Holding

The Special Court had jurisdiction, the appellant lacked lawful entitlement and the requisite animus possidendi, and therefore he is a land grabber under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982.

Summary

The appellant claimed title to a two‑acre parcel of land in Hyderabad based on an unregistered 1954 perpetual lease and a later registered lease, asserting that he had acquired ownership by adverse possession. The State of Andhra Pradesh, asserting that the land was Government property, invoked the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 and obtained a decree from a Special Court declaring the appellant a land grabber and ordering eviction. The appellant challenged the Special Court's jurisdiction, the applicability of res judicata, and argued that his possession was permissive and that he had perfected title by adverse possession and the doctrine of lost grant. The Supreme Court held that the Special Court had jurisdiction under the 1982 Act, that the appellant had neither lawful entitlement nor the requisite animus possidendi to acquire title by adverse possession, and that the presumption of land grabbing under the Act placed the burden on the appellant to prove otherwise. Consequently, the Court affirmed the Special Court's findings that the appellant was a land grabber and upheld the decree of eviction. The appeal was dismissed.

Issues considered

The Special Court's jurisdiction under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982.
Whether the appellant had lawful entitlement to the land and could be deemed a land grabber under the Act.
Whether the appellant had acquired title by adverse possession, including the requirements of possession and animus possidendi.
The applicability of res judicata and constructive res judicata to the proceedings.
The relevance of the doctrine of lost grant to the appellant's claim.

Legislation cited

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982s. 10, s. 11, s. 15, s. 17-B, s. 2, s. 7, s. 8, s. 9
Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955s. 3
Code of Civil Procedure, 1908s. 11, s. Explanation IV
Indian Evidence Act, 1872s. 4

Subjects

land grabbingspecial court jurisdictionadverse possessionres judicataconstructive res judicatalost grantburden of proofgovernment landunregistered leaseanimus possidendi

Judgment

KONDA LAKSHMANA BAPUJI A
v.
GOVT. OF ANDHRA PRADESH AND ORS.

JANUARY 29, 2002

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982: Sections 2 to
10,15 and 17-B.

Land Grabbing-Offence of-Essential ingredients for-Object of the C
Act explained.

Land grabbing-Appellant in occupation of land pursuant to lease
executed by a person having no title-Notice of eviction served on occupant
by Government-Challenge by occupant-No final adjudication by High Court
on rival claims by parties-Suit filed by Government pursuant to liberty granted D
by High Court-Suit decreed by Special Court in favour of Government-
Finding of Special Courts-It has jurisdiction to try the suit-Appellant had
no title to the suit land was thus a land grabber-Appellant had not perfected
his title by adverse possession-Decree passed by Special Court upheld by
High Court-Appeal before Supreme Court-Held, no interference was called E
for with the impugned judgment-Held, appellant was a land grabber-
Principles of Res Judicata and Lost Grant inapplicable-Appellant had not
perfected his title by adverse possession.

Land Grabbing-Special Courts under 1982 Act-Jurisdiction in respect
)
of matters under the Act-Held Special Court has jurisdiction-Jurisdiction of F
' Civil Courts held ousted.

land grabbing-Allegation of-Presumption as to land grabbing-
Burden to prove that land was not grabbed-Held, burden is on the land
grabber to prove that land was not grabbed.

Code of Civil Procedure, 1908: Section II. G
Explanation IV-Res Judicata-Principle ofConstructive Res Judicata-
Applicability of

Constitutionof India, 1950 : Article 136
H
651
652 SUPREME COURT REPORTS (2002) I S.C.R.

A Appeal-Finding of Special Court that occupant was a land grabber-
Neither relevant material excluded nor irrelevant material taken into account
by Special Court-Finding affirmed by High Court-Held, no interference
was called for by Supreme Court.

Adverse possession-Claim of-Essential conditions to prove for-Both
B possession as well as animus possidendi must be shown to exist-Jnamdar--
Lessee of-Possession during continuance of lease-Such a lessee cannot
acquire title by adverse possession.

Easements Act, I 882 :

Principle of Lost Grant-Applicability of
c
Words and Phrases-'Grab'-Meaning of

The question involved in this appeal is whether the appellant has any
lawful entitlement-proprietary or possessory-to the land in dispute and
had come into possession of the land in dispute unauthorisedly. The
D appellant claimed his title to the land in dispute under an unregistered
agreement, dated November 28, 1954 for perpetual lease executed by 'A'
one of the successors of lnamdar in respect of Inam land. Subsequently
'A' executed a registered perpetual lease deed in favour of the appellant
on December 11, 1957. Thereafter 'C' filed a suit against the first
E respondent and the appellant and others praying for declaration of title
and recovery of ~ossession of the said land. During the pendency of suit
appellant was granted permission to construct a building on the land in
dispute on his giving an undertaking that in the event of the plaintiff
succeeding in the suit he would vacate the building without claiming any
compensation. The suit filed by 'C' was dismissed holding that he did not
F have any title to the suit land which was the Government land.
Subsequently, the land in dispute was declared as Government land and
under the A.P. Land Encroachment Act an order of eviction was passed
against the appellant on May 28, 1977. The said eviction order was
successfully challenged before a Single Judge of the A.P. High Court. The
Government of Andhra Pradesh filed a writ appeal before the Division
G Bench. Though the A.P. Land Grabbing (Prohibition) Act, 1982 came into
force on September 6, 1982 but that fact was not brought to the notice of
the Division Bench which dismissed the appeal holding that there was bona
fide dispute of title to the land in dispute between the appellant and the
Government which must be adjudicated upon by the ordinary Court of
H law and that the Government could not decide unilaterally in its own
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. 653
favour and resort to summary eviction proceedings under the Andhra A
Pradesh Land Encroachment Act, 1905. Apprehending his dispossession
from the land in dispute the appellant again filed a writ petition which
was disposed by a Single Judge taking note of observations of the Division
Bench in the writ appeal and the fact that the respondent-State
Government had filed a suit in the City Civil Court, Hyderabad for B
declaration of title and recovery of possession of land in dispute on
November 25, 1985. In view of the provisions of sub-section (8) of Section
8 of the A.P. Land Grabbing (Prohibition) Act, 1982 the suit of the first
respondent-State Government was transferred to the Special Court. The
... appellant challenged the order of the transfer of suit in the High Court
>
by filing a Civil Revision Petition which was later dismissed as not pressed. C
The first respondent filed petition under sub-section (1) of Section 7 read
with sub-section (1) of Section 8 before the Special Court on March 20,
1992 praying the Court to declare the appellant as a land grabber and
the structure raised thereon by him as unauthorized and to order his
eviction from the land grabbed and deliver possession of the same. The
appellant filed his objections on April 1O, 1992 denying allegations of land D
grabbing but did not object to the jurisdiction of the Special Court.
The case of the appellant before the Special Court was that the land
in dispute was part ofSarfekhas land and that after Inam lnquiry, ordered
by H.E.H. the Nizam, Muntakhab was issued in favour of the Inamdar
(Maqtedar) and thereafter succession was granted in favour of his vendor E
(lessor). It was also stated that the appellant had been in possession of the
land from November, 1954 and that before him, his predecessors-in-title
were in possession for innumerable years as Inamdars, so he was entitled
to take on their possession for purposes of perfecting his title by adverse
possession. F
On the other hand case of the respondent-Government was that there
were wrong entries in the record of rights which were corrected by the
Collector on October 5, 1959. It was stated, alternatively, if the land in
dispute formed part of the Inam land the same had vested in the first
respondent with effect from July 20, 1955, the date of vesting as per G
Section 3 of the A.P. (Telangana Area) Abolition of Inams Act, 1955. None
of the heirs of the alleged Inamdar appeared before the Collector,
Hyderabad, for claiming registration as .>ccupants under Section 10 of the
said Act. The land in dispute was shown as Maqta land belonging to one
'N' for some time and thereafter as Inam land and the appellant claimed
to be the lessee of'A' one of the successors to the said Maqta; he occupied H
654 SUPREME COURT REPORTS [2002] I S.C.R.

A the said land in the year 1958 or so and raised a building on permission
given by Court. The claim of the appellant was not proper, valid and legal
because the land never belonged to the said Maqta. Even otherwise it
vested in the Government with effect from the date of the loams Act; the
order of the Collector, correcting entries in the record of rights which
B order had become final.
After considering the evidence adduced by both sides the Special
Court decreed the case of the first respondent on April 16, 1993, It held
that it had jurisdiction to try the case. If further held that the land in
dispute was not part of Inam and that event if it was so, there was no valid ,.
C confirmation of grant of the land in dispute by the civil administrator and
consequently no title had passed to the vendor of the appellant and hence
no title was obtained by the appellant. Consequently, the appellant was a
land grabber. It also rejected the claim of the appellant that he had
perfected his title by adverse possession. Accordingly, it directed the
appellant to restore possession of the land to the Government in terms of
D the decree.
Assailing the order of Special Court, the appellant filed a writ
petition which was dismissed by a Division ,Bench of the High Court and
the decree passed by the Special Court was upheld.

E In appeal to this Court it was contended on behalf of the appellant
that (i) the Special Court has no jurisdiction to try the case; (ii) appellant
could not be held to be a land grabber as his possession was alleged to be
permissive by the respondent-Government and he was found to have prima
facie bona fide claim to the property in dispute by the High Court while
setting aside the order of eviction passed against the appellant; (iii) the
F High Court in the Writ Petition filed by the appellant challenging the
validity of the notice of eviction under the Land Encroachment Act, gave
liberty to the first respondent-Government to establish its title in Civil
Court, which was also confirmed by the Division Bench in the writ appeal
filed by the first respondent, although before the date of the disposal of
the writ appeal the Act had come into force on September 6, 1982, the
G respondent-Government did not seek liberty from the Court to approach
the Special Court, therefore, on the principle of "might and ought", it was
barred from approaching the Special Court and the proceeding before the •·
Special Court was barred by the principle of res judicata; (iv) the appellant
who has been in possession of the land since 1954, on the basis of an
H unregistered agreement for perpetual lease perfected his title by adverse
i
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. 655
possession; (v) possession in assertion of one's own title was animus of A
adverse possession and that passing an adverse order against the appellant
or the appellant himself filing an application to any statutory authorities
for occupancy certificate would not interrupt his adverse possession of the
land in dispute; (vi) even if the point of adverse possession is found against
the appellant, the principle of lost grant would apply as he has been in
possession of the land in dispute for a considerable length of time under B
an assertion of title; (vii) though perpetual lease agreement was registered
on December 12, 1957, yet it would relate back to the date of agreement
November 28, 1954 and (viii) in effect the suit of the first respondent-
Government being a suit for declaration of title and ejectment of the
appellant from the land in dispute, it ought to have been dismissed as the C
first respondent should succeed on the strength of its own title and it
cannot take advantage of the defects in the title of the appellant to the
land in dispute.

