DR.KAZIMUNNISA (DEAD) BY L.R.versusZAKIA SULTANA (DEAD) BY L.R.& ORS.

                        [2017] 11 S.C.R.1019


               DR.KAZIMUNNISA (DEAD) BY L.R.                          A

                                  v

            ZAKIA SULTANA (DEAD) BY L.R.& ORS.

               (Civil Appeal Nos. 18783-18784 of 2017)                B

                       NOVEMBER 15, 2017

   [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

          The Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 C
  - s.8 - Two cases filed by the respondents, one in 1998 against the
  appellant with District Collector and Special Officer, Land Ceiling
  also as parties and the other in 2004, only against the appellant
  before Special Court claiming possession of a portion of the suit
  land occupied by appellant - Special Court dismissed the case filed D
· in 1998, however, allowed the one filed in 2004 holding that
  respondents were the owners of the portion of the suit land which
  was in possession of the appellant - Writ petitions u!Art.227 filed
  by both, the appellant and ihe respondents - High Court allowed
  the writ petition filed by respondents while dismissed the one filed
  by the appellant - On appeal, held: Admittedly, when two cases E
  arising between the same parties and in relation to the same piece
  of suit land were filed for grant of identical reliefs then both the
  cases should have been clubbed together, u/Or. II, r.3, of the Code,
  to avoid any conflicting decision in both the cases - Further, though
  the District Collector filed his counter affidavit in the 1998 case F
  not only denying the respondents' title but also pointing out as to
  who was the original owner of the suit land, no counter affidavit
  was filed in the 2004 case since District Collector was not made a
  party in the said case resulting in passing of conflicting decisions
  on the same set of facts and evidence - Impugned judgment set
  aside - Both the cases remanded to Special Court for their disposal G
  afresh on merits after club/Jing them together - District Collector
  and the Special Officer, Urban Land Ceiling, Hyderabad also to be
  made party in the 2004 case - Parties to contest the case before the
   Special Court de novo on merits - Code of Civil Procedure, 1908 -
   Or. II, r.3 - Constitution of India - Art.227.
                                                                        H
                                 1019
1020         SUPREME COURT REPORTS                    [2017] 11 S.C.R.


 A        Partly allowing the appeals, the Court

          HELD: 1.1 Both the cases in question, i.e. (L.G.C. Nos.41/
   1994 and 50/2004) are remanded to Special Court for their
   disposal afresh on merits in accordance with law. The need to
   remand both the LGCs to the Special Court is considered
 B necessary due to the following reasons. First, it is found that the
   trial of the two cases before the Special Court was not satisfactory
   inasmuch as when admittedly the two LGCs arising between the
   same parties and in relation to the same piece of suit land were
   filed for grant of identical reliefs under The Andhra Pradesh Land
 c Grabbing (Prohibition) Act, 1982 then, both the cases should have
   been clubbed together for their disposal on merits in accordance
   with law to avoid any conflicting decision in both the cases. It was
   more so when both the cases were capable of being clubbed
   together because both were pending though filed one after the
   other, neither the parties nor the Courts below took note of this
 D with the result, the same resulted in passing two conflicting orders
   - one was decreed and the other suffered dismissal. This recourse
   adopted by the Court below caused prejudice to the parties and,
   especially, to the party who lost the case. [Paras 25-28] [1025-G-
   H; 1026-A-D]
 E
          1.2 Indeed, this was an appropriate case where the
   provisions of Order II Rule 3 of the Code of Civil Procedure,
   1908, which deals with joinder of causes of action, could have
   been resorted to by the Court suo moto for clubbing the two cases
   as the facts involved in both the cases satisfied the attributes of
 F Order II Rule 3 of the Code. Second, it is found that the case
   which was filed first, i.e.,(L.G.C.No.41/1994), the District
   Collector and the Special Officer, Urban Land Ceiling, Hyderabad
   were rightly made parties-non-applicants by the respondents
   whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently,
 G both the State authorities were not made parties for the reasons
   best known to the respondents. These two State authorities should
   also have been arrayed as non-applicants in the second case,
   i.e., LGC No. 50/2004 like the earlier one to maintain parity in
   both the cases. The parties as also the Courts below overlooked
   this aspect though material for the proper disposal of both the
 H cases. Third, it is found that though the District Collector filed
   DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA                         1021
               (DEAD) BY L.R.& ORS.

