ORDER
T. Ch. Surya Rao, J.
1. Indeed a common order was dictated in open Court after having heard the learned senior counsel appearing for the writ petitioners and the learned Counsel appearing for the respondents was absent. The order proceeded only on jurisdictional issue. But it was not transcribed and signed. Some time after the order was dictated in open Court, the learned Counsel on record representing the respondents appeared. At his request, the matters were directed to be called under the caption “For being mentioned” on the next date. When the matter thus appeared under that caption, both the learned Counsel were heard again afresh. After having heard them at some length on the jurisdictional issue, it was felt expedient to hear the arguments on merits and we decided to recall the earlier order. The matters were accordingly adjourned. Both the learned Counsel submitted written arguments. The learned Counsel for the first respondent by name Sri Rakesh Sanghi, who submitted written arguments, also again submitted additional written arguments. The oral arguments addressed on either side are limited on the point of jurisdiction albeit the written arguments submitted on either side cover the merits of the case also.
2. Writ Petition Nos. 21300/1999 and 21301/1999 have been directed against that part of the common order passed by the learned Special Court in LG.C. Nos. 115/1995 and 116/1995. Writ Petition No. 26557/1999 was directed against that part of the common order in L.G.C. No. 258/1995. In fact, the common order dated 12-07-1999 passed by the learned Special Court under the A.P. Land Grabbing (Prohibition) Act covers L.G.C. Nos. 114/1995 to 116/1995,258/1995, 97/1996 and 65/1997. In these batch of writ petitions, we are concerned with only L.G.C. Nos. 115/1995,116/1995 and 258/1995. Although the petitioners are different in L.G.C.Nos. 115/1995 and 116/1995, the respondents therein are common. The respondents in both these L.G.Cs. are petitioners in L.G.C. No. 258/1995. The petitioners in L.G.C. Nos. 115/1995 and 116/1995 along with some others are the respondents in L.G.C. No. 258/1995. L.G.C. No. 258/1995 was originally a suit in O.S. No. 1025 of 1995 filed on the file of the X Assistant Judge, City Civil Court, Hyderabad, seeking the relief of perpetual injunction and the same having been transferred to the Special Court was renumbered as L.G.C. No. 258/1995.
3. The facts lie in a narrow compass. The land in an extent of 570 square yards, the subject matter of LG.C. No. 115/1995 and the land in an extent of 286 square yards, the subject matter of L.G.C. 116/1995 along with other bits of land, total admeasuring Acs. 4.30 guntas covered by old survey number 129/49 of Shaikpet village was originally belonged to Janab Syed Ali Akbar. He divided the said land into four plots as Plot Nos. I to IV. Plot Nos. I to III measured each one acre while plot No. IV measured Ac.1.30 guntas. The subject matter of the present dispute in between the parties inter se pertains to Plot No. Ill. According to the applicants in L.G.C. Nos. 115/1995 and 116/1995 late Syed Ali Akbar sold that Plot No. III under a registered sale deed dated 10-10-1962 in favour of one Ram Bhupaul. An extent of 4840 square yards of land in Plot No. III was sold by the purchaser Ram Bhupaul in favour of Sri G.S.Arora, Mrs. Neera Arora, Sri T.S.Arora and Sri S.K.Sen Gupta under a registered sale deed dated 24-09-1975. The said purchasers from Ram Bhupaul in turn divided the said extent amongst themselves under an oral partition which was later reduced into writing as a memorandum of partition dated 03-10-1989 (sic. 1979). Each one of them got a site in an extent of 1210, 1133, 1184 and 1133 square yards respectively. Each of those subsequent purchasers sold the lands to different persons. Out of them, Smt. Neera Arora one of the four purchasers sold 570 square yards of land to the applicant in L.G.C. No. 115/1995 and 286 square yards of land to the applicant in L.G.C. No. 116 of 1995 under registered sale deeds of even date 18-07-1989 and delivered possession to them.
4. It is the case of the respondent in L.G.C. Nos. 115/1995 and 116/1995 and applicant in L.G.C. No. 258/1995 that one G.Rajaiah purchased an extent of Acs. 2.30 guants of land covered by survey number 129/49 from the original owner Syed Ali Akbar under a registered sale deed dated 10th Ardhi Behisht of 1358 Fasli and after his death, his legal heirs conveyed the said land in favour of the applicant Basanthilal Agarwal under an agreement of sale in the year 1984 and delivered possession to him and that he filed the suit in O.S. No. 1025 of 1995 on the file of X Assistant Judge, City Civil Court, Hyderabad, seeking perpetual injunction against the applicants in L.G.C. Nos. 115/1995 and 116/1995 since the subject matter of those lands form part of the total extent of Acs. 2.30 guntas purchased by him.
5. It is obvious from the respective pleas taken inter alia in the pleadings that both the parties sought to trace their title to the disputed land through the original owner late Syed Ali Akbar. At the time of settlement of issues, the learned Special Court framed the following issues:
(1) Whether the applicant is the owner of the application schedule land ?
(2) Whether the rival title set up by the respondents is true and valid?
(3) Whether the respondent is not a land grabber?
(4) To what relief?
6. An additional issue was framed after the second respondent was added as a party as under:
(5) Whether the first respondent and his predecessor-in-title perfected their title by adverse possession?