Dismissing the appeal, the Court
D
HELD : 1. The view of the High Court approving the view taken by
r
the Special Court that the appellant falls within the mischief of the
definition of the expression "land grabber" under the A.P. Land Grabbing
(Prohibition) Act, 1982 is sustainable. [700-Hl

2. A combined reading of the provisions contained in Sections 7, 8 E
1 and 15 of the Act leads to the conclusion that the jurisdiction of Civil Court
under Section 9 of the Code of Civil Procedure and under the Civil Courts
Act is ousted and the 1982 Act which is special law will prevail and as
such the Special Court will have jurisdiction in respect of the matters dealt
with thereunder. (674-D-E)
F
Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., (1968)
3 SCR 662 and Sanwarmal Kejriwa/ Vishwa Cooperative Housing Society
Ltd, and Ors., (1990) 2 SCC 288, referred to.

3. The purpose of the Act is to identify cases involving allegation of
land grabbing for speedy enquiry and trial. The Courts under the Act are G
nonetheless Civil_Courts which follow Code of Civil Procedure and are
competent to grant the same relief which can be obtained from ordinary
-f Civil Courts. For the purpose of taking cognizance of the case the Special
Court is required to consider the location or extent or value of the land
alleged to have been grabbed or of the substantial nature of the evil
involved or in the icterest of justice required and to give an opportunity H
656 SUPREME COURT REPORTS [2002] I S.C.R.

A of being heard to the petitioner. (673-E-G)
4. The Special Court is a Civil Court having original as well as
appellate jurisdiction having all the trappings of a Civil Court and also
,.
Criminal Court having powers of the Court of Sessions to which the
provisions of the Code of Civil Procedure, apply. The Special Court can
B take cognizance of and try every case arising out of any alleged act of land
grabbing or with respect to the ownership and title to, or lawful possessions
of, the land grabbed and determine the ownership, title to, or lawful
possession of, the land alleged to have been grabbed whose decision will
be binding on all the person interested. More allegations ofland grabbing
is sufficient to invoke the jurisdiction of the Special Court either suo motu .,_
c or on application by any persons including any officer or authority. In
this view of the matter, there is no illegality in the conclusion arrived at
by the High Court in affirming the finding with regard to the jurisdiction
of the Special Court. [680-B-D)

5. Section 11 of the Code of Civil Procedure incorporates the
D principle of resjudicata which, in short, means a matter which had already
been adjudged judicially between the same parties. It bars a Court from
trying any suit in which the matter directly and substantially in issue has "'(

been directly and substantially in issue in a former suit between the same .
parties in a Court and has been heard and finally decided by such Court
E which is competent to try such subsequent suit or the suit in which such
issue has been subsequently raised. Explanation IV embodies the principle
of constructive res judicata and says that any matter which "might and
. '

ought" to have been made a ground of defence or attack in such former
suit shall be deemed to have been a matter directly and substantially in
issue in such suit. A conjoint reading of Section 11 and Explanation IV
F shows that a plea which might and ought to have been taken in the earlier
suit, shall be deemed to have been taken and decided against the persons
raising the plea in the subsequent suit. (677-F-H; 678-AJ

6. In this case the first respondent issued notice for eviction of the
appellant from the land on the ground that he was unauthorisedly in
G occupation of the Government land. As the appellant claimed title to the
land in dispute and thus the title of the first respondent to the land in
question was disputed, the High Court observed that the State could not ,,,._
resolve the issue of title in its favour and proceed under the Land
Encroachment Act. In view of the rival claims to the land in dispute the
H High Court granted liberty to the first respondent to establish its title in
,.,
'!-
KONDA LAKSHMANA BAPUJJ v. GOVT. OF A.P. 657
the competent Civil Court. It is true that on the date of disposal of the A
Writ Appeal, the Act had come info force and that fact was not brought
to the notice of the Division Bench of the High Court but there was no
.., -'
final adjudication on the question of rival claims of the parties to the title
of the land in dispute on merit in Writ Appeal by the Division Bench of
the High Court. Pursuant to the liberty granted to the respondent-
Government by a Single Judge of the High Court which was confirmed B
by the Division Bench a suit was in fact filed by the first respondent against
the appellant in the Court of the IV Additional Judge, City Civil Court
for declaration of title to and recovery of possession of the land in dispute.
The first respondent also invoked the jurisdiction of the Special Court

. under Sections 7 and 8 of the Act by filing a petition against the appellant. c
Therefore, the principles of constructive res judicata, on the ground that
the fact of enforcement of the Act on September 6,1982 was not brought
to the notice of the Division Bench of the High Court at the time of disposal
of the Writ Appeal, is not available to the appellant. Further, as a statutory
right is created in favour of the State under .the Act, to eradicate a public
mischief, it cannot be precluded from having recourse to the provisions D
of the Act by operation of the principle of "might and ought" in
.... Explanation IV of Section 11 CPC when its title or interest had not been
• finally determined by the High Court. [679-H; 680-A]

· Sha Shivaraj Gopalj"i v. Edappakath Avissa Bi and Ors. AIR., (1949)
E
PC 302, held inapplicable.

Ram Kirpal Shukul v. Rup Kuari II. I.A.37 All. 269 PC and Kewal Singh
v. Lajwanti, AIR (i980) SC 161, referred to.
,. 7. The activity of land grabbing of any land should not only be'
... F
without any lawful entitlement but should also be, inter alia with a view
to illegally taking possession of such lands. These two ingredients are found
agaiil~t the appellant. (700-El

8. Under the Act "land grabbing" is not only an actionable wrong
but also an offence and a "land grabber" is an offender punishable
G
thereunder. Mere allegation of an act of land grabbing is sufficient to
invoke the jurisdiction of the Special Court. In both Sections 7 and 8 of
~
~ the Act the phrase 'any alleged act of land grabbing' is employed and not
'act of land grabbing'. It is designedly done by the legislature to obviate
the difficulty of duplication of trial once in the Courts under the Act and
over again in the ordinary Civil Court. (680-E; 673-D-E) H
658 SUPREME COURT REPORTS [2002) I S.C.R.

A 9. Clause (c) of Section 2 defines the expression 'land grabbing". The
term "grabbing" is not defined in the Act. It is not a technical term or a
term of art, so it has to be understood in its ordinary common meaning. l
[681-G-H)

The term "grab" has a broad meaning-to take unauthorisedly,
B greedily or unfairly-and a narrow meaning of snatching forcibly or
violently or by unscrupulous means. Having regard to the object of the
Act and the various provisions employing that term, the term "grab" is
used in the Act in both its narrow as well as broad meanings. Thus
understood the ingredients of the expression "land grabbing" would
ccomprise of (i) the factum of an activity of taking possession of any land
forcibly, violently, unsrupulously, unfairly or greedily without any lawful •
entitlement; and (ii) the mensrea/intention-"with the intention of/with a
view to" (a) illegally taking possession of such lands or (b) enter into or
create illegal tenancies, lease and licences agreements or any other illegal
agreements in respect of such lands; or (c) to construct unauthorized
10 structures thereon for sale or hire; or (d) to give such lands to any person
on (I) rental or (ii) lease and licence basis for construction or (iii) use and
.;
occupation of unauthorised structures. (681-E-F)

New International Webster's Comprehensive Dictionary of the English
...
Language; Words and Phrases permanent edition, Vol, 18; Corpus Juris
E Secundum, Vol. 38 Concise Oxford Dictionary, referred to.

Smith v. Pure Oil Co., 128 S.W. 2d 931, 933, 278 Ky. 430, referred to

~
10. A combined reading of clauses (d) and (e) of Section 2 would
suggest that to bring a person within the meaning of the expression "land
F grabber" it must be shown that (i) (a) he has taken unauthorisedly,
unfairly, greedily, snatched forcibly, violently or unscrupulously any land
belonging to Government or a local authority, a religious or charitable
institution or endowment, including a wakf, or any other private person;
(b) without any lawful entitlement; and (c) with a view to illegally taking
tenancies or lease and licences agreements or any other illegal agreements
G in respect of such lands or to construct unauthorized structures thereon
for sale or hire, or given such lands to any person on rental or lease and
licence basis for construction, or use and occupation of unauthorized ... --
structures; or (ii) he has given financial aid to any persons for taking illegal
possession of lands or for construction of unauthorized structures thereon;
H or (iii) he is collecting or attempting to collect from any occupiers of such
1
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. 659
lands rent, compensation and other charges by criminal intimation; or (iv) A
he is abetting the doing of any of the above-mentioned acts; or (v) that he
is the successor-in-interest of any such persons. [683-C-F)

11. A plain reading of Section 10 of1982 Act would indicate that in
any proceedings under this Act-(i) where a land is alleged to have been
grabbed; and (ii) such land is prima facie proved to be the land owned by B
the Government or by a private person, the Special Court/Special Tribunal
shall presume that the person who is alleged to have grabbed the land is
a land grabber. When the presumption under Section 10 is drawn by the
Special Court/Special Tribunal, the burden or proving that the land has
~ not been grabbed by him is cast on the alleged land grabber. In view of C
the meaning of the words "shall presume" in Section 4 of the Indian
Evidence Act, the affect of raising resumption under Section 10 of the Act
would be that unless the alleged land grabber disproves that the land had
been grabbed by him, the Special Court/Special Tribunal shall regard that
the land in question, has been grabbed by the alleged land grabber.
(674-H; 675-A-BJ D
12. The requisite intention which is an important ingredient of the
land grabber, though not stated specifically, can be inferred by necessary
implication from the averments in the petition and the plaint and the
deposition of witness like any other fact. If a person comes into occupation E
of any Government land under the guise of a perpetual lease executed by
an unauthorized person having not title to or interest in the land it cannot
but be with a view to illegally taking possession of such land. (698-B)

13. From evidence on record, it is clear that the land in dispute was
not part of Maqta land. That land remained as Sarfekhas land and on F
merger of Sarfekhas in Diwani on February S, 1949, it became Government
land. Even assuming that it was part of regranted lnam land, on coming
into force of the lnam Act, it vested in the Government, Admittedly, neither
the lnamdar nor the appellant obtained occupancy certificate in respect
I of the land in dispute\under lnams Abolition Act. In support of the G
allegations in the petition and in the plaint, it has been categorically stated
that the appellant is a land grabber. Therefore, there is no hesitation in
endorsing the finding that 'A' had no title to the land in dispute and
consequently the appellant acquired no title to it. Thus it followed that the
appellant had unauthorisedly come into possession of the land in dispute
of the first respondent without lawful entitlement. [688-F-G] H
660 SUPREME COURT REPORTS [2002] I S.C.R.