his counter affidavit in first case (LGC No.41/1994) in which he A
not only denied the respondents' title but also pointed out as to
who was the original owner of the suit land but neither the
respondents countered these averments nor the District
Collector adduced any evidence to prove the averments. Similarly,
no counter affidavit was filed in second case (LGC 50/2004) by B
the District Collector because he was not made party in the case.
This was another infirmity in the trial of both the cases, which
resulted in passing conflicting decisions in both the cases. This
was neither noticed by the Special Court nor High Court which
resulted in recording reverse finding on the same set of facts
and evidence. Lastly, it is found that the High Court while C
reversing the findings of the Special Court decided the writ
petition under Article 227 of Constitution of India like a first
Appellate Court by appreciating the entire evidence little realizing
that the jurisdiction of the High Court while deciding the writ
Petition under Article 227 is not akin to appeal and nor it can
decide the writ petition like an Appellate Court. [Paras 29-36] D
[1026-E-H; 1027-A-DJ

      1.3 The two newly added non-applicants in LGC No. 50/
2004 are afforded an opportunity to file their counter affidavits in
LGC No.50/2004. All the parties in both the cases are also afforded      E
an opportunity to amend their pleadings in case, if they so consider
it proper and also file any additional evidence both oral and
documentary in addition to what has already been filed in support
of their respective case, if they so desire to file. After completion
of the pleadings, if considered necessary, the Court may also
frame additional issues or/and recast the issues already framed          F
and then decide both the cases by common judgment. [Paras 40-
42] [1028-A-C]

     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 18783-
18784of2017.                                                             G
      From the Judgment and Order dated 17.09 .2014 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in Writ Petition No. 15055 of 2004 and Writ Petition
No. 27567 of2008.
                                                                         H
1022            SUPREME COURT REPORTS                          [2017] l l S.C.R.


 A         Huzefa Ahmadi, Basava Prabhu Patil, Shanti Bhushan, Sr. Ad vs,
   WajidAli Kami!, Ejaz Maqbool, Mrigank Prabhakar, C. George Thomas,
   Rohan Sharma, Pranab Kumar Mullick, Ms. Soma Mullick, Yaidaiah
   Jetti, Sebat Kumar Deuria, Kartik Seth, Riddhi Bose, P. Venkat Reddy,
   Prashant Tyagi (for M/s.Venkat Palwai Law Associates), Advs for the
 B appearing parties.
             The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. I. Leave granted.
          2. These appeals are filed against the final judgment and order
   dated 17.09.2014 passed by the High Court of Judicature at Hyderabad
 C for the State of Telangana and the State of Andhra Pradesh in Writ
   Petition No. 15055 of2004 and Writ Petition No. 27567 of2008 whereby
   the Division Bench allowed Writ Petition No.15055 of2004 by reversing
   the judgment dated 16.06.2004 of the Special Court in LGC No.41 of
   1998 and dismissed Writ Petition No. 27567 of 2008 while confirming
 D the judgment dated 23.10.2008 of the Special Court in LGC No.50 of
   2004.
             3. In order to appreciate the issues involved in these two appeals,
       few relevant facts need mention.
              4. The dispute in these appeals relate to land bearing old Survey
 E     No. 129 (new Survey No. 358), T.S. Nos.1/3 and 5/3 situated at Banjara
       Hills, Hyderabad (hereinafter referred to as the "suit land").
               5. The questions, which broadly fall for consideration in these
       appeals are, first, who is/are the owner(s) of the suit land and, if so, on
       what basis and of which portion and for how much area; Second, who
 F     is/are in possession of the suit land and of how much area and of which
       portion and since when and whether their possession has been legal on
       such area and, if so, its basis and whether they or any of them have, at
       any point of time, encroached upon any parcel of suit land to the detriment
       of its owner's interest and, if so, to what extent, they encroached and
       since when?
 G
             6. These questions have to be decided in the light of the relevant
       provisions of The Andhra Pradesh Land Grabbing (Prohibition) Act,
       1982(hereinafter referred to as "the Act").
          7. Two cases were filed by the respondents through power of
 H attorney holder against the appellant herein before the Special Court
   DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA                                  1023
   (DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.]