7. In proof of their claims, when a common trial was conducted in all the batch L.G. Cs. as many as 11 witnesses were examined on the side of the applicants and the documents Exs. A-1 to A-102 were got marked. Equal number of witnesses were examined on the side of the respondents besides getting Exs.B-1 to B-77 marked. Exs. X-1, X-2 and C-1 to C-4 were marked through witnesses. Appreciating the evidence thus adduced on either side, both oral and documentary, the learned Special Court insofar as L.G.C. Nos. 115/1995 and 116/1995 are concerned in para 144 of its elaborate common Judgment was of the view that the material on record disclosed that neither Basanthilal nor his vendors nor G. Rajaiah were ever in possession of plot Nos. I to IV at any time and further there was no acceptable evidence to show that they were in possession of plot No. III/A and plot No. III/D did not at all fall within the extent of Acs.2.30 guntas claimed by him and on those facts the plea of adverse possession set up by Basanthilal and his vendors deserved to be rejected. Eventually, the learned Special Court allowed L.G.C. Nos. 115/1995 and 116/1995 and dismissed L.G.C. No. 258/1995. Assailing the said findings, the instant writ petitions have been filed, as aforesaid.
8. Sri E. Ayyapu Reddy, learned senior counsel appearing for the writ petitioners, raised the jurisdictional issue. That, in fact, is the thrust of the contention of the learned senior counsel. In view of the said contention, the first respondent filed a miscellaneous petition in WPMP No. 26679/2006 seeking to amend the concise statements in L.G.C. Nos. 115/1995. It is expedient, therefore, to advert to the jurisdictional issue first since it goes to the root of the matter.
9. The A.P. Land Grabbing (Prohibition) Act is a special Act enacted by the State so as to curb the activity of land grabbing by the unscrupulous elements and mafia. Clauses (d) and (e) of Section 2 of the Act seek to define the expressions “land grabber” and “land grabbing” respectively. They read as under:
2(6) “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, illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors in interest.
2(e) “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 licence 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 licence basis for construction, or use and occupation, of unauthorized structures; and the term “to grab land” shall be construed accordingly.
10. A combined reading of these provisions shows that if a person takes possession of the land in question unauthorisedly, without any lawful entitlement thereto and with a view to illegally taking possession of such lands or enter into or create illegal tenancies or to construct u nauthorized structures thereon, or to do other acts as are enumerated in Clause (e) of Section 2, inter alia such person is said to have committed the act of land grabbing and is a land grabber and the person who gives financial aid to such persons or the person who collects or attempts to collect from any occupier of such lands, rent, compensation and other charges by criminal intimidation or who abets the doing of any of the above mentioned acts are also land grabbers. It is obvious that the essential ingredients of the land grabbing are (1) taking possession of the land unauthorisedly, (2) without any lawful entitlement thereto and (3) with a view to illegally taking possession of such lands or creating any illegal agreements in respect of such lands or to construct unauthorized structures thereon for sale or hire etc.
11. Turning to the law on the point, in Konda Lakshmana Bapuji v. Government of Andhra Pradesh it was held in paras 36 and 37 thus:
36. It must be borne in mind that for purposes of taking cognizance of a case under the Act, existence of an allegation of any act of land grabbing is the sine qua non and not the truth or otherwise of such an allegation. But to hold that a person is a land grabber is necessary to find that the allegations satisfying the requirements of land grabbing are proved.
37. To make out a case in a civil case that the appellant is a land grabber the first respondent must aver and prove both the ingredients the factum as well as the intention that the appellant falls in the categories of the persons, mentioned above [Clause (d) of Section 2 of the Act], has occupied the land in dispute, which belonged to the first respondent, without any lawful entitlement and with a view to or with the intention of illegally taking possession of such land or entering into the land for any of the purposes mentioned in Clause (e) of Section 2 of the Act.
12. It is appropriate here to quote the observations of the Apex Court in State of A.P. v. P.V. Hanumantha Rao . In paras 28 and 29 of its Judgment, the Apex Court held thus:
28. On examination of the relevant provisions of the Act of 1982 and in the light of its objects and reasons, it is apparent that in cases of alleged land-grabbing, exclusive jurisdiction is conferred on the Special Court. Jurisdiction of a civil court on such subject-matter stands ousted. The Special Court has been conferred powers of a civil court to examine all questions of title and possession with respect to the land alleged to have been grabbed. The findings of the Special Court are binding and conclusive on the parties and all others having interest in the land which is alleged to have been grabbed. Against the decision of the Special Court, no appeal is provided. The only remedy of the aggrieved party is to approach the High Court under Article 226 or 227 of the Constitution of India. It is on the basis of the aforesaid provisions that we have to determine the scope of interference of the High Court in writ jurisdiction in the judgment and decision of the Special Court. In the case of Konda Lakshmana Bapuji (2002) 3 SCC 258 this Court, after examining the scheme of the Act, held: (SCC p. 281, paras 40-41)
40. To make out a case in a civil case that the appellant is a land-grabber the first respondent must aver ad prove both the ing redients the factum as well as intention that the appellant falls in the categories of the persons, mentioned above [clause (d) of Section 2 of the Act], has occupied the land in dispute, which belonged to the first respondent, without any lawful entitlement and with a view to or with the intention of illegally taking possession of such land or entering into the land for any of the purposes mentioned in Clause (e) of Section 2 of the Act, summarized above.
41. What needs to be looked into in the present controversy 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 Division Bench in that case further observed: (SCC p. 283, para 45)
A mere prima facie bona fide claim to the land alleged to be 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.
