application schedule property. The land in Mazi S.No. 37 in an extent of Ac. 3.00 has been in possession and enjoyment of their family as tenants of Smt. Venkatamma Kulkarni. They also sunk two wells in the suit property and an oil engine was installed to bale out the water. The revenue records disclose that the two Mazi survey numbers are patta lands and land revenue was collected. The writ petitioners have been in continuous possession and enjoyment of the disputed property by paying land revenue and the respondents have no right or title to the disputed property. The Special Court committed error in coming to the conclusion that Mazi S.Nos 37 and 39 do not exist and the revenue records have been manipulated in collusion with the patwari. The Special Court committed an error and failed to appreciate the recitals in the revenue records. The Special Court failed to appreciate that the writ petitioners were paying land revenue and the Tahasildar issued patta pass books under Record of Rights Act. The Special Court committed an error in not properly appreciating the setwari, vasool baki, inam register, original survey map of Khairatabad village etc. The Special Court committed an error in declaring the writ petitioners-respondents as land grabbers and directing them to deliver vacant possession. For the above said reasons, as there is an error apparent on the face of record, the decree and judgement of the Special Court may be set aside.
8. On behalf of the 2nd respondent M. Ravinder Reddy, Secretary of HUDA filed counter-affidavit denying the averments contained in the affidavit filed in support of the writ petition. It was contended that the then Tahasildar handed over the disputed land in S.No. 9 of Khairatabad village, Golconda Mandal along with other lands for development of Buddapurnima project to the 2nd respondent. The writ petitioners are claiming ownership over the disputed land basing on the entries in the village pahani in Mazi S.Nos. 37 and 39. The survey was conducted for Khairatabad village for the first time in 1324 Fasli as per the provisions of A.P. (Telangana Area) Land Revenue Act and Hussainsagar tank falls in S.No. 9 and the extent is 1375.05 guntas. The said tank completely vests with the government. S.No.9 is correlated to Town S.No. 5, Block-B, Ward No.80. Some fictitious entries came to the notice of the Tahasildar, Golconda and an application was filed before the Collector for cancellation and deletion of the entries i.e., Mazi S.Nos. 37 and 39. The said application was enquired and after following the procedure, the entries were deleted. After dismissal of the writ petition in W.P.No. 8511 of 1984, the petitioners filed O.S.No. 1624 of 1991. The State filed L.G.C.No. 145 of 1994 against the writ petitioners and after due enquiry the said petition was allowed. The writ petition is filed on untenable grounds. The writ petitioners are claiming ownership under the guise of Mazi survey numbers having grabbed the said lands. The averments that the land grabbing Court has no jurisdiction to entertain the application is not correct. The Land Grabbing Court after appreciating all the documents filed on both sides and after hearing rightly allowed the petition holding that the writ petitioners-respondents are land grabbers and consequently they are liable to be evicted. It is a well considered order and therefore the writ does not lie. For the above said reasons, the writ petition may be dismissed.
Criminal Procedure Code (CrPC), 1908. Now the following points would arise for consideration.
1. Whether the Special Court had no jurisdiction to entertain the application?
2. Whether the Special Court committed an error apparent on the face of record in coming to the conclusion that the writ petitioners are land grabbers and thereby directed them to deliver vacant possession?
3. Whether there are just and tenable grounds calling for interference by this Court?
10. Points 1 to 3:- State of Andhra Pradesh and HUDA represented by its Secretary filed L.G.C.No. 145 of 1994 against the respondents and after appreciating the entire material filed before the Special Court, the Special Court allowed the application and recorded a finding that the respondents are land grabbers and directed them to deliver possession of the application schedule properties to the petitioners. As against the said orders, the writ petitioners filed the present writ challenging the impugned orders of the Special Court.
11. The learned Advocate appearing for the writ petitioners Sri K.V. Reddy contended that the Special Court has no jurisdiction to entertain the application since the writ petitioners are not land grabbers. It was further contended that the writ petitioners having been in possession and enjoyment of the disputed property for more than the statutory period perfected their right and title by adverse possession. Since they have been in possession for a long time, they cannot be termed as land grabbers within the definition of the A.P. Land Grabbing (Prohibition) Act (for short 'the Act'). The Special Court failed to appreciate the documents filed by the writ petitioners and came to an erroneous conclusion. This is an error apparent on the face of record and hence the writ petitioners invoked the jurisdiction of this Court under Article 226 of the Constitution of India. The writ petitioners filed revenue records evidencing their title and it is for the government to establish its title by way of rebuttal. The learned Advocate relied on a decision in Commissioner of Survey, Settlements & Land Records v. G. Padmavathi (1) wherein it is held as follows:
"A person whose name finds a place in the revenue records will have a right to assert that he is entitled to make a claim as owner unless the same is negatived by rebuttal evidence which the State failed to adduce in the case on hand. It is also settled that a person who asserts that he is the owner of a property shall establish the same by resorting to civil suit which the State has not chosen for the reasons best known to it. The petitioners are right in their contention that they have a right to seek exemption under Section 20 of the Act and they are also right in their contention that the initiation of proceedings which were challenged in the writ petition as bad."