under Section 8 of the Act for claiming possession of the portion of the          A
suit land.
       8. One case was filed on 02.01.1998, i.e., (LGC No.41/1998)
whereas the other was filed on 15.04.2004,i.e.,(LGC No.50/2004). So
far as LGC No. 50/2004 is concerned, it was filed two months prior to
the disposal of first case, i.e., LGC No. 4111998.                                B
      9. So far as LGC No.4111998 is concerned, it was filed against
Kazimmunisa (since dead and now represented by her legal
representative-appellant herein) as non-applicant No. 1, District Collector,
Ranga Reddy District as non applicant No. 2 and the Special
Officer.Urban Land Ceiling, Hyderabad as non applicant No. 3.                     c
      10. So far as LGC No. 50/2004 is concerned, it was filed only
against Kazimmunisa and her family member as non-applicant No. 1
(now represented by her legal representative).
      11. In other words, in LGC No.50/2004, District Collector, Ranga
Reddy Dist. and Special Officer, Urban Land Ceiling, Hyderabad were D
not impleaded as non-applicants though both these State authorities were
impleaded in LGC No. 4111998 as non-applicant Nos. 2 and 3.
        12. Sq far as LGC No. 4111998 is concerned, the application was
founded on the allegations that the respondents are the owners of the
suit land. The respondents, in support of their claim of ownership over            E
the suit land traced their title through some documents of title of their
predecessor-in-title, entries in the revenue records and other documentary
evidence and on the basis of these documents,. alleged that their title
over the suit land including portion of the suit land is primafacie established
as against the appellant.                                                          F
        13. The respondents then alleged that the original appellant herein
(non-applicant No. 1 in the case) illegally and without any lawful title
and authority has encroached upon a portion of the suit land of which
the respondents are the owners and hence under the provisions of the
Act, the respondents have become entitled to claim possession of the               G
illegally encroached portion of the suit land from the appellant which
essentially belonged to them.
       14. The appellant (non-applicant No. 1) denied the respondents'
case and contended that, firstly, the respondents are not the owners of
the portion of the suit land; Secondly and on the other hand, the appellant
                                                                                   H
1024             SUPREME COURT REPORTS                            [2017] ll S.C.R.


 A     is the lawful owner of portion of the suit land; Thirdly, the appehant has
       been in lawful possession of the said portion of the suit land as owner
       thereof; Fourthly, the appellant has not encroached upon any portion of
       the suit land as alleged by the respondents. The appellant(non-applicant
       No. l ), in support of her case, also filed documents of title, revenue entries
       and other documents.
 B
          15. So far as the District Collector (non-applicant No. 2) is
   concerned, he also filed the written statement(counter affidavit) on behalf
   of the State. He also denied the respondents' claim including the
   respondents' title over the suit land. He found fault in the title traced by
 C the respondents' over the suit land and contended that the respondents
   have not been able to establish their prima facie title over the suit land.
   He then alleged that the Government record does not support the
   respondents' case and nor the facts stated in the application by the
   respondents tracing their title tally with the Government's record.
              16. Parties then adduced evidence. The Special Court, by order
D      16.06.2004, dismissed the respondents' application finding no merit
       therein.
           17. So far as LGC No. 50/2004 is concerned, it was in relation to
   another portion of the same suit land. This application was also based on
   somewhat identical averments on which LGC No. 41/1998 was founded
 E for claiming relief therein. The respondents, as mentioned above in LGC
   50/2004, impleaded only the original appellant as non-applicant No. I but
   neither impleaded the District Collector nor the Special Officer Urban
   Land Ceiling, Hyderabad as non-applicant along with the appellant.
              18. The original appellant herein filed written statement in (LGC
 F     No. 50/2004) and denied the respondents' claim. She took the same
       defense, which she had taken in LGC No. 4111994 to prove herownership
       over the portion of the suit land. She also raised the plea of Order 2 Rule
       2 of the Code of Civil Procedure 1908 (hereinafter referred to as "the
       Code") and also raised the plea of limitation.
 G            19. By order dated 23.10.2008, the Special Court allowed this
       application (LGC No.50/2004) and held that the applicants( respondents
       herein) are primafacie the owners of the portion of the suit land, which
       has been in possession of the appellant. It was held that the original
       appellant herein was neither able to rebut the case of respondents as per
       Section I0 of the Act by proving their primafacie legal title over the suit
H
   DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA                               I 025
   (DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.]