29. The provisions of the Act of 1982, which are to be understood in the light of the Statement of objects and Reasons for the Act ad the decision of this Court in the case of Konda Lakshmana Bapuji (2002) 3 SCC 258 indicate that a mere doubt raised by the State on the title and possession of the occupant of a land does not make him a land-grabber. Whenever the right of the occupant is questioned by the State, it is not enough for the occupant to show that he has a prima facie bona fide claim to the land occupied but a burden is cast on him to prove that he is in occupation or possession of the land under a lawful title.
13. In Gouni Satya Reddy v. Government of Andhra Pradesh the apex Court held in para 8 thus:
From a reading of the definitions of the phrases land grabber and land grabbing it is clear that the grabbing of any land must be without any lawful entitlement and with a view to take possession of such lands illegally. That is to say, the land grabber must be aware of the fact that he is entering into the possession illegally and without any lawful entitlement. If such elements as indicated above are missing in our view, it would not be a case of land grabbing.
14. In N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act 2006 (4) ALT 29 (SC) : 2006 (4) SCJ 328 the Apex Court held in para 46 thus:
The attempts by the heirs of Uppari Ramaiah to dispossess the said transferees could at best be said to be an attempt to gain possession of the lands without actually obtaining possession thereof, which would not constitute an act of land grabbing within the meaning of the A.P. Land Grabbing (Prohibition) Act, 1982. We agree with both Mr. Venugopal and Mr. Nariman that in order to constitute an act of land grabbing, an attempt to dispossess must be followed by actual dispossession which would then constitute land grabbing so as to attract the penal provisions of the 1982 Act.
15. In Hindustan Aeronautics Employees Co-operative Housing Society Limited, Hyderabad v. Special Court Constituted under A.P. Land Grabbing (Prohibition) Act, 1982, Hyderabad and Ors. it was held thus:
From this, it is clear the relief of redelivery of possession of the grabbed land to the rightful owner can be granted by the Special Court or Tribunal, if necessary facts are pleaded and proved….This presupposes that the possession of the land was wrongfully assumed by the person accused of grabbing the land. If the attempts to grab land are to be treated as constituting a cause of action, to enable the party complaining of it, to initiate proceedings, the Court or Tribunal must be in a position to grant the relief in case the facts pleaded, are proved. In such an event, the nature of relief has to be in the form of a perpetual injunction or anything equivalent to it. There is no provision in the Act, which enables the Special Court or Tribunal to grant such relief. Therefore, this is also a pointer to the conclusion that the Act does not contemplate adjudication into matters where the allegation is only as to attempt to grab the land.
Again in para 79 it was held thus:
Apart from the reasons stated above, accepting the plea of the petitioners, would result in a virtual institutional dislocation, if not breakdown. If Special Courts are to take cognizance of the matters on the allegations of attempt to grab or threat to dispossess, all the suits filed in the civil Courts for the relief of perpetual injunction, in respect of the lands, to which the provisions of the Act apply, have to be transferred or withdrawn to Special Court, or at least, be rejected by the concerned Civil Courts, as not maintainable.
16. In State of Andhra Pradesh v. Pramila Modi and Ors. a Division Bench of this Court at the end of para 37 held thus:
Assertion of one’s own right, title and interest in the land whether sustainable or not will not amount to any act of land grabbing unless it is established that possession was taken illegally with that view in mind.
17. In Mohd. Siddiq Ali Khan v. Shahsun Finance Ltd., Chenna a Full Bench of this Court considered the concept of the expression ‘taking cognizance’. In the process while referring to the decision of Konda Lakshmana Bapuji’s case (1 supra) in para 106 held that unless a person unauthorisedly and without any lawful entitlement thereto enters or intrudes into a land forcibly or otherwise, he cannot be held to be a land grabber. The Full Bench in para 108 again while referring to Gouni Satya Reddi’s case (2-A supra) of the Apex Court reiterated the view that the land grabber must be aware of the fact that he is entering into the possession illegally and without any lawful entitlement; if such elements are missing, it would not be a case of land grabbing. Ultimately in para 112 the Court held thus:
In our considered opinion, the mere repetition of expression “land grabber” and “land grabbing” by themselves would not be enough for taking cognizance of a case, unless the averments and the allegations made in the concise statement attract the ingredients of “land grabber “or” land grabbing.
18. In M. Yadagiri Reddy v. V.C. Brahmanna a Division Bench of this Court held in para 19 thus:
It is observed in clear and categorical terms that merely not being entitled to get the possession itself is not enough to hold a person to be a land grabber unless the possession was taken with an intention to enter into possession illegally. The mere fact of legally not entitled to the possession would not fulfil the ingredients of the definition “land grabber” and “land grabbing”. Mere fact that one is not lawfully entitled to enter into possession would not be enough to characterize one to be a land grabber and such entry does not amount to land grabbing unless possession is illegally taken with that view in mind. The person taking possession must know that he is acting illegally while taking possession of the land.
19. In State of Andhra Pradesh, represented by Mandal Revenue Officer, Secunderabad v. Sri Prakash (Writ Petition No. 8812 of 2003 dated 28-09-2006) we have taken a view adverting to the Judgments referred to hereinabove thus:
What is required having regard to the definitions of “Land Grabber’ and ‘Land Grabbing’ enjoined under Section 2(d) and (e) is unathorised occupation of land without any lawful entitlement thereto with a view to illegally taking possession of such land for any of the purposes enumerated inter alia in Section 2(e) of the Act. So long as the position that it is not a strict liability stands, whether the person has the necessary intention or knowledge in committing an act of land grabbing ultimately it remains to be seen as a question of fact to be decided with reference to the facts of each case.