A 14. It is generally true that in the absence of necessary pleadings in
regard to the ingredients of the definition of "land grabbing" no finding
can validly be recorded on the basis of the evidence even if such evidence
is brought on record. However, it is a settled position that if the parties
have understood the pleadings of each other correctly, an issue was also
B framed by the Court, the parties led evidence in support of their respective
cases, then the absence of a specific plea would make no difference. In
the instant case, the appellant has never pleaded before the Special Court
that necessary pleading in regard to the requirements of land grabbing is
lacking in the case. On the other hand, he understood the averments in
the petition read with the plaint correctly as allegations of land grabbing
C as can be seen from his affidavit containing objections to the Gazette
Notification dated April 1, 1992. (699-C-D; 700-A-B)

Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors.,
[1958) SCR 895; Nedumri Kameswaramma v. Sampatt Subha Rao, (1963) 2
SCR 208; Kali Prasad (Dead) by Lrs. and Ors. v. Mis. Bharat Coking Coal
D Ltd. & Ors., (1989) Suppl. 1 SCC 628 and Sardul Singh v. Pritam Singh and
Ors., (1999) 3 SCC 522, referred to.

15. The title of the first respondent to the land in dispute was upheld
de hors the weakness in the title of the appellant. On a careful perusal of
E the judgment of the Special Court on the question of title of the first
respondent and that of the appellant and his lessor-Inamdar, it is clear
that neither any relevant material was excluded from consideration nor
any irrelevant material was relied upon by the Special Court in recording
its finding. There was, therefore, no scope for the High Court to interfere
with those findings. The High Court committed no error of law in not
F interfering with the findings of the Special Court in regard to the title of
the first respondent and absence of title in the appellant to the land in
dispute. No interference is warranted by this Court in this appeal filed
under Article 136 of the Constitution of India. [689-C-E)

Omar Salay Moammed Sail v. Commissioner of Income-tax, Madras,
G
AIR (1959) SC 1238 and Mehar Singh and Ors. v. Shriomani Gurudwara
Prabandhak Committee, 120001 2 SCC 97, referred to.

16. In regard to the ingredients of the expression 'land grabber', it
is only when a person has lawful entitlement to the land alleged to be
H grabbed that he cannot be brought within the mischief of the said
KONDA LA KS HM ANA BAPUJI v. GOVT. OF A.P. 661
expression. A mere prima facie bona fide claim to the land alleged to be A
grabbed by such a person, cannot avert being roped in within the ambit
of the expression 'land grabber'. What is germane is lawful entitlement
to and not a mere prima facie bona fide claim to the land alleged to be
grabbed. Therefore, the observation of the Division Bench of the High
Court in 'the Writ Appeal that the appellant can be taken to have prima
facie bona fide claim to the land in dispute which was relevant for the said B
Land Encroachment Act cannot be called in aid as a substitute for lawful
entitlement to the land alleged to be grabbed, which alone is relevant under
the Act. (686-B-D)

17. A person claiming title by prescription must show that he has C
been in possession of the land for the statutory period which is adequate
in continuity in publicity and in extent with the animus of holding the land
adverse to the true owner. (694-F)

Balkrishan v. Satyaprakash & Ors., JT (2001) 2 SC 357 and S.M Karim
v. Mst. Bibi Sakina, AIR (1964) SC 1254, referred to. D
18. The question ofa person perfecting the title by adverse possession
is a mixed question of law and fact. The principle of law in regard to
,. adverse possession is firmly established. It is a well-settled proposition that
mere possession of the land, however long it may be, would not ripe into
possessory title unless the possessor has 'animus p,ossidendi' to hold the E
land adverse to the title of the true owner. It is true that assertion of title
to the land in dispute by the possessor would, in an appropriate case, be
sufficient indication of the animus possidendi to hold adverse to the title
of the true owner. But such an assertion of title must be clear and
unequivocal though it need not be addressed to the real owner. For
reckoning the statutory period to perfect title by prescription both the F
possession as well as the animus possidendi must be shown to exist. Where,
however, at the commencement of the possession there is no animus
possidendi, the period for the purpose of reckoning adverse possession will
commence from the date when both the actual possession and assertion
of title by the possessor are shown to exist. The length of possession to G
perfect title by adverse possession as against the Government is 30 years.
(690-C-E)

19. The possession of the disputed land from the date of Ex. B-39,
1954, till the date of the filing of the written statement in 1957 cannot be
treated as adverse because there was no animus possidendi during the said H
A
662 SUPREME COURT REPORTS [2002) I S.C.R.

period. Before the date of filing the written statement appellant never
' '

claimed title to the land in dispute adverse to the State.. On the other hand,
he paid siwai jamabandi and applied for occupation of rights. (695-D-E)
~
'-
20. There can be no doubt that passing of adverse order against the
appellant would not cause any interruption in has possession. So also filing
B of application before statutory authority under lnams Abolition Act for
occupancy rights ca!lses no interruption in the continuity of possession of
the appellant but it does abrogate his animus to hold the land in derogation
of the title of the State and breaks the chain of continuity of the animus.
Further there is nothing on record to show that his lessor 'A' ever claimed
c the land in dispute adverse to the State. On these facts there is no scope
to invoke the principle of tacking on the possession of the lnamdar or
.r

presumption of continuity of possession backward. [696-A; 695-G-H)
•

21. The appellant neither proved factum of possession of the land in
dispute for period of30 years nor succeeded in showing that he·had animus
D possidendi for the whole statutory period. Therefore, this Court cannot but
maintain the confirming view of the High Court that the appellant failed
to acquire title of the land in dispute by adverse possession. [696-BC)
-..-
22. The lessee of a Maqtedar (the Inamdar) cannot acquire title to
E the demised land by adverse possession either as against the State or the
Maqtedar (Inamdar) so long as his possession under the lease continues.
[696-C)

23. The appellant's submission that though (Ex. B-40) perpetual lease
agreement was registered on December 12, 1957 yet it would relate back
F to the date of (Ex. B-39) 28.11.1954 which would be the date of
commencement of possession, cannot be accepted. (Ex. B-39), unregistered
'>
perpetual lease agreement dated November 28, 1954 was not registered
subsequently. The perpetual lease deed dated 11.12.1957 is a different
document which was registered on 12.12.1957. Therefore, it would relate
back to the date of its execution i.e. 11.12.1957 on its subsequent
G registration on 12.12.1957 but not on the date of execution of Ex. B-39
i.e. 28.11.1954. [692-C; 692-G]

Thakur Kishan Singh (Dead) v. Arvind Kumar, [1994] 6 SCC 591,
disti'1guished.

H. Ram Saran Tall v. Mst. Domini Kuer, [1962) 2 SCR 474 and Nanda
/

• KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 663

Ba/labh Gururani v. Smt. Maqbol Begum. (1980) 3 SCC 346, referred to. A
24. Having regard to the absence of any material on record, all the
circumstances and the probabilities of the case, it is hard to believe that
at any time before or on the date of execution of the unregistered
agreement for perpetual lease the lessor of the appellant who had no title
to or interest in the land which was directed to be under the supervision B
of the GAD, was in possession of the land in dispute which was lying
vacant. (688-H; 689-A)

25. The principle of lost grant is a presumption which arises in cases
of immemorial user. It has its origin from the long possession and exercise
.~
of right by user of an easement with the acquiescence of the owner that C
there must have been originally a grant to the claimant which had been
lost. The presumption of lost grant is extended in favour of possessor of
land for a considerably long period when such user is found to be in open
assertion of title, exclusive and uninterrupted. However, when the use is
explainable, the presumption cannot be called in aid. In this case the D
appellant traces his possession from 1954 under an unregistered perpetual
....... lease from the erstwhile lnamdar (Maqtedar). Therefore, the presumption
of lost grant will not be available to him. 1696-E-F; 697-D)

Monohar Das Mohanta v. Charu Chandra Pal & Ors.. AIR (1955) SC
228, held inapplicable. E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2063 of
1999.

From the Judgment and Order dated 27 .10.98 of the Andhra Pradesh
High Court in W.P. No. 5332 uf 1993.
F
K. Parasaran, P. Niroop, Pavan Kumar, P.R. Tiwari and P. Vinay Kumar
for the Appellant.

Altaf Ahmad, Additional Solicitor General, Ms. K. Amreshwari, G.
Prabhakar and K. Ram Kumar, (NP) for the Respondents.
G
The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. This appeal, by special
leave, is from the Judgment of the Division Bench of the High Court of
Judicature, Andhra Pradesh at Hyderabad dated October 27, 1998 dismissing
Writ Petition No. 5332 of 1993, filed by the appellant assailing the order of H
\
664 SUPREME COURT REPORTS (2002] 1 S.C.R. •

A the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 (for
short, 'the Act') in L.G.C. No. 61 of 1990 dated April 16, 1993. The Special
Court had upheld the claim of the first respondent (the State of Andhra '
Pradesh represented by its Chief Secretary) that the appellant was a land
grabber of land of an extent of 2 acres 06 guntas, comprised in Survey Nos.
9/15 Paiki, 9/16 and 9/17 of Khairathabad Village, Golconda Manda!,
B Hyderabad District (for short, 'the land in dispute') and directed the appellant
to restore possession of that land to the first respondent in terms of the
decree.

To comprehend the controversy in the appeal it would be appropriate
C to set out the relevant facts. The appellant traces his title to the land in
dispute under an unregistered agreement for perpetual lease executed by one <c,

of the successors of the Inamdar, Mohd. Noorudin Asrari, in respect of the
Inam land in Survey Nos. 9115, 9116, 9/17 and 9/18, on November 28, 1954
(Ex. B-39). Later the said Asrari executed a registered perpetual lease deed
in favour of the appellant on December 11, 1957 (a certified copy is marked
D as Ex. B-40). Soon thereafter one Rasheed Shahpurji Chenoy had set up a
rival claim to the land in dispute by filing Original Suit No. 13 of 1958, in
the Court of the Additional Chief Judge, City Civil Court, Hyderabad, against
the first respondent, the appellant and others praying for declaration of title
to and recovery of possession of the said land. In that suit the learned
E Additional Chief Judge passed an interim order directing the parties to maintain
status quo in regard to the land in dispute. However, the appellant having
sought permission of the Court, constructed a building "Jala Drushyam" on
the land in dispute on his giving an undertaking that in the event of the
plaintiff therein succeeding in the suit, the building would be vacated by him,
leaving the structures intact, without claiming any compensation. On November
,p 11, 1975 the said suit of Rasheed Shahpurji Chenoy was dismissed recording >

the finding that he did not have any title to the suit land which was the
Government land (Ex. A-1).