land nor legal possession over the portion of the suit land and, therefore,    A
she is held as "Jarid grabber" in relation to the land in her possession
under the Act and, hence, she is liable to restore the portion of the suit
land which is held to be in her illegal possession to the
applicants(respondents herein).
       20. The appeJlant, felt aggrieved of the judgment of the Special        B
Court dated 23.10.2008 passed in LGC No.50/2004, filed writ petition
under Article 227 of the Constitution of India whereas the respondents
felt aggrieved of the order dated 16.04.2004 passed in LGC No. 41/
1994 also filed writ petition in the High Court.
       21. The High Court clubbed both the writ petitions. By common           C
impugned judgment, the High Court aJlowed the writ petition filed by the
respondents, set aside the judgment dated 16.04.2004 passed in LGC
No.4111994 and, in consequence, alJowed their application and, in
consequence, dismissed the writ petition filed by the appelJant against
the judgment dated 23.10.2008 passed in LGC No. 50/2004 and affirmed
the judgment of Special Court dated 23. l 0.2008.                              D
       22. The effect of the impugned judgment of the High Court is that
both LGCs, i.e., 41/1994 and 50/2004 filed by the respondents against
the appeJlant stand decreed in relation to the respective suit land involved
in both the applications and the original appelJant herein has to restore
the possession of the portion of the suit lands which is in her possession      E
to the respondents.
      23. Felt aggrieved, the original appellant has chalJenged the
impugned common judgment of the High Court by way of appeal by
special leave before this Court.
      24. Heard Mr. Huzefa Ahmadi, learned senior counsel for the               F
appellant and Mr. Basava Prabhu Patil, learned senior counsel for
respondent Nos.3,7 and 8, Mr. Shanti Bhushan, learned senior counsel
for respondent No.2 and Mr. P. Venkat Reddy, learned counsel for
respondent Nos.4 & 5.
       25. Having heard the learned senior counsel for the parties at           G
length and on perusal of their written submissions and the record of the
case, we are inclined to alJow the appeals in part and while setting aside
of the impugned judgment of the High Court and also of the Special
Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both
the LGCs to Special Court for their disposal afresh on merits in
accordance with Jaw as indicated below.                                        H
1026            SUPREME COURT REPORTS                         [2017] ll S.C.R.


 A        26. In our considered opinion, the need to remand the
   aforementioned two LGCs to the Special Court is considered necessary
   due to the following reasons.
          27. First, we find that the trial of the two cases before the Special
   Court was not satisfactory inasmuch as when admittedly two LGCs
 B (41/1994 and 50/2004) arising between the same parties and in relation
   to the same piece of suit land were filed for grant of identical reliefs
   under the Act then, in our view, both the cases should have been clubbed
   together for their disposal on merits in accordance with law to avoid any
   conflicting decision in both the cases.
 C        28. It was more so when both the cases were capable of being
   clubbed together because both were pending though filed one after the
   other, neither the parties nor the Courts below took note of this with the
   result, the same resulted in passing two conflicting orders - one was
   decreed and the other suffered dismissal. This recourse adopted by the
   Court below caused prejudice to the parties and, especially, to the party
 D who lost the case.
              29. Indeed, in our view, this was an appropriate case where the
       provisions of Order II Rule 3 of the Code, which deals with joinder of
       causes of action, could have been resorted to by the Court suo moto for
       clubbing the two cases as the facts involved in both the cases satisfied
 E     the attributes of Order II Rule 3 of the Code.
           30. Second, we find that the case which was filed
  first,i.e.,(L.GC.No.41/1994), the District Collector and the Special Officer,
  Urban Land Ceiling, Hyderabad were rightly made parties -non-
  applicants by the respondents whereas in other case, i.e., (L.G.C. No.SO/
F 2004) filed subsequently, both the State authorities were not made parties
  for the reasons best known to the respondents.
           31. In our opinion, these two State authorities should also have
  been arrayed as non-applicants in the second case, i.e., LGC No. 501
  2004 like the earlier one to maintain parity in both the cases. The parties
  so also the Courts below overlooked this aspect though material for the
G proper disposal of both the cases.
           32. Third, we find that though the District Collector filed his counter
  affidavit in first case (LGC No.41/1994) in which he not only denied the
  respondents' title but also pointed out as to who was the original owner
  of the suit land but neither the respondents countered these averments
H nor the District Collector adduced any evidence to prove the averments.
    DR.KAZIMUNNISA (DEAD) BY L.R. v ZAKIA SULTANA                              1027
    (DEAD) BY L.R.& ORS. [ABHAY MANOHAR SAPRE, J.]