The legal position is thus obvious.
20. The Special Tribunal or the Special Court established under the Act undoubtedly has jurisdiction to try the case of land grabbing. As can be seen from Section 8 of the Act it is obvious that the jurisdiction of the Special Court is exclusive and it ousts the jurisdiction of the Civil Court. The Special Court is empowered to adjudicate the question of title and ownership to or lawful possession of any land grabbed under the Act, what is more that the Special Court established under the Act is a Civil Court having all the trappings of the Civil Court. Therefore, it excludes the jurisdiction of the Civil Court. Undoubtedly, the Special Court gets jurisdiction to try a case only when it is alleged specifically that an act of land grabbing has been committed as otherwise it will not get any jurisdiction. To maintain an application before the Special Court it must be specifically averred in the application that an act of land grabbing has been committed by a land grabber without any lawful entitlement to the land and with a view to taking illegal possession of such land or to construct unauthorized structures or to perform any other acts as enumerated inter alia in Clause (e) of Section 2 of the Act. In the absence of any such averments made specifically inter alia in the application, the jurisdiction of the Special Court or the Special Tribunal, as the case may be, is not attracted although the question of title or right to or possession over the land in dispute is involved. Such matters come within the domain of the Civil Court. In N. Srinivasa Rao’s case (referred to 2-B supra) the Apex Court has gone to the extent of saying that the question as regards the prescription of title by means of adverse possession is not within the jurisdiction of the Special Court established under the Act and such a question falls within the domain of the Civil Court. Of course, a Division Bench of this Court of which we are parties has taken that view in Jonnalagadda Samrajyam v. Registrar, the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 (D.B.) that having regard to the earlier Judgments of the Apex Court in Konda Lakshmana Bapuji v. Government of Andhra Pradesh and in State of Andhra Pradesh v. P.V. Hanumantha Rao (referred to supra 1 and 2) that it is well within the jurisdiction of the Special Court to consider the question of title including the question of title by prescription by means of adverse possession. Otherwise, when ever there is an issue for determination as regards the prescriptive title by means of adverse possession falls for determination, the Special Court cannot legitimately adjudicate that issue and, therefore, the matter will have to be agitated only before the Civil Court.
21. Initially it was understood by this Court in State of A.P. v. Sattaiah 1993 (1) APLJ 480 and in J. Anji Reddy v. M.A. AIi Khan 1990 (1) An. W.R. 717 : 1990 (1) L.S. 268 an attempt to commit land grabbing comes within ambit of the expression “land grabbing”. On a reference made to a Larger Bench consisting of 5 Judges this Court in Hindustan Aeronautics Employees Co-operative Housing Society Ltd. v. Special Court (Land Grabbing) (L.B.) (same as No. 3) had to consider the definition of the expressions “land grabber” and “land grabbing”. Recently in N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act , the Apex Court has also taken the same view. In view of the above, it is now obvious that an attempt to commit land grabbing is not a land grabbing.
22. From the above it is obvious that it must be specifically averred in the application that the respondents committed an act of land grabbing so as to give jurisdiction to the Special Court or the Special Tribunal, as the case may be. It is not sufficient to merely aver that the respondent is a land grabber albeit repeatedly.
23. Keeping the above law in view, we have to examine as to whether it is the case of the respondents herein that the writ petitioners committed any act of land grabbing which alone gives jurisdiction to the Special Court. In the concise statement appended to the application in L.G.C. Nos. 115/1995 in para 1, it has been averred specifically thus:
It is humbly submitted that the petitioner is the absolute owner and in possession of the portion of the suit scheduled land ad measuring 570 square yards bearing Plot No. III/D (part)….
Again in para 6 it has been averred thus:
I submit that I am the absolute owner of land in possession of the suit schedule plot forming and bearing portion of Plot No. III/D, situated in Land bearing Survey No. 129/49 (Old)
In para 7 which is crucial it is averred thus:
It is humbly submitted that while this being the position, the respondent had in the month of April, 1995 encroached upon the suit Schedule Land along with his henchmen and servants claiming rival title and has also taken away the board on which the petitioner’s name was displayed prominently as owner and possessor and has illegally erected a board displaying his name in a vain hope of affirming a non existent possession. I humbly submit that I am in De Jureand also in De facto possession of the suit schedule land notwithstanding the fact of the respondent having erected his name board thereupon.
Thus, it is humbly submitted that the Respondent has illegally encroached on to the suit scheduled land and thus having committed an offence of land grabbing has committed an offence of land grabbing as visualized under
Section 4 of the Act and therefore deserves maximum punishment as per law.
After the writ petitioners filed their counter, the applicants in L.G.C. Nos. 115/1995 and 116/1995 filed reply affidavits. Again in para 2 of the reply affidavit, it has been averred thus:
It is humbly submitted that I am the sole and absolute owner and in possession of the portion of the suit schedule land totally admeasuring 570 square yards by virtue of a sale deed dated 18-07-1989.
Again in para 3 it is averred thus:
I humbly submit that it is absolutely false to state that the respondent was or is at any time in possession of any part or portion of the suit schedule land and that the respondent has made out an absolutely bogus case of his alleged predecessor in title having purchased the suit schedule land from the very same Syed Ali Akbar vide a registered sale deed dated : 1358 Fasli.