It appears that as a follow up action of the minutes of the committee
G held in the Chamber of the Chief Secretary to the Government of Andhra
Pradesh, the Deputy Secretary, G.A.D. (O.P.LLL) by his letter dated September
14, 1959 (Ex. B-35) asked the Collector, inter alia, to declare the land situated
between the Secretariat and the Fisheries Department (which includes the
land in dispute) as the Government land. Thereafter on October 5, 1959, the
Collector passed order declaring Survey No. 9/15 paiki, 9/16, 9117, 9118 and
H 9119 admeasuring 19 acres 29 guntas as Government Land and informed the
KONDA LAKSHMANA BAPUJI v. GOVT, OF A.P. [S.S.M. QUADRI, J.l 665
Chief Secretary accordingly on October 20, 1959 (Ex. A-14 and Ex. B-34). A
On February 28, 1976, the Tehsildar, Hyderabad, Urban Taluk, noticing
that the appellant was in unauthorised occupation of Government land, issued
eviction notice calling upon him to vacate the land comprised in Survey No.
9115 paiki, 9/16 & 9/17 admeasuring 2 acres 28 guntas (Ex. B-38). Pursuant
to the said notice, an order of eviction was passed against the appellant on B
May 28, 1977 (Ex. B-58). That order was challenged by the appellant in Writ
Petition No. 1414 of 1977 in the High Court of Judicature, Andhra Pradesh
at Hyderabad. A learned single Judge of the High Court allowed the writ
1 petition on January 20, 1978 (Ex. A-3). Questioning that order, the first
respondent filed W.A. No. 61 of 1978 before the Division Bench. It would C
be relevant to note here that the Act came into force on September 6, 1982
but that fact was not brought to the notice of the Division Bench at the
hearing of the Writ Appeal. The Division Bench opined that there was bona
fide dispute of title to the land in dispute between the appellant and the
Government which must be adjudicated upon by the ordinary Court of law
and that the Government could not decide unilaterally in its own favour and D
resort to summary eviction proceedings under the Andhra Pradesh Land
... Encroachment Act, 1905 (for short, 'the Land Encroachment Act') and
dismissed the Writ Appeal on November 14, 1983 (Ex. A-4). The appellant
again filed Writ Petitbn 15724 of 1984 apprehending his dispossession from
the land in dispute. On June 16, 1986, a learned Single Judge of the High E
Court disposed of the Writ Petition taking note of the observations of the
Division Bench in the said Writ Appeal and the fact that the first respondent
had filed, O.S. No. 1497 of 1985 in the Court of the IV Additional Judge,
City Civil Court, Hyderabad for declaration of title and recovery of possession
of land in dispute on November 25, 1985.
F
In view of the provisions of sub-section (8) of Section 8 of the Act, the
said suit of the first respondent was transferred to the Special Court from the
Court of the IV Additional Judge. Though the order of the transfer of the suit
was challenged by the appellant in the High Court by filing civil revision
petition, it was later dismissed as not pressed. Be that as it may, the first
respondent filed an application invoking jurisdiction of Special Court for G
taking cognizance of the case and prayed that the plaint in the said suit be
-f. read as part of the application. Thereupon, the Special Court issued notification
for consideration of objections under the first proviso to sub-section (6) of
Section 8 of the Act in the Andhra Pradesh Gazette on April I, 1992. The
Special Court, after considering the objections filed by the appellant taking H
\
666 SUPREME COURT REPORTS (2002] I S.C.R.

A cognizance of the case, LGC No. 61 of 1990 (referred to in this judgment as
'the case'), tried the case as a civil suit. The parties were given opportunity
to lead evidence both oral and documentary. The first respondent examined
P.W. I and marked Exs.A-1 to A-48; the appellant examined himself as R.W.
I and marked Exs. B-1 to B-65. By consent of the parties Exs. X-1 to X-4
B (copies of various plans) were also marked. After considering the evidence
adduced by both the sides the Special Court decreed the case of the first
respondent on April 16, 1993 which was upheld by the Division Bench of the
High Court in the said W.P. No. 5332 of 1993 (filed by the appellant) by its
judgment and order dated October 27, 1998 which is under'challenge in this
appeal.
c Three main contentions were elaborated by Mr. K. Parasaran, the learned •.
senior counsel appearing for the appellant. His first contention is that the
appellant could not be held to be a land grabber as his possession was alleged
to be permissive by the first respondent and he was found to have primafacie
bona fide claim to the property in dispute by the High Court in Writ Petition
D No. 1414 of 1977 and Writ Appeal No. 61 of 1978. The second contention
is that the Special Court had no jurisdiction to try the case and the third
contention is that, in any event, the appellant had perfected his title to the
land in dispute by adverse possession.

E Mr. Altaf Ahmad, the learned Additional Solicitor General, appearing
for the first respondent, has argued that the questions whether the appellant
is a land grabber and whether he has title to the land in dispute or it is a
government land, were decided by the Special Court after trial and the appellant
had ample opportunity to establish his case; the appellant challenged the
order of the transfer of the suit from the Civil Court to the Special Court in >
F the High Court by filing a civil revision petition; he, however, did not press >
it. After the said questions were found against him by the Special Court,
submitted Mr. Ahmad, the appellant could not be permitted to challenge the
jurisdiction of the Special Court and they, being the findings of fact, are not
open to challenge in appeal filed under Article 136 of the Constitution.
G These contentions can conveniently be dealt with together. On the
contentions, urged before us, we find that the Special Court framed Issue
Nos. 3, 5 and 6 which are as follows:

"(3) Whether this Court has jurisdiction to entertain the suit as it
raises bona fide dispute of title?
H
/
KONDA LAKSHMANA BAPUJJ v. GOVT. OF A.P. [S.S.M. QUADRI, l.] 667
(5) Whether the respondent perfected title by adverse possession? A
(6) Whether the respondent is a land grabber within the meaning of
J the Act?"

It was held, on those issues, that the Special Court had jurisdiction to
try the case; the appellant did not prescribe title by adverse possession and B
that the appellant was a land grabber. The findings recorded by the Special
Court were approved by the High Court in the writ petition filed by the
appellant. The correctness of those findings are assailed in this appeal.

Before proceeding further, it is appropriate to determine the question of C
jurisdiction of the Special Court. On this question, it is noted above, Issue
No. 3 was framed and the Special Court held that it had jurisdiction. The
High Court after adverting to the relevant provisions of the Act, concluded:

"We find, therefore, in the totality of the situation and in view of the
specific provisions as laid down by the Act, the Special Court was D
within its jurisdiction to deal with the matter and to go into the case
as to whether there is any title involved in favour of the writ petitioner.
Incidentally, be it noted that the statute itself has equated the Special
~·
Court with that of a Civil Court with all the powers of the Civil
Court. Elaborate and detailed enquiry has been conducted by way of
a regular trial like any other civil suit, and like any other civil suit, E
evidence has been recorded and considered and the Special Court
came to a definite finding. Does it warrant intervention of the writ
court on the basis of the above? The answer cannot but be in the
negative."

Having regard to the principles laid down by a Constitution Bench of F
this Court in Dhulabhai & Ors. v. The State of Madhya Pradesh & Anr.,
[I 968] 3 SCR 662, it will be apt to advert to the scheme and the provisions
of the Act having a bearing on the question of jurisdiction of the Special
Court and Special Tribunal.

Section 178 of the Act provides that the schedule to the Act shall
G
constitute the guidelines for the inte1pretation and implementation of the Act.
We have perused the Schedule to the Act containing the Statement of Objects
and Reasons to the Andhra Pradesh Land Grabbing (Prohibition) Bill of 1982
as well as the Bill of 1987. The point that is sought to be made out in the
Schedule is that having regard to the increasing trend in grabbing the lands H
668 SUPREME COURT REPORTS [2002) I S.C.R.

A of the Government, local authorities, wakfs, charitable and religious
endowments, evacuees and private persons by unscrupulous and resourceful
persons forming a distinct class of economic offenders backed by wealth
without any semblance of right and having taken note of the delays in disposal
of civil and criminal cases in the regular Courts, the State Legislature felt that
unless all such cases of land grabbing are immediately detected and dealt
B sternly and swiftly by specially devised adjudicating forums the evil cannot
subside and social injustice will continue to be perpetrated with impunity.
The Act constituted a Special Court, having both the civil and criminal
jurisdiction, which consists of a serving or retired Judge of a High Court
(Chairman), a serving or retired District Judge and a serving or retired Civil
C Servant not below the rank of a District Collector (as members) to entertain
the cases in which the magnitude of the evil needs immediate eradication so
as to avoid duplication and to further the cause ofjustice. The Court of the
District Judge having jurisdiction over the area including Chief Judge, City
Civil Court, Hyderabad, is constituted as a Special Tribunal to try cases of
which cognizance was not taken by the Special Court in regard to any alleged
D act of land grabbing or with respect to ownership and title to or lawful
possession of the land grabbed on or after the commencement of the Act.
Against any judgment or order of the Special Tribunal (not being interlocutory
order) an appeal is provided to the Special Court on questions of both law 1
and fact. The Special Tribunal has only civil jurisdiction and the Code of
E Civil Procedure is applicable to the proceedings before it whereas the Special
Court has both the civil as well as the criminal jurisdiction to which the
provisions of Codes of Civil Procedure and Criminal Procedure apply. Both
the Special Court as well as the Special Tribunals have power to reject any
case brought before them if it is prima facie frivolous or vexatious. It is
provided that any case pending before any Court or other authority immediately
F before the commencement of the Act as would have been within the
jurisdiction of the Special Tribunal/Special Court, shall stand transferred to
the Special Tribunal/Special Court, as the case may be, as if the cause of
action on which such suit or proceeding is based, had arisen after such
commencement. If the Special Court is of the opinion that any case, brought
G before it, is not a fit case to be taken cognizance of, it may return the same
for presentation before the Special Tribunal. There is, however, no provision
that the case should be transferred back to the Civil Court if the final
determination by the Special Tribunal or by the Special Court results in
recording a finding that the occupation of the land by the respondent does not
amount to land grabbing. This is because statutorily the Special Court is a
H Civil Court having both original and appellate jurisdiction as well as a Court
J
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADR!, J.] 669
of Session for all practical purposes and the District Judge having jurisdiction A
over the area in which land is alleged to be grabbed is constituted as a
Special Tribunal.