12. The writ petitioners have filed documents evidencing their possession fore more than the statutory period and thereby they perfected their title by adverse possession prior to filing of the application. The Special Court committed error in coming to the conclusion that the writ petitioners, who are respondents in the LGC, are land grabbers, which is apparent on the face of record, which requires interference by this Court in the light of the following decisions in Soham Modi v. Special Court under A.P. Land Grabbing (Prohibition )Act (2), State of Rajasthan v. Harphool Singh (3) and Goundla Venkaiah v. Mandal Revenue Officer, R.R District (4). For the above said reasons, the Advocate for the writ petitioners contended that the order of the Special Court may be set aside.
13. The learned Government Pleader for assignment contended that the Government is the owner of the land and there is the evidence that the writ petitioners were paying cess for unauthorized occupation and therefore the possession was only permissive and payment of penalty amounted to acceptance of the title of the government and therefore the Special Court rightly held that the writ petitioners are the land grabbers. The learned G.P relied on a decision in Harikrishna Patel v. State of A.P (5). The learned G.P further contended that the entries in revenue records were not genuine and they were manipulated and obtained by fraudulent means and therefore they cannot be relied upon. There cannot be any presumption of correctness of such documents which are obtained by fraud and forgery. For this proposition, the G.P relied on a decision in Vishwa Vijay Bharathi v. Fakhrul Hassan (6) wherein it was held that the only question before the High Court was whether entries on which the respondents relied on were genuine or fraudulent. That is a question of fact and that the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the District Court. The learned G.P further contended that mere allegation of an act of land grabbing is sufficient to invoke the jurisdiction of the Special Court. He relied on a decision in Konda Lakshamana Bapuji v. Govt. of A.P (7). The learned G.P further contended that the Special Court considered all the relevant documents and rightly came to the conclusion that the writ petitioners are land grabbers and they have no lawful entitlement to the land in question and that therefore there are no tenable grounds for interference by this Court.
14. State of A.P and HUDA initiated proceedings under the Act since the respondents are in possession of the government land without lawful entitlement. The contention of the writ petitioners before the land grabbing Court is that the Special Court had no jurisdiction to entertain the application. Section 2 (d) of the Act defines the land grabber as follows;
" 'land grabber' means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking alleged 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."
15. Section 2 (e) of the Act describes the land grabbing as follows:
" 'land grabbing' means 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 license agreements or any other illegal agreements in respect of such lands, or to construct unauthorized structures thereon for sale or hire or give such lands to any person on rental or lease and license basis for construction or use and occupation, of unauthorized structures; and the term "to grab land" shall be construed accordingly."
16. Now it is necessary to look at the powers of the Special Court to appreciate whether the Special Court had power to take cognizance of the case or not. The powers are conferred under Section 8 of the Act, which reads as under:
"(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 deem fit;
(1-A) The Special Court shall, for the purpose of taking cognizance of the case, 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 interest of justice required or any other relevant matter.
Provided that the Special Court shall not take cognizance of any such case without hearing the petitioner:
(2) Notwithstanding anything in the Code of Civil Procedure,1908 (Central Act 5 of 1980) (the Code of Criminal Procedure, 1973) or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of questions of title and ownership to, or lawful possession of any land grabbed under this Act, shall, subject to the provisions of this Act be triable in the Special Court and the decision of the Special Court is final."
17. The averments contained in the application filed by the petitioners in LGC No. 145 of 1994 would disclose that the respondents grabbed the disputed land and they are in illegal possession. In view of the definitions under the Act as cited above, the Special Court has got jurisdiction to entertain the application and the Civil Court cannot entertain any suit and the decision of the Special Court is final. For the above said reasons, we are of the opinion that the argument of the writ petitioners that the Special Court had no jurisdiction to entertain the application cannot be sustained. The writ petitioners contended that they are in lawful possession of the disputed property continuously and they have been in continuous possession for more that the statutory period and therefore they perfected their title by adverse possession. The plea of adverse possession cannot be sustained in view of the fact that it is the definite case of the writ petitioners that their predecessors in title have purchased the property from the lawful owners and therefore they are in possession of the property legitimately. If the writ petitioners claim ownership rights, they are estopped from taking the plea of adverse possession. If the plea of adverse possession is taken into consideration, they should trace the ownership of the property. Unless they contend that it is the Government property and that they have been in possession of the property for more than the statutory period, the plea of adverse possession cannot be sustained.