In para 5 it is averred thus:
I further submit that though the respondent claims possession over the suit scheduled land from 1984 onwards, there is not a shred of evidence placed before this Hon’ble Court to substantiate the said claim….
In para 9 it is averred thus:
Therefore I humbly submit that it is absolutely false to state that the respondent is in possession of or is the title holder of any part or portion of the suit schedule land for. I am the absolute owner of land in possession of the portion of Plot No. III/D, admeasuring 570 square yards formed in Plot No. III and forming part and parcel of land bearing Sy. No. 129/49 (old) 30 (new) of Shaikpet Village.
Page 12 of the reply affidavit is crucial and it reads as under:
Thus, I humbly submit that the respondent had surreptitiously and clandestinely obtained exparte injunction orders from the Court of the Hon’ble X Assistant Judge at Hyderabad by furnishing wrong addresses of the applicant and had under the guise of the said order illegally encroached on to the suit schedule land, thus, can neither justify nor sustain the illegal possession as alleged.
Thus, on the ground of the ex parte interim injunction orders dated 19-04-1995 having been obtained by fraud alone the said ad interim ex parte injunction order passed by the Hon’ble X Assistant Judge, Hyderabad, it rendered non est and deserves to be ignored by this Hon’ble Court.
24. Obviously, the applicant in para 12 of his reply affidavit seeks to explain that the ex parte injunction order obtained by the writ petitioners against the respondent having been obtained by playing fraud upon the Court by trying to show that notices have been served upon the respondents by giving wrong addresses, can neither justify nor sustain the illegal possession by encroaching upon the suit schedule land and such an order is rendered non est and deserves to be ignored by the Special Court.
25. The same averments have been made in the concise statement filed by the applicant in L.G.C. No. 116/1995 and also in the reply affidavit filed therein.
26. On a perusal of the concise statement and the reply affidavit filed in both the applications, it is obvious that the applicants sought to maintain their possession notwithstanding the ex parte injunction granted in favour of the respondents. That is the reason why it has been specifically averred in the applications that the applicants are in de jure and de facto possession of the application schedule lands. Encroachment said to have been made by the respondents under the guise of ex parte injunction order, according to the applicants, was illegal and cannot be sustained. Such an averment made in the application will not confer any jurisdiction upon the Special Court under the Act. What is required to be mentioned in the application to maintain it before the Special Court is obvious, as discussed hereinabove. Such allegations are conspicuously absent in the applications filed before the Special Court. It is, therefore, not only a case where there have been no specific averments which attract the jurisdiction of the Special Court, they a case where the averments were specific that they have been in de jure and de facto possession of the application schedule lands notwithstanding the fact that an ex parte injunction order was passed in favour of the respondents in the suit OS. No. 1025 of 1995 which takes away the jurisdiction of the Special Court.
27. When the averments themselves emphatically say that they have been in possession, let us now turn and see the conclusions reached by the Special Court.
28. In para 149, the learned Special Court observed that the applicants in L.G.C. Nos. 115/1995 and 116/1995 have lost possession in April, 1995 and when a claim of possession based on title was made by the plaintiff, the defendant resisted the said claim by showing that he had been in adverse possession for over the statutory period and perfected his title thereto. In the case on hand the respondents in L.G.C. Nos. 114/1995 to 116/1995 who are the applicants in L.G.C. No. 258/1995 miserably failed to establish the plea of adverse possession in respect of any portion of the application schedule properties.
29. In para 150, the Special Court observed that the respondents fully satisfied the definition of “land grabber” inasmuch as they had created false documents and concocted evidence both oral and documentary obviously with the object of taking illegal possession of the land belonging to the lawful owners thereof and not only the acts of completed land grabbing but also the acts of an attempted land grabbing fall within the purview of the provisions of the A.P. Land Grabbing (Prohibition) Act, as held by the High Court of A.P. in State of A.P. v. Sathaiah and in J. Anji Reddy v. M.A. All Khan (referred to 8 and 9 supra).
30. In para 151, the Special Court observed thus: “On a consideration of the entire oral and documentary evidence available on record that the applicants in L.G.C. No. 258/1995 had no title to any portion of the application schedule extent of Acs. 2.30 guntas of land.”
31. In para 152 the Special Court was of the clear view that the way in which the respondents fabricated the documents constitute an activity of land grabbing. The Special Court was of the further view that an attempt to commit land grabbing is also an act of land grabbing. In paras 137, 144 and 152 the Special Court was of the clear view that the respondents or their predecessors have never been in possession of the land in dispute.
32. Obviously, having been of the clear view that an attempt to commit land grabbing is also an act of land grabbing, the impugned common Judgment came to be rendered. But in view of the clear legal position, as discussed hereinabove, particularly the Larger Bench Judgment of this Court and the Judgment of the Apex Court in N. Srinivasa Rao’s case (10 and 11 supra), an attempt to commit land grabbing is not an act of land grabbing. On the other hand, having regard to the Judgment of the Apex Court in Konda Lakshamana Bapuji’s case, and Gouni Satya Reddi’s case (referred to 1 and 2-A supra) it is obvious that there must be an act of land grabbing by taking illegal possession of the land without any lawful entitlement thereto and with a view to do one or the other acts as enumerated in Clause (e) of Section 2 of the Act. That alone is an act of land grabbing and unless it is specifically averred in the application that the respondent has committed an act of land grabbing and is, therefore, a land grabber, the jurisdiction of the Special Court cannot be clutched at.