It is apt to refer to the relevant provisions of the Act. Section 2 contains
definition of various tenns and expressions used in the Act. Section 3 of the B
Act which declares that land grabbing in any form is unlawful and any
activity connected with or arising out of land grabbing shall be an offence
punishable under the Act cannot be lost sight of. Section 4 of the Act ordains
that no person shall commit or cause to be committed land grabbing. It
' further declares that any person who, on or after the commencement of this
Act, continues to be in occupation, otherwise than as a lawful tenant, of a C
grabbed land belonging to the Government, local authority, religious or
charitable institution or endowment including a wakf, or other private person,
shall be guilty of an offence under the Act and on conviction the offence is
punishable with imprisonment for a tenn which shall mt be less than six
months but which may extend to five years, and with fine which may extend
to five thousand rupees. Likewise Section 5 of the Act provides penalty for D
other offences in connection with land grabbing. Offences by companies fall
within the ambit of the Act as provided in Section 6 of the Act.

It will be useful to read Sections 7 to I0 of the Act which deal with the
Special Court insofar as they are relevant for the present discussion. They are E
as under:
"7. Constitution of Special Courts :-

(!) The Government may, for the purpose of providing speedy
enquiry into any alleged act of land grabbing, and trial of cases F
in respect of the ownership and title to, or lawful possession of,
the land grabbed, by notification, constitute a Special Court.
(2) to (SC) ... ••• •••

(50) (i) Notwithstanding anything in the Code of Civil Procedure,
1908 (V of 1908) the Special Court may follow its own procedure G
which shall not be inconsistent with the principles of natural
justice and fair play and subject to the other provisions of this
Act and of any rules made thereunder while deciding the Civil
liability.
(5D)(ii) to (6) *** *** *** H
670 SUPREME COURT REPORTS [2002] I S.C.R.
•
A 8. Procedure and powers of the Special Courts :
(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
B land grabbed, whether before or after the commencement of this
Act, and pass such orders (including orders by way of interim
directions) as it deems fit;
(I-A) The Special Court shall, for the purpose of taking cognizance
of the case, consider the location, or extent or value of the land '
c 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 congnizance of
any such case without hearing the petitioner.
D
(2) Notwithstanding anything in the Code of Civil Procedure, 1908
the Code of Criminal Procedure, 1973 or in the Andhra Pradesh
Civil Courts Act, 1972, any case in respect of an alleged act of
land grabbing or the determination of question of title and
ownership to, or lawful possession of any land grabbed under
E this Act, shall be triable only in a Special Court constituted for
the area in which the land grabbed is situated; and the decision
of the Special Court shall be final.
(2-A) If the Special Court is of the opinion that any case brought
before it, is not a fit case to be taken congnizance of, it may )
)
F return the same for presentation before the Special Tribunal :

Provided that if, in the opinion of the Special Court, any
application filed before it is prima facie frivolous or vexatious,
it shall reject the same without any further enquiry :
Provided further that if on an application from an interested
G
person to withdraw and try a case pending before any Special
Tribunal the Special Court is of the opinion that it is a fit case
to be withdrawn and tried by it, it may for reasons to be recorded
in writing withdraw any such case from such Special Tribunal
and shall deal with it as if the case was originally instituted
H before the Special Court.
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRl, J.] 671
(2-B) Notwithstanding anything in the Code of Criminal Procedure, A
1973, it shall be lawful for the Special Court to try all offences
punishable under this Act.

(2-C) The Special Court shall determine the order in which the civil
and criminal liability against a land grabber be initiated. It shall
be within the discretion of the Special Court whether or not to B
deliver its decision or order until both civil and criminal
proceedings are completed. The evidence admitted during the
criminal proceeding may be made use of while trying the civil
liability. But additional evidence, if any, adduced in the civil
proceedings shall not be considered by the Special Court while C
determining the criminal liability. Any person accused of land
grabbing or the abetment thereof before the Special Court shall
be a competent witness for the defence and may give evidence
or oath in disproof of the charge made against him or any person
charged together with him in the criminal proceeding :
Provided that he shall not be called as a witness except on his D
own request in writing or his failure to give evidence shall be
made the subject of any comment by any of the parties or the
·- Special Court or give rise to any presumption against himself or
any person charged together with him at the same proceeding.

(3) to (5) *** *** ••• E
(6) Every finding of the Special Court with regard to any alleged act
of land grabbing shall be conclusive proof of the fact of land
grabbing and of the persons who committed such land grabbing,
and every judgment of the Special Court with regard to the
determination of title and ownership to, or lawful possession of, F
any land grabbed shall be binding on all persons having interest
in such land.
Provided that the Special Court shall, by notification, specify
the fact of taking cognizance of the case under this Act. Such
notification, shall state that any objection which may be received G
by the Special Court from any person including the custodian of
evacuee property within the period specified therein will be
considered by it;
Provided further that where the custodian of evacuee property
objects to the Special Court taking cognizance of the case, the H
672 SUPREME COURT REPORTS [2002] I S.C.R.

A Special Court shall not proceed further with the case in regard to
such property; Provided also that the Special Court sqall cause
a notice of taking cognizance of the case under the Act, served
on any person known or be~ieved to be interested in the land,
after a summary enquiry to satisfy itself about tlte persons likely
to be interested in the land.
B
(7) ...... ***

(8) Any case, pending before any Court or other authority
immediately before the constitution of a Special Court, as would
have been within the jurisdiction of such Special Court, shall
c stand transferred to the Special Court as if the cause of action on
which such suit or proceeding is based had arisen after the ..
constitution of the Special Court."
9. Special Court to have the powers of the Civil Court and the
Court of Session :-
D Save as expressly provided in this Act, the provisions of the Code of
Civil Procedure, 1908, the Andhra Pradesh Civil Courts Act, 1972
and the Code of Criminal Procedure, 1973, in so far as they are not
inconsistent with the provisions of this Act, shall apply to the
proceedings before the Special Court and for the purposes of the
E provisions of the said enactments, Special Court shall be deemed to
be a Civil Court, or as the case may be, a Court of Session and shall
have all the powers of a Civil Court and a Court of Session and the
person conducting a prosecution before the Special Court shall be
deemed to be a Public Prosecutor.

F "10. Burden of proof-Where in any proceedings under this Act, a
land is alleged to have been grabbed, and such land is prima facie
proved to be the land owned by the Government or by a private
person, the Special Court or as the case may be, the Special Tribunal
shall presume that the person who is alleged to have grabbed the land
is a land grabber and the burden of proving that the land has not been
G
grabbed by him shall be on such person."

Section 7 of the Act envisages constitution of Special Courts. Sub-
section (I) of Section 7 enables the Government to constitute a Special Court
for the purpose of providing speedy enquiry into any alleged act of land
H grabbing and trial of cases in respect of the ownership and title to, or lawful
KONDA LAKSHMANA BAPUJ! v. GOVT. OF A.P. (S.S.M. QUADR!, J.) 673
possession of the land "grabbed" which in the context includes "alleged to A
have been grabbed". Clause (i) of sub-section (SD) enables the Special Court
to follow its own procedure which shall not be inconsistent with the principles
~ of natural justice and fair play subject, of course, to the other provisions of
the Act and the Rules made thereunder while deciding the civil liability.
Clause (ii) of sub-section (SD) of Section 7 provides that notwithstanding
anything contained in Section 260 or Section 262 of the Code of Criminal
B
Procedure, 1973 every offence, punishable under this Act, shall be tried in a
summary way and the provisions of Sections 263 to 265 (both inclusive) of
the said Code, shall apply to such trial. Section 8 of the Act specifies the
procedure and powers of the Special Court. Sul,-section (1) of Section 8
)
authorises a Special Court to take cognizance of and try every case arising c
out of any alleged act of land grabbing ei.ther suo motu or on application
made by any person, officer or authority. It has also the power to try every
case with respect to the ownership and title to, or lawful possession of the
land alleged to have been grabbed whether before or after the commencement
of the Act and pass such orders including interim orders as it deems fit.
D
It is pertinent to note that mere allegation of an act of land grabbing is
sufficient to invoke the jurisdiction of the Special Court. In both Section 7(1)
"" and Section 8( l) of the Act the phrase 'any alleged act of land grabbing' is
• employed and not 'act of land grabbing'. It appears to us that it is designedly
done by the legislature to obviate the difficulty of duplication of trial once E
in the Courts under the Act and over again in the ordinary Civil Court. The
purpose of the Act is to identify cases involving allegation of land grabbing
for speedy enquiry and trial. The Courts under the Act are nonetheless Civil
Courts which follow Code of Civil Procedure and are competent to grant the
same reliefs which can be obtained from ordinary Civil Courts. For the purpose
.j of taking cognizance of the case the Special Court is required to consider the F
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 and
to give an opportunity of being heard to the petitioner (sub-section (l-A). It
is plain that sub-section (2) opens with a non obstante clause and mandates
that notwithstanding anything in the Code of Civil Procedure, the Code of G
Criminal Procedure, or in the Andhra Pradesh Civil Courts Act, 1972, any
case in respect of an alleged act of land grabbing or the determination of
question of title and ownership to, or lawful possession of any land alleged
~
to have been grabbed under the Act, shall be triable only in a Special Court
constituted for the area in which the land grabbed is situated and the decision
of the Special Court shall be final. Sub-section (2B) specifically provides that H
674 SUPREME COURT REPORTS (2002] I S.C.R.