18. The judgement delivered in LGC 145 of 1994 dated 5.12.2001 of the Special Court is assailed in this writ petition and the writ petitioners prayed for writ of Ce rtiorari. There is no dispute with regard to the identity of the property as the writ petitioners admitted that the plaint schedule property in O.S.No. 1624 of 1991 and the application schedule property in LGC 145 of 1994 are one and the same. The writ petitioners contended that the property is in Mazi S.Nos. 37 and 39 whereas the contention of the State is that the property is in S.No. 9 which fo rmed part of Hussainsagar Shikan Talab and correlated to T.S.No. 5/P, Block-B, Ward No.80. The writ petitioners contended that the suit property originally belo nged to one Venkatamma Kulkarni and Hazari Kasi respectively. There are entries in revenue records with regard to Mazi S.Nos. 37 and 39. The Government contende d that the patwari by playing fraud made false entries and the writ petitioners cannot take advantage of such false entries. The Government correlated on the survey map, which was prepared in 1324 Fasli, and the said map is marked as Ex.A12. The original of Ex.A12 was sent for from the Central Survey Office and the endorsement on the said map shows that it was redrawn and maintained by the Central Survey Office as the original was torn and could not be preserved. The Special Court summoned the said map from the Central Survey Office and compared with Ex.
A12, which was identical, and the Special Court relied on Ex.A12. The writ petit ioners could not examine their predecessors in title or produce any sale deed wi th regard to their purchase. The Special Court recorded a finding as to how and from where the Mazi survey numbers came into records and who gave those Mazi sur vey numbers was not known. Rw-1 admitted that he had no record to show that Nars imha had purchased a portion of the application schedule property. The writ peti tioners relied on the entries in the revenue records with reference to Mazi S.No s. 37 and 39. The Tahasildar Golconda initiated proceedings before the P.A to Co llector, Hyderabad District to delete the entries with regard to the Mazi S.Nos.
37 and 39. The P.A to Collector after due enquiry deleted those entries and his proceedings were also marked. The Tahasildar also initiated proceedings under the Record of Rights Act for deleting the Mazi S.Nos. 37 and 39. The writ petitioners relied on public documents such as Faisal patti, pahanies, land revenue rec eipts and rytwari pass books to prove their right title and possession to the disputed properties. In column No.12 of the faisal patti marked as Ex.B64, it is mentioned as Sivai Jamabandi. The land revenue receipts are also marked as Ex.B7, B9 and B11. The Special Court recorded a finding that the title of Narsimha in respect of Mazi S.No. 37 was not established and the entries in the revenue records do not establish title of either Hazari Kasi or Narsimha to the Mazi S.Nos. 39 and 37 respectively. The Special Court also considered the rytwari passbook produced by the writ petitioners. Sivai Jamabandi means a penalty collected for wrongful/unauthorized cultivation. By paying Sivai Jamabandi, the writ petitioners recognized the title of the person to whom the penalty was paid. The Special Court relied on Ex. A12 issued by Central Survey Office. The Special Court discussed all the material placed before it by both parties and came to the conclusion that the applicant/State is the owner of the disputed property and the respondents had no title. It was further held that the revenue records were manipulated by inserting the entries of Mazi S.Nos. 37 and 39. The Special Court also recorded a finding that the person who entered into possession should have animus to hold the property adverse to the real owner, which is not the contention of the writ petitioners. The disputed land is described as a sarkari in all the pahanies produced by them. The cultivation shown by them is also very negligible. The Special Court after considering the entire material came to the conclusion that the writ petitioners failed to prove that they perfected their title by adverse possession and therefore the writ petitioners were held to be land grabbers and thereby directed them to deliver vacant possession. The writ petitioners relied on the entries made in the revenue records to prove that they are the owners. No doubt, there is presumption with regard to the entries in the revenue records, but when such entries were obtained by playing fraud, it cannot be relied upon as decided in Viswa Vijay Bharathi's case (6 supra).
19. The jurisdiction to issue a writ of Certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limi tation necessarily means that the findings of fact reached by the inferior Court or Tribunal is a result of appreciation of evidence, which cannot be reopened or questioned in writ proceedings. An error of law, which is apparent on the face of the record, can be corrected by a writ but not an error of fact however grave it may appear to be. The adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a Writ Court. It is within these limits that the jurisdiction conferred on the High Court under Article 226 of the Constitution to issue a Writ of Certiorari can be legitimately exercised. What can be corrected by a Writ has to be an error of law, but it must be such error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court, or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or something in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of Certiorari. We have carefully perused the judgement of the Special Court on the question of jurisdiction, right title and possession of the writ petitioners and the documents produced by both sides and we are satisfied that no material was excluded from considering or any irrelevant material relied on by the Special Court in recording its finding, which requires interference by this Court. In our view the Special Court has not committed any error of law so as to interfere with its finding. The Special Court considered all the material placed before it and it is a well considered judgement. There are no tenable grounds to interfere with the findings of the Special Court. There are no merits in the writ petition and accordingly the writ petition is liable to be dismissed.
20. In the result, the writ petition is dismissed. No order as to costs.