33. It is the thrust of the contention of the respondents that even as per the case of the writ petitioners themselves by virtue of interim injunction orders dated 19-04-1995 the writ petitioners retained possession of the application schedule site notwithstanding the plea of the respondents to the contrary. To buttress the said contention, the learned Counsel appearing for the respondents seeks to place reliance upon a judgment of the Apex Court in Firm Srinivas Ram v. Mahabir Prasad AIR 1951 SC 17. According to the matrix in that case, a suit for specific performance has been filed by the plaintiff against two sets of defendants. The case of the plaintiff was that the second party defendants entered into contract with the plaintiff to which they agreed to sell to the latter their house for a consideration of Rs. 34,000/- and the plaintiff paid a sum of Rs. 30,000/- on behalf of the second party to their creditor and the plaintiffs were put in possession consequently of the house. However, the second party failed to execute a conveyance, instead they sold the house to the first party defendants. The plea of the second party defendants was that they never agreed to sell the house of the plaintiffs and since they were in need of money, they borrowed a sum of Rs. 30,000/- from the plaintiff carrying interest at six percent per annum and to facilitate the payment of interest due on the said loan but not in part performance of the contract of sale the plaintiff was put in possession of the same. The trial Court accepted the contention of the second party defendant and dismissed the suit of the plaintiff for specific rerformance. However, it granted eventually a decree in favour of the plaintiff for recovery of the money. The plaintiff field an appeal before the High Court of Patna. The second party defendants filed cross-objections as against the money decree granted by the trial Court in favour of the plaintiff. The High Court concurred with the view of the trial Court that it was not a case of contract of sale and dismissed the appeal. However, it allowed the cross-objections on the ground that it was not the case of the plaintiff that it was a money transaction and no relief was sought for, for recovery of the money. In that context, the Apex Court held in para 9 thus:
A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis.
34. The learned Counsel further seeks to place reliance upon a Judgment of the Apex Court in Kedar Lal v. Hari Lal . That was a case where A, B and C separately owned properties the values whereof are Rs. 30,000/-, Rs. 20,000/-and Rs. 10,000/-respectively. In order to clear of the debts, A, B and C jointly mortgaged their lands for Rs. 10,000/-. There was no contract between them regarding their respective shares of responsibility in the debt of Rs. 10,000/-. The debt was swollen to Rs. 15,000/-. A alone redeemed the mortgage by selling his property to the mortgagee for Rs. 35,000/-, Rs. 15,000/-was applied from out of it towards satisfaction of the mortgage debt and balance of Rs. 20,000/- was retained by him, A suit for contribution was filed by the son of A against B and C the co-mortgagors. The defendants who did not deny their liability to contribute resisted the suit on the basis of which the computation was made. They pleaded a special agreement between them. The trial Court held that the special argument was proved. The High Court took an opposite view. The Apex Court while adverting to the legal position, held that the plaintiff was entitled to the relief under Section 92 read with 82 of the Transfer of Property Act. However, the relief could not be granted in favour of the plaintiff for contribution. The plaintiff also asked for declaration of charge and for decree under Order 34 of the Civil Procedure Code. The Apex Court held that though the claim was inartistically worded, the plaintiff in substance asked for a mortgage decree upto a limit of Rs. 40,253/- with interest against each defendant and no other kind of decree could be given under Order 34. Therefore, though he had not used the word “subrogation”, he had asked in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act. In that context it was held in para 51 thus:
I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.
35. He further seeks to place reliance upon a Judgment of the Apex Court in S.B. Noronah v. Pre Kumari . That was a case where the landlady let out her premises to another lady for a term. The lease was being renewed from time to time and the necessary sanction was being obtained under 21 of the Delhi Rent Control Act as if the letting were of a residential accommodation.
However, the tenant was running a residential school in the premises apparently. The landlady applied for summary eviction of the tenant. That was resisted by the tenant on the ground that the application for eviction did not mention that the letting was in writing. On that ground, the request of the landlady was rejected. Before the Appellate Court, an application for amendment of the pleading was filed and it was allowed. The aggrieved tenant filed an appeal before the Apex Court. In that context, the Apex Court held in para 6 thus:
Pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by courts by sanctifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacunae and there was no need to amend at all. Parties win or lose on substantial questions, not technical tortures and courts cannot be abettors.
36. In K.C. Dora v. G. Annamanaidu it was held that in construing a pleading or a like petition, the Court should not look merely to its form or pick out from it isolated words or sentences, it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter.
37. In Ram Sarup Gupta v. Bishun Narain Inter College the Apex Court was of the view that pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case, it is the duty of the Court to ascertain the substance of pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever a question about lack of pleadings is raised the enquiry should not be so much about the form of the pleadings, instead, the Court must find out whether in substance the parties knew the case and the issue upon which, they went to the trial. Once it is found that in spite of deficiency in the pleadings the parties knew the case and they proceeded to the trial on those issues by producing evidence, in that event, it would not be open to a party to raise the question of absence of pleadings in appeal.