A notwithstanding anything in the Code of Criminal Procedure, 1973, it shall
be lawful for the Special Court to try all offences punishable under this Act.
It is left to the Special Court to determine the order in which the civil and
criminal liability against a land grabber be initiated. Sub-section (6) provides
that every finding of the Special Court with regard to any alleged act of land
B grabbing shall be conclusive proof of the fact of the land grabbing and of the
persons who committed such land grabbing and every judgment of the Special
Court with regard to determination of title and ownership to, or lawful
possession of, any land alleged to have been grabbed, shall be binding on all
persons having interest in such land. It contains three provisos but they are
not relevant for the present discussion. Sub-section (8) brings about automatic
C transfer of any case pending before any Court or authority immediately before
the constitution of a Special Court, as would have been within the jurisdiction
of the Special Court if the cause of action on which such suit or proceeding
is based, has arisen after the constitution of the Special Court. The provisions
of sub-section (2) of Section 8 which commences with a non obstante clause
D confer jurisdiction on the Special Court and Section 15 of the Act directs that
the provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force
or custom, usage or agreement or decree or order of a Court or any other
tribunal or authority. A combined reading of these provisions leads to the
conclusion that the jurisdiction of Civil Court under Section 9 of the Code
E of Civil Procedure and under the Civil Courts Act is ousted and the Act
which is special law will prevail and as such the Special Court will have
jurisdiction in respect of the matters dealt with thereunder. [See : Sanwarmal
Kejriwal v. Vishwa Cooperative Housing Society Ltd. and Ors., [1990] 2
sec 288.
F Section 9 provides, inter alia, that except as expressly provided in this
Act, the provisions of the Code of Criminal Procedure, insofar as they are not
inconsistent with the provisions of the Act, shall apply to the proceedings
before the Special Court and for purposes of the said Code, the Special Court
shall be deemed to be a Court of Session and shall have all the powers of
G Court of Session.

The discussion of the above provisions would be incomplete without
taking note of Section I 0 of the Act which is a procedural provision and
deals with burden of proof. A plain reading of this section would indicate
that in any proceedings under this Act - (i) where a land is alleged to have
H been grabbed; and (ii) such hmd is prima facie proved to be the land owned
/
j
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 675
by the Government or by a private person, the Special Court/Special Tribunal A
shall presume that the person who is alleged to have grabbed the land ·is a
_.,_ land grabber. When the presumption under Section 10 is drawn by the Special
"' Court/Special Tribunal, the burden of proving that the land has not been
grabbed by him is cast on the alleged land grabber. In view of the meaning
of the words "shall presume" in Section 4 of the Indian Evidence Act, the
effect of raising presumption under Section I 0 of the Act would be that B
unless the alleged land grabber disproves that the land has been grabbed by
him, the Special Court/Special Tribunal shall regard that the land in question
has been grabbed by the alleged land grabber.

' c
- It has been noticed above that O.S. No. 1497 of 1985 filed by the first
respondent in the Court of the IV Additional Judge, City Civil Court,
Hyderabad, was transferred to the Special Court in view of the provisions of
sub-section (8) of Section 8 of the Act. The order transferring the case from
the Civil Court to the Special Court was assailed by the appellant in the High
Court in a civil revision petition which was later dismissed as not pressed.
Irrespective of the answer to the question whether the order of transfer of the D
said suit from the Civil Court to the Special Court operates as issue estoppel
"' or not, it is plain that the validity of the order of transfer of the suit from the
• Civil Court to the Special Court was not urged before the High Court in the
writ petition (filed to challenge the judgment of the Special Court), out of
which this appeal arises, so the transfer of the suit cannot be allowed to be E
challenged in this appeal. Be that as it may, the following facts disclose that
de hors the transfer of the suit, the jurisdiction of the Special Court was
invoked by the first respondent under the Act.

The first respondent filed petition under sub-section (I) of the Section
,1 7 read with sub-section ( 1) of Section 8 of the Act before the Special Court F
on March 20, 1992 complaining of the alleged act of land grabbing and
praying the Court to declare the appellant as a land grabber and the structures
raised thereon by him as unauthorised and to order his eviction from the land
grabbed and deliver possession of the same. The Special Court issued
notification under Rule 7(1) of the Land Grabbing Rules, which was published
G
in the A.P. Gazette on April 1, 1992 which reads as follows :

..... NOTIFICATION BY HEADS OF DEPARTMENTS ETC. JUDICIAL
NOTIFICATIONS

LAND GRABBING CASES H
\
676 SUPREME COURT REPORTS (2002] I S.C.R.

A FORM·II (A)
See Rule 7(1)

NOTICE

In the Special Court under Andhra Pradesh Land Grabbing
B (Prohibition) Act, 3, R.K.R. Govt. Offices Complex; II Floor 'B'
Block Tank Sund Road; Hyderabad.

L.G.C. No. 61/90-The Special Court has taken cognizance of
the case filed by The State of Andhra Pradesh represented by the

c Collector, Hyderabad District, Hyderabad. It is alleged that the land
belonging to Government as specified in the schedule below is grabbed
by Sri Konda Laxman Bapuji, son of Bapuji, H. No. 6-1-2/J,
Khairatabad, near Tank Bund, Hyderabad.

The Schedule
D Name of the owner of the land • Government Village in which it is
located • Khairatabad village. Manda) District in which it falls ·
,..-
Golconda taluq, Hyderabad District.

SI. No. Sub-Division No. of the alleged land- 9/15 Paiki, 9/16 and 9/
17.
E
Extent of land • 2.06 Ac. Gunts.
Boundaries of the land :

North : Sy. No. 911, Hussainsagar Tank
F South : Sy. No. 37, Fisheries Department Building and Road.
..
~

East : Land of Smt. Laxmi Gunti.

West : Open Land of Sy. Nos. 9116 part and 9/18 part.

Notice is hereby given to whomsoever it may concern including
G
the custodian of evacuee property concerned as required under the
first proviso to sub-section (6) of section 8 of the Andhra Pradesh
Land Grabbing (Prohibition) Act, 1982 (A.P. Act 12of1982). If any
person intends to object, he may submit his objections, if any, before
the Special Court on or before the 15th day of April, 1992 for its
H consideration.
_I
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.J 677
If no objections are received by the Special Court within the A
stipulated time it will be- presumed that there are no objections for

.. ~ proceeding further and the case will be proceeded accordingly.

P.V. Raman Rao,
Registrar
Special Court B
A.P. Land Grabbing (Prohibition) Act
Hyderabad."
In response to the said notice the appellant filed his objections on April
' I 0, 1992. He denied the allegation of land grabbing but did not object to the
jurisdiction of the Special Court. After considering the objections, filed by c
the appellant, to the Special Court taking cognizance of the case numbered
as L.G.C. No. 61/90, the case was decided on the evidence adduced by the
parties before the Special Court.

In this context the following submission, pressed by Mr. Parasaran,
may be considered here. He argued that the High Court in the Writ Petition D
filed by the appellant challenging the validity of the notice of eviction under
~
the Land Encroachment Act, gave liberty to the first respondent to establish
its title in Civil Court, which was also confirmed by the Division Bench in
the writ appeal filed by the first respondent; although before the date of the
disposal of the writ appeal the Act had come into force on September 6,
E
1982, the first respondent did not seek liberty from the court to approach the
Special Court, therefore, on the principle of "might and ought" he was barred
from approaching the Special Court and the proceeding before the Special
Court was barred by the principle of res judicata. Section 11 of the Code of
Civil Procedure incorporates the principle of res judicata which, in short,
.,-1
means a matter which has already been adjudged judicially between the same F
parties. In substance, Section 11 bars a court from trying any suit in which
the matter directly and substantially in issue has been directly and substantially
in issue in a former suit between the same parties in a court and has been
heard and finally decided by such court which is competent to try such
subsequent suit or the suit in which such issue has been subsequently raised.
Eight Explanations are appended to it. We are concerned with Explanation
G
IV which embodies the principle of constructive res judicata and says that
any matter which "might and ought" to have been made a ground of defence
or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit. A conjoint reading of Section 11 and
Explanation IV shows that if a plea which might and ought to have been H
\.
678 SUPREME COURT REPORTS (2002] I S.CR.

A taken in the earlier suit, shall be deemed to have been taken and decided
against the person raising the plea in the subsequent suit.

Mr. Parasaran relied upon the judgment of the Privy Council in Sha
Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR (I 949) PC 302. In that
B ·case, the appellant filed second execution petition and sought to attach the
right, title and interest of the respondent in the properties on the basis of the
Mappilla Marumakkattyam Act, 1938 (Act of 1938). A Division Bench of
the High Court of Madras referred to the contention urged in subsequent
proceedings at the stage of appeal that the assignee-decree-holder could
proceed against the tavazhi properties under the said Act was not dealt with
C on merits in those proceedings and held that that was a point which the
appellant could have raised in his petition in the earlier proceedings and he
failed to do so and, therefore, the dismissal of the earlier execution petition
filed in 1940 operated as res judicata in the subsequent case. While approving
the said conclusion of the High Court, the Privy Council observed :

D "Apart from the provisions of Section 11, Civil P.C. it would be
contrary to principle (see Ram Kirpal Shukul v. Rup Kuari, 11 I.A.37:
(6 ALL. 269 PC), to allow him in fresh proceedings to renew the
same claim viz., that the properties in question were properties of the
respondents liable to attachment or, as he would now put it, that the
respondents had severable interests in the properties which are liable
E to attachment, merely because he neglected at the proper stage in
previous proceedings to support that claim by an argument of which
he now wishes to avail himself."

It may be noticed that in that case there was final determination of the rights
F of th~ parties in the first execution petition in which the plea of executability
of the decree against the right, title and interest of the respondents by virtue
Qf Act of 1938 was available but was not urged. In the instant case, there has
been no final determination of the rights of the parties in regard to their title
to the land in dispute in the writ proceeding.

G The principle that to attract the provisions of Section 11, C.P.C., there
must be a final adjudication of the matter between the parties in earlier suit
or proceeding is too well-settled to need elaboration. The same principle
applies to constructive res judicata. In Kewal Singh v. Lajwanti, AIR ( 1980)
SC 161 this Court held :

H " ......... as regards the question of constructive res judicata it has no
j
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 679
application whatsoever in the instant case. It is well settled that one A
of the essential conditions of res judicata is that there must be a
formal adjudication between the parties after full hearing. In other
words, the matter must be finally decided between the parties. Here
also at a time when the plaintiff relinquished her first cause of action
the defendant was nowhere in the picture, and there being no B
adjudication between the parties the doctrine of res judicata does not
apply."