         33. Similarly, no counter affidavit was filed in second case (LGC     A
. 50/2004) by the District Collector because he was not made party in the
  case. This was another infirmity in the trial of both the cases, which
  resulted in passing conflicting decisions in both the cases.
      34. This was neither noticed by the Special Court nor High Court
which resulted in recording reversing finding on the same set of facts         B
and evidence.                           '
        35. Fourth, we also find that the issue of maintainability of
 application and also issue oflimitation in filing the two applications by
 the respondents under the Act should also have been decided along with
 other issues.                                                             C
        36. Lastly, we find that the High Court while reversing the findings
 of the Special Court decided the writ petition under Article 227 like a
 first Appellate Court by appreciating the entire evidence little realizing
 that the jurisdiction of the High Court while deciding the writ Petition
 under Article 227 is not akin to appeal and nor it can decide the writ D
 petition like an Appellate Court.
        37. The writ petition, in our opinion, should have been decided by ·
 the High Court keeping in view the scope and ambit of Article 227 for its
 exercise as explained by this Court consistently in series of decisions
 while examining the legality and correctness of judgment of Special Court E
 impugned in the writ petition.
         38. In the light of aforementioned five reasons, we have formed
 an opinion that the trial in both the cases was unsatisfactory inasmuch
 as it caused prejudice to the parties and especially to the one who lost
 the case. It is for these reasons, we do not consider it proper to probe at   F
 this stage the entire factual issues argued by the learned counsel for the
 parties at great length with reference to the pleadings and the evidence
 of the parties. We also do not consider it proper to record any finding on
 merits either way and leave the parties to contest the case before the
 Special Court de novo on merits.
                                                                               G
        39. In view of foregoing discussion, the appeals succeed and are
 11llowed in part. The impugned judgment as also that of the Special Court
 are set aside.
       40. As a consequence, both the cases, i.e., LGC Nos.4111994 and
 50/2004 are restored to their respective files before the Special Court. It
                                                                               H
1028             SUPREME COURT REPORTS                           [20171 11 s. C.R.


 A     is directed that both the cases be clubbed together for their disposal on
       merits. It is further directed that the District Collector and the Special
       Officer, Urban Land Ceiling, Hyderabad would also be made party in
       LGC No.50/2004 as non-applicant Nos. 2 and 3 respectively. These two
       newly added non-applicants in LGC No. 50/2004 are afforded an
       opportunity to file their counter affidavits in LGC No.50/2004.
 B
              41. All the parties in both the cases are also afforded an opportunity
       to amend their pleadings in case, if they so consider it proper and also
       file any additional evidence both oral and documentary in addition to
       what has already been filed in support of their respective case, if they so
       desire to file.
 c
             42. After completion of the pleadings, if considered necessary,
       the Court may also frame additional issues or/and recast the issues already
       framed and then decide both the cases by, common judgment.
         43. As mentioned above, the cases in question arise out of the Act
 D and hence the factual and legal findings have.to be rendered keeping in
   view the relevant provisions of the Act as interpreted by this Court in
   decided cases cited by the learned counsel in support of their contentions.
              44. We, however, make it clear that we have not expressed any
       opinion on the merits of the case and nor recorded any finding on the
 E     merits of the controversy. The Special Court would, therefore, decide
       both the cases strictly in accordance with law on merits without making
       any reference to the order of the Special Court and High Court and
       uninfluenced by any observations made by this Court, High Court and
       Special Court, in any of their judgments.

 F
       Divya Pandey                                            Appeals panly allowed.