38. In essence, the Judgments show that the pleadings shall have to be construed in a holistic vision as a whole. Isolated excerpts from the pleadings should not be given due weight so as to ignore the patent. It is not the form of the pleadings that is material, but its substance. So long as the omissions in the pleadings do not result in substantial prejudice to the adversary, the endeavour of the Court shall be to give necessary relief to the parties which is warranted by the facts and circumstances. If the opposite party is able to understand the case, it is no matter whether any omissions are there in the pleadings since it will not result in substantial prejudice. So as to avoid multiplicity of proceedings and necessary hardship to the parties, it is expedient in the interest of justice to understand the substance of the claim and give necessary relief even in the absence of an alternative prayer in regard thereto. Inartistic articulations or inadvertent omissions shall not be counted so seriously without taking the quintessence of the pleadings.
39. The law succinctly enunciated by the Apex Court in many a case is well settled. Nonetheless, that is not the case here. It is not a case where the applicants have taken inconsistent pleas or adduced evidence without there being any pleading in support thereof. The question involved in these matters is essentially a jurisdictional question. Whether the Special Court established under the Act has jurisdiction to adjudicate and grant the relief sought for. Although the relief of recovery is sought for at the end, the entire pleadings when construed with the necessary holistic vision as a whole, it is quite discernible that the applicants claimed to have been in possession of the lands in dispute throughout and the respondents have not been in possession of the same at any time. Not only that, the case of the applicants assertively is that notwithstanding the attempt of the respondents to usurp the land by putting a name board which has been subsequently removed by the applicants, they have been in de jure and de facto possession of the lands in dispute. It is further claimed that surreptitiously the respondents obtained ex parte injunction order by playing fraud upon the Court and such an injunction order is non est in the eye of law. Nowhere in the pleadings it has been mentioned that the respondents under the guise of the injunction order grabbed the land. As a matter of that, there has been no pleading of commission of act of land grabbing which activity is defined under Clause (e) of Section 2 of the Act. It may be mentioned here that it is only when there is an allegation of commission of an act of land grabbing that gives the jurisdiction to the Special Court and de hors the same the matter which is squarely a civil dispute between the parties inter se would fall well within the domain of the Civil Court.
40. In State of A.P. v. P.V. Hnumantha Rao (referred to 2 supra) it has been held in para 29 thus:
29. The provisions of the Act of 1982, which are to be understood in the light of the Statement of Objects and Reasons for the Act and the decision of this Court in the case of Konda Lakshmana Bapuji indicate that a mere doubt raised by the State on the title and possession of the occupant of a land does not make him a land-grabber. Whenever the right of the occupant is questioned by the State, it is not enough for the occupant to show that he has a prima facie bona fide claim to the land occupied but a burden is cast on him to prove that he is in occupation or possession of the land under a lawful title.
41. With the specific plea taken inter alia in the applications, it is to be seen as to whether what forum the applicants shall approach. To clutch at the jurisdiction of the Special Court it must be a case of committing an act of land grabbing. In the absence of the same, it is only the Civil Court that continues to have jurisdiction. Had it been a case where the Civil Court is approached having regard to the case set up by the plaintiff in the plaint and the plea taken inter alia in the written statement by the defendant, still the Court can see, regardless of the inartistic articulations or inadvertent omissions, inconsistency in the pleadings having regard to the absence of the allegation of prejudice to the defendant, the necessary relief would have been given to the party even if it is not specifically prayed for so as to avoid multiplicity of proceedings. But that is not the approach when the jurisdictional question arises. It is trite that the plaint gives forum but not the plea taken by the defendant inter alia in his written statement or the counter, as the case may be. Vide Abdulla Bin Ali v. Galappa and Ors. . It was held in the said Judgment thus:
The allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement.
42. Although the respondents writ petitioners claim that they purchased the land from the original vendors and they have been in possession of the same and have even pleaded alternatively the prescriptive title by means of adverse possession, in contradistinction it is the specific case of the applicants that they have been in de jure and de facto possession and they have not parted with the same despite the attempts of the respondents which have been thwarted by them and that even the ex parte injunction order granted by the Civil Court is non est and cannot be sustained. It is obvious, therefore, that the applicants are trying to maintain the stand that they have been in possession. The fact that they have sought for recovery of possession in view of the specific and emphatic stand taken by them which permeates throughout the pleading cannot be taken to understand, in our considered view, that it was a case of an act of land grabbing and should be understood in that sense when there was no allegation of land grabbing as such. Land grabbing cannot be taken in generic sense and it shall have to be understood with reference to the definition of grabbing as given in the Act. In that view of the mater, the application shall have to be construed so as to discern as to whether it is a case of an act of land grabbing or not. Even the learned Special Court was of the view that the way in which the respondents sought to fabricate many a document that act would amount to a case of land grabbing. The Special Court was of the further view that an attempt to commit land grabbing was also a case of an act committing land grabbing. The observations inter alia in the impugned Judgment of the Special Court that the respondent usurped the land in the month of April, 1995 under guise of the ex parte injunction order is without any basis, particularly when it was not the case of the applicants. Thus, a clear dichotomy could be seen from the Judgment of the Special Court in having granted the relief of possession in the absence of the pleading that it was a case of committing an act of land grabbing. It is not necessary that it should be specifically averred in the application that the respondents committed an act of land grabbing. As a matter of that, even if such an averment is made pedantically, if it is not discernible from the pleading that such an act has been done with a view to illegally occupy the land without any lawful entitlement thereto and with a view to do any one of the acts as enumerated inter alia in Clause (e) of Section 2 of the Act the jurisdiction of the Special