It may be recalled that in this case the first respondent issued notice for
eviction of the appellant from the land in dispute (under the Land
Encroachment Act) on the ground that he was unauthorisedly in occupation C
of the Government land. As the appellant claimed title to the land in dispute
and thus the title of the first respondent to the land in question was disputed,
the High Court observed that the State could not resolve the issue of title in
its favour and proceed under the Land Encroachment Act. In view of the
rival claims to the land in dispute the High Court granted liberty to the first
respondent to establish its title in the competent Civil Court. It is true that on D
the date of disposal of the Writ Appeal No. 61 of 1978 (14.11.1983) the Act
had come into force and that fact was not brought to the notice of the Division
Bench of the High Court but there was no final adjudication on the question
of rival claims of the parties to the title of the land in dispute on merit in Writ
Appeal by the Division Bench of the High Court. Pursuant to the liberty E
granted to the first respondent by the learned Single Judge which was
confirmed by the Division Bench the aforementioned suit, O.S. No. I497 of
1985, was in fact filed by the first respondent against the appellant in the
Court of the IV Additional Judge, City Civil Court for declaration of title to
and recovery of possession of the land in dispute. The first respondent had F
thus acted in accordance with the liberty granted to it by the High Court. It
is by operation of law, under sub-section (8) of Section 8 of the Act, the said
suit stood transferred to the Special Court. The first respondent also invoked
the jurisdiction of the Special Court under Sections 7 and 8 of the Act by
filing a petition against the appellant. For the reasons, stated above the
principle of constructive res judicata, on the ground that the fact of enforcement G
of the Act on September 6, 1982 was not brought to the notice of the Division
Bench of the High Court at the time of disposal of the Writ Appeal, is not
available to the appellant. Further, as a statutory right is created in favour of
the State under the Act, to eradicate a public mischief, it cannot be precluded
from having recourse to the provisions of the Act by operation of the principle H
680 SUPREME COURT REPORTS [2002) I S.C.R.

A of "might and ought" in Explanation IV of Section 11 C.P.C. when its title
or interest had not been finally determined by the High Court. For these
reasons, we cannot accept the contention of the learned senior counsel.

The upshot of the above discussion is that the Special Court is a Civil
Court having original as well as appellate jurisdiction having all the trappings
B of a Civil Court and also a Criminal Court having powers of the Court of
Sessions to which the provisions of the Code of Civil Procedure, the A.P.
Civil Courts Act and the Code of Criminal Procedure, apply. The Special
Court can 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
C possession of, the land grabbed and determine the ownership, title to, or
lawful possession of the land alleged to have been grabbed whose decision
will be binding on all the persons interested. Mere allegation of land grabbing
is sufficient to invoke the jurisdiction of the Special Court either suo motu
or on application by any person including any officer or authority. In this
D view of the matter, we find no illegality in the conclusion arrived at by the
High Court in affirming the finding with regard to the jurisdiction of the
Special Court.

Now, adverting to the remaining two contentions, it is important to note
that under the Act "land grabbing" is not only an actionable wrong but also
E an offence and a "land grabber" is an offender punishable thereunder. The
definitions of the expressions "land grabber" and "land grabbing", in clauses
(d) and (e), respectively, of Section 2 of the Act, apply to both civil and
criminal proceedings. It is, therefore, essential to construe the definitions of
the said expressions strictly. We shall first examine the relevant provisions of
the Act and then the case set up by the first respondent against the appellant
F before the Special Court to describe him as a land grabber.
Clauses (d) and (e) of Section 2 of the Act may be quoted here :
"2. Definitions : - In this Act, unless the context otherwise requires,-
(d) "land grabber" means a person or a group of persons who commits
G
land grabbing and includes any person who gives financial aid to any
person for taking illegal possession of lands or for construction of
unauthorised 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
H mentioned acts; and also includes the successors in interest;
I
KONDA LAKSHMANA BAPUJI v. GOVX. OF A.P. [S.S.M. QUADRI, J.] 681

(e) "land grabbing" means every activity of grabbing of any land A
(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 a 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 licences B
agreements or any other illegal agreements in respect of such lands,
or to construct unauthorised 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 unauthorised structures; and
the terms "to grab land" shall be construed accordingly;"

A perusal of clause (d) shows that the expression "land grabber" takes
c
in its fold : (I) a person or a group of persons who commits land grabbing;
(2) a person who gives financial aid to any person for - (a) taking illegal
possession of the lands, or (b) construction of unauthorised structures thereon;
(3) a person who collects or attempts to collect from• any occupiers of such
lands rent, compensation and other charges by criminal intimidation; (4) a D
person who abets the doing of any of the above mentioned acts; and (5) the
successors in interest of such a person. Among these five categories, the first
• category is relevant for the present discussion-a person or a group of persons
who commits land grabbing.

Clause (e) of Section 2, quoted above, defines the expression "land E
grabbing" to mean : (1) 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; (2) such grabbing must be : (i) without any
lawful entitlement and (ii) with a view to : (a) illegally taking possession of p
r such lands; or (b) to enter into or create illegal tenancies, lease and licences
agreements or any other illegal agreements in respect of such lands; or (c) to

.. construct unauthorised structures thereon for sale or hire; or (d) to give such
lands to any person on (i) rental or (ii) lease and licence basis for construction,
or (iii) use and occupation of unauthorised structures.
G
Inasmuch as the afore-mentioned expressions are defined employing
the term "grabbing", it is necessary to ascertain the import of that term. It is
not defined in the Act. It is not a technical term or a term of art so it has to
be understood in its ordinary common meaning.

The meaning of the term "grab" in the New International Webster's H
\
682 SUPREME COURT REPORTS [2002] I S.C.R.

A Comprehensive Dictionary of the English Language, is given as follows :
"To grasp or seize forcibly or suddenly; to take possession of violently
or dishonestly; to make a sudden grasp. See synonyms under grasp
• (i) The act of grabbing, or that which is grabbed. (ii) A dishonest
or unlawful taking possession or acquisition (iii) An apparatus for
B grappling."

In Words and Phrases, permanent edition, Vol. 18, the meaning of
"grab" is noted as under :

"The word "grab" means an act or practice of appropriating
c unscrupulously, as in politics. Smith v. Pure Oil Co., 128 S.W. 2d
931, 933, 278 Ky. 430.

The word "grab" means a seizure or acquisition by violent or
unscrupulous means. Smith v. Pure Oil Co., 128 S.W. 2d 931, 933,
278 Ky. 430.
D
The word "grab" means to seize, grasp, or snatch forcibly or
suddenly with the hand, hence to take poss~ssion of suddenly,
violently, or dishonestly. Smith v. Pure Oil Co., 128 S.W. 2d 931,
933, 278 Ky. 430." •
E Corpus Juris Secundum, Volume 38, records the meaning of the term "grab"
thus :

"As a verb, to seize, grasp or snatch forcibly or suddenly with the
hand, hence to take possession of suddenly, violently, or dishonestly."

F In Concise Oxford Dictionary, the following meanings of the word "grab"
are noted :

"A seize suddenly; capture, arrest; take greedily or unfairly; attract
the attention of, impress; make a sudden snatch at; intr. (of the brakes
of a motor vehicle) act harshly or jerkily. - n. (i) a sudden clutch or
G attempt to seize; (ii)a mechanical device for clutching."

The various meanings, noted above, disclose that the term "grab" has
a broad meaning - to take unauthorisedly, greedily or unfairly - and a narrow
meaning of snatching forcibly or violently or by unscrupulous means. Having
regard to the object of the Act and the various provisions employing that
H term we are of the view that the term "grab" is used in the Act in both its
J
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 683
narrow as well as broad meanings. Thus understood the ingredients of the A
expression "land g_rabbing" would comprise of (i) the factum of an activity
1. of talcing possession of any land forcibly, violently, unscrupulously, unfairly
or greedily without any lawful entitlement and (ii) the mens rea/intention -
"with the intention of/with a view to" (a) illegally taking possession of such
lands or (b) enter into or create illegal tenancies, lease and licences agreements B
or any other illegal agreements in respect of such lands; or ( c) to construct
unauthorised structures thereon for sale or hire; or (d) to give such lands to
any person on (i) rental or (ii) lease and licence basis for construction, or (iii)
use and occupation of unauthorised structures.

A combined reading of clauses (d) and (e) would suggest that to bring C
a person within the meaning of the expression "land grabber" it must be
shown that : (i) (a) he has taken unauthorisedly, unfairly, greedily, snatched
forcibly, violently or unscrupulously any land belonging to government or a
local authority, a religious or charitable institution or endowment, including
a wakf, or any other private person; (b) without any lawful entitlement; and
(c) with a view to illegally talcing possession of such lands, or enter or create D
illegal tenancil.s or lease and licences agreements or any other illegal
agreements in respect of such lands or to construct unauthorised 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 unauthorised
structures; or (ii) he has given financial aid to any person for talcing illegal E
possession of lands or for construction of unauthorised structures thereon; or
(iii) he is collecting or attempting to collect from any occupiers of such lands
rent, compensation and other charges by criminal intimation; or (iv) he is
abetting the doing of any of the above-mentioned acts; or (v) that he is the
successor-in-interest of any such persons.
F
It must be borne in mind that for purposes of taking congnizance 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 it is necessary to find that the allegations
satisfying the requirements of land grabbing are proved. G

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 H
684 SUPREME COURT REPORTS (2002] I S.C.R.

A 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, summarised above. ¥

What needs to be looked into in the present controversy is : whether the
appellant has any lawful entitlement (proprietory or possessory) to the land
B in dispute and had come into pos·;ession of the land in dispute unauthorisedly.
Here, we may note the contention of Mr. Parasaran that in effect the suit of
the first respondent-plaintiff, being a suit for declaration of title and ejectment
of the appellant from the land in dispute, it ought to have been dismissed; the
first respondent should succeed on the strength of its own title and it cannot •
C take advantage of the defects in the title of the appellant to the land in
dispute. We may notice the case set up by the parties in their pleadings and
the documentary and oral evidence adduced by them.