Court is not attracted. Therefore, the Court has to see whether the necessary ingredients that constitute the act of land grabbing are discernible in one form or the other from the pleadings or not. It is neither a case where a specific allegation has been made alleging the commission of an act of land grabbing, nor a case where it is discernible from the pleadings in any manner that the respondents have taken illegal possession of the disputed land without any entitlement thereto and with a view to perform any of the acts as enumerated inter alia in Clause (e) of Section 2 of the Act. Even taking a liberal view, it is difficult to construe that it has been the case of the applicants that the respondents committed an act of land grabbing as defined under Clauses (d) and (e) of Section 2 of the Act. The applications, as drafted, cannot confer any jurisdiction on the Special Court. Above all, having regard to the fact that the legal position that was in vogue by then, in view of the two Judgments of this Court (referred to 8 and 9 above) that even an attempt to commit land grabbing is a case of land grabbing; the Special Court or the Special Tribunal, as the case may be, is entitled to grant relief of injunction; the applicants seem to have approached the Special Court. However, having rgard to the change in the legal position in view of the Larger Bench Judgment of this Court and the Judgment of the Apex Court in N. Srinivasa Rao’s case (10 and 11 supra), it is now obvious that an attempt to commit land grabbing is not a land grabbing at all. It is only the act of land grabbing when committed that gives jurisdiction to the Special Court. Therefore, the difference between a jurisdictional issue and whether it is an inconsistent plea or seeking alternative pleas or absence of specific relief sought to be made which enable the Court to construe the pleadings liberally and to grant the necessary relief to which the parties entitled to as is now sought to be contended is obvious and shall not be lost sight of. The fact that the respondents have taken a specific plea that they have been in possession and more so that they have perfected title by means of prescription by adverse possession is not available to the Court so as to construe in the absence of the plea of commission of an act of land grabbing which alone gives jurisdiction to the Special Court so as to ultimately see that it is a case of commission of an act of land grabbing by the respondents.
43. However, it may be mentioned here that the first respondent in Writ Petition No. 21300/1999 filed WPMP No. 26679/2006 seeking to amend the concise statement presumably having realized the mistake, he now wants to amend it. Whether the proposed amendment would again give jurisdiction to the Special Court or not is an altogether different aspect. But such application deserves no consideration by this Court for the reason that this Court is not sitting in appeal over the Judgment of the Special Court under the Act. Exercising certiorari jurisdiction under Article 226 of the Constitution of India, this Court has certain limitations. It has been succinctly held by a Constitution Bench of the Apex Court in Syed Yakoob v. Radha krishnan in para 7 thus:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, is for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellant Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence 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 garve it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said findings, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference 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 Courts under Article 226 to issue a writ of certiorari can be legitimately exercised vide Hah Vishnu Kamath v. Ahmad Ishaque ; Nagendra Nath v. Commissioner of Hills Division and Kaushalya Devi v. Bachittar Singh .
44. In State of A.P. v. P.V. Hanumantha Rao (referred to 2 supra) it has been held in paras 30 to 33 thus:
30. True it is that remedy of the writ petition available in the High Court is not against the decision of the 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 vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining.
31. In the case of Surya Dev while examining the nature and ambit of power of the High Court to issue writs under Article 226 or 227 of the Constitution, the above-stated legal position has been recognised by observing thus: (SCC p. 696, para 39)
39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules…. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.
32. This Court has recognised the right of the High Court to interfere with orders of subordinate courts and tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby.
33. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognised even in the case of Sawarn Singh (1976) 2 SCC 868 on which strong reliance was placed on behalf of the State. The relevant observations are: (SCC p. 872, para 13)
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.
45. The limitations clearly laid down by the Apex Court are obvious. What is required to be considered by exercising extraordinary jurisdiction under Article 226 of the Constitution of India have been clearly laid down by the Apex Court. In that view of the matter, the request of the respondents to permit them to suitably amend the concise statements cannot be considered. However, having due regard to the facts and circumstances of the case, more particularly that while claiming emphatically that the respondents have been in de jure and de facto possession of the disputed lands, they sought for relief of possession. Even the Special Court while holding that the respondents are the land grabbers for the reason that they have created bogus documents, which in the perception of the Special Court amounts to land grabbing, eventually granted the relief of possession. In our considered view, there appears to be dichotomy in the findings reached by the learned Special Court. In para 149 of its Judgment the Special Court was of the view that in the month of April, 1995 the respondents usurped the lands in question under the guise of ex parte injunction order. These aspects shall not be ignored by us. So as to render substantial justice to the parties, we are of the considered view that it is expedient in the interest of justice to remit the matters to the Special Court so that the applicants, if they are so advised, can suitably seek to amend the concise statements and the reply affidavits filed by them in the L.G. Cs. and the respondents can also file their respective counters if such amendment is sought for, in which event, after hearing either side, the learned Special Court can dispose of the applications afresh.
46. For the above reasons, the Writ Petition Nos. 21300 and 21301 of 1999 are allowed and the impugned common Judgment in so far as it pertains to the above writ petitions is concerned is hereby set aside and the matter is remitted to the Special Court for fresh disposal after giving an opportunity to the applicants to file necessary application for amendment of the pleadings and by passing appropriate orders taking into consideration the counters, if any, filed by the respondents. The Writ Petition No. 26557 of 1999 is dismissed since the Special Court has no jurisdiction to grant the relief of injunction as prayed for in L.G.C.No. 258 of 1995. However, there shall be no separate order as to costs.