The case of the first respondent stated in the concise statement enclosed
to the application filed before the Special Court on March 20, 1992 and as
D contained in the plaint filed in the Court of the IV Additional Judge, City
Civil Court, Hyderabad (O.S. No. 1497 of 1985) is as follows : the first
respondent is the absolute owner of the land of an extent of 2 acres and 6
guntas in Survey Nos. 9/15 paiki, 9/16 and 9/17, forming part of the Hussain •
Sagar Tank Bund land, situated at Khairatabad village, Hyderabad Dist.,
E Hyderabad, thel'.e were wrong entries in the record of rights which were
corrected by the Collector on October 5, 1959. It is stated, alternatively, if the
land in dispute formed part of the Inam land the same had vested in the first
respondent with effect from July 20, 1955, the date of vesting as per Section
3 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 (Act No. 8 of
1955) (for short, 'the loams Act'). None of the heirs of the alleged lnamdar
F appeared before the Collector, Hyderabad Distt., Hyderabad, for claiming
registration as occupants under Section I0 of the said Act. The land in dispute,
it is noted, was shown as Maqta land belonging to Naimatullah Shah for

G
some time and thereafter as lnam land and the appellant claimed to be the
lessee of Mohd. Nooruddin Asrari, one of the successors to the said Maqta;
he occupied the said land in the year 1958 or so and raised a building known
-
as "Jala Drushyam". The claim of the appellant was not proper, valid and
legal because the land never belonged to the said Maqta; even otherwise it
vested in the Government with effect from the said date and the order of the
Collector, correcting entries in the record of rights, had become final. The
plaint refers also to the facts that the land in dispute was the subject matter
H of O.S. No. 13 of 1958 on the file of the Additional Chief Judge, City Civil
J
KONDA LAKSHMANA BAPUJ! v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 685
Court, Hyderabad, filed by one Rasheed Shapurji Chenoy, which was dismissed A
holding that it was Government land. On giving an undertaking in the said
suit, the appellant with the pennission of the Court constructed the said house
"Jala Drushyam" and, therefore, the possession of the appellant partakes the
character of pennissive possession. After the dismissal of the suit the first
respondent issued notice of eviction to the appellant under Section 6 of the B
Land Encroachment Act, on the ground that he was in unauthorised occupation
of land in dispute, but the notice was quashed in the writ petition filed by the
appellant and that order was upheld in writ appeal giving liberty to the first
respondent to establish its title in a Civil Court. The first respondent sought
)
from the Special Court the following reliefs : to declare the appellant a land
grabber and to restore possession of the land grabbed by him. C

The ca5e of the appellant was that the land in dispute was part of
Sarfekhas land and that after Inam Inquiry, ordered by H.E.H. the Nizam,
Muntakhab was issued in favour of the lnamdar (Maqtedar) and thereafter
succession was granted in favour of his vendor (lessor). It was also stated in
the written statement that the appellant has been in possession of the land D
from November 1954 and that before him his predecessors-in-title were in
possession for innumerable years as Inamdars, so he was entitled to tack their
possession for purposes of perfecting his title by adverse possession; even
• otheiwise from the date of his own coming into possession in 1954 he perfected
his title by adverse possession as against the first respondent. E
The Special Court has detennined that the occupation of the land in
dispute by the appellant is without any lawful entitlement and decided the
question of the ownership and title to and lawful possession of the land in
dispute on appreciating the evidence on record. It held, inter alia, that the
• land in dispute was not part of Inam and that even if it was so there was no F
valid confirmation of grant of the land in dispute by the civil administrator
under Ex. B-6 and consequently no title had passed under Ex. B-9 to the
vendor of the appellant and hence no title was obtained by the appellant
under Ex. B-40. Though the findings recorded by the Special Court in regard
to absence of lawful entitlement of the appellant to the land in dispute and G
upholding the title of the first respondent that it is a Government land, are
findings of fact which were not interfered with by the High Court in the Writ
Petition filed by the appellant, yet to satisfy ourselves, we have gone through
the depositions of PW 1 and RW 1 and perused the documentary evidence
in great detail; the original record is in Urdu. We find no valid reason to take
a different view of the matter and inasmuch as we are sustaining the said H
686 SUPREME COURT REPORTS (2002] I S.C.R.

A findings it is not necessary to re-do the whole exercise of discussing all the
evidence here. However, we shall refer to a few important documents and
aspects which clinch the issue.

In regard to the ingredients of the expression 'land grabber', it is
necessary to point out that it is only when a person has lawful entitlement to
B the land alleged to be grabbed that he cannot be brought within the mischief
of the said expression. A mere prim a 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. (

C Therefore, the obsP.rvation of the Division Bench of the High Court in the
said Writ Appeal No. 61 of 1978 that the appellant can be taken to have
prima facie bona fide claim to the land in dispute which was relevant for the
said Land Encroachment Act, cannot be called in aid as a substitute for
lawful entitlement to the land alleged to be grabbed, which alone is relevant
under the Act.
D
A copy of the statement of Maqta Enquiry (Ext. B-15) which is in Urdu
shows that the Maqta was granted by the Qutub Shahi rulers, which became
Sarfekhas property (private property of the Nizam) subsequently. In the Maqta
enquiry the Talukdar (Sarfekhas) recommended that Maqta be re-granted in
-
E favour of Mohd. Abdul Quadir and others (who were ancestors of the lessor
of the appellant). The location of the Maqta (which is referred to as, 'Maqta
Naimatullah Shah') was mentioned as adjacent to Hussain Sagar. Ex. A-20
is a copy of Munthkhab Statement of Inam Enquiry (Sarfekhas) bearing
execution No. 1050 dated 09.01.1327 Fasli. It shows that as per the letter of

F
Administrative Committee of Sarfekhas (Mubark) bearing No. 1185 dated
19.09.1326 Fasli, H.E.H. the Nizam had sai.~tioned confirmation of cash .-
grant and the Maqta excluding the land covered by graveyard and the King's
bungalow. It is also clear that the land which was appurtenant to the King's
bungalow was returned to Sarfekhas and it was subsequently directed to be.
sold for adequate price by H.E.H. the Nizam on 12.02.1343 Fasli. A perusal
G of Ex. A-26 lends support to the fact that the original Muntakhab No. 1050
of 1327 Fasli of Maqta Naimatullah Shah had excluded the King's bungalow
with the land and the graveyard while sanctioning the confirmation of Maqta
by H.E.H. the Nizam. It appears to us that a palace was constructed during
the lifetime ofH.E.H. the Niz.am VI which was referred to as King's bungalow
and which later came to be known as the Secretariat. The land between the
H Secretariat and the Hussain Sagar was part of the excluded land and was
j
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.) 687
lying vacant. It was the land of the Sarfekhas and in regard to that land A
various persons including predecessors-in-interest of the appellant made their
claims but all the claims were rejected by the then Sadarul Maham (Minister)
of Sarfekhas and it was directed that the land should be under the control and
protection of Babe Hukumat (GAD) and the Revenue Department was
specifically directed to supervise the same. That order was appealed against B
before Moaziz Committee of Sarfekhas (comprising of the Chief Justice and
two Hon 'ble Judges of the High Court of the then State of Hyderabad). The
Committee confirmed the said order of the Minister and dismissed the appeals
on Mehr 30, 1357 Fasli. Thus, it is abundantly clear that Survey Nos. 9/15
paiki, 9/16, 9/17, 9/18, 9/19 were not part of Maqta which was reconfirmed
in favour of the predecessors-in-interest of the appellant. They remained land C
of Sarfekhas (private estate of the Nizam) which merged in Diwani, that is
State Government, on 5.2.1949 (Ex. A-30). It is noted in Ex. B-20, letter
from Tehsil Taluk, Hyderabad West, addressed to the Collector, Hyderabad,
dated 27.07.1954 that Survey Nos. 9115, 9116, 9/17, 9/18 and 9/19 ofMaqta
Naimatullah Shah are situate in between the Secretariat and Hussain Sagar
Tank. That was also stated to by the appellant in his deposition. Inasmuch as D
the Maqta remained under attachment and in the possession of the Sarfekhas
during the period of Inam Enquiry an attempt was made to show that under
Ex. B-11, a letter dated 12.10.1356 Fasli (English translation Ex. B-12), the
Maqta was directed to be released in.favour of the Maqtadar. Ex. B-13 a
certified copy of the panchnama dated 02.11.1356 Fasli is filed to show that E
the land bearing Survey Nos. 9/2, 9/10, 9/12, 9115 and 9116 to 9/20 measuring
54 acres, was inspected and while Survey No. 9/17 and 9/18 measuring 7
acres and 7 guntas alone were retained in the Government possession the rest
of the Survey numbers were put in possession of the Inamdar. English
translation of Ex. B-13 is marked as Ex. B-14. Ex. B-15 English translation
is a certified copy of receipt dated 02.11.1356 Fasli which was filed to show F
that possession was taken by the Maqtadar. These documents were, however,
treated by the Special Court as spurious. The said documents are certified
copies and they are in Urdu. A careful reading of Ex. B-11 in Urdu and B-
12 (English translation) discloses that the recitals:

"Hence the Makhtha may be restored in favour of Syed Shah Mohd.
G
Wajihullah Hussain Asrari, Makhthedar of the Makhtha Niamathullah
Shah and after release and handing over a detailed compliance report,
should be sent along with the receipt"

are out of context with the other recitals therein. Such an important order H
688 SUPREME COURT REPORTS (2002] I S.C.R.

A directing delivery of possession of land, bearing S. Nos. noted above, which
was excluded from regrant of Maqta under Muntakhab, could not have been
directed to be delivered under Ex. B-11. In the ordinary course of event a
decision ought to be taken first and then only it would be communicated.
Such a decision should be in the tile. No order was filed in support of Ex.
B B-11. Further, the~ubject-matter of the letter dated 12.10.1356 Fasli (Exs. B-
l I and B-12) from the First Talukdar, District Atraf-e-Balda, Sarfekhas
addressed to the Tehsildar, Taluk West shows that the proceeding commenced
on the application for waiving the land revenue on the ground that the land
was under attachment and in the possession of the Government. It is strange
to note that in reply to an application to waive the land revenue the possession
C of the land was directed to be delivered by the first Taluqdar in his letter Ex.
B-11 dated 12.10.1356 Fasli (English translation Ex. B-12) and purported to
have been delivered under Exs. B-13 and B-14 dated 2nd Mehr 1356
(2.11.1356 Fasli) (wrongly noted in the English translation as 2.11.1355
Fasli), while the appeal in regard to the land of which the said S. Nos. are
D a part, was still pending before the Moaziz Committee. From Ex. A-27 it is
seen that the Moaziz Committee decided the appeal on Mehr 30, 1357
(30.11.1357 Fasli) after sending the said letter (Ex. B-11). These documents
are not originals. They are certified copies and, therefore, it is not possible
to make out whether the portion noted above as out of context, really formed ..
part of the letter as in the absence of the order including the said S. Nos. in
E the regrant directing delivery of possession, gives rise to lot of suspicion. We
say no more. For the aforementioned reasons, they do not inspire any
confidence to be accepted as correct. In view of these strong reasons we are
not persuaded to disagree with the view of the Special Court that they are
spurious documents. Thus, it is clear that the land in dispute was not part of
Maqta land. That land remained as Sarfekhas land and on merger of Sarfekhas
F in Diwani on February 5, 1949, it became Government land. Even assuming
that it was part of regranted Inam land, on coming into force of the lnams
Act, it vested in the Government. Admittedly, neither the lnamdar nor the
appellant obtained occupancy certificate in respect of the land in dispute
under loams Abolition Act. In support of the allegations in the petition and
G the plaint PW I has categorically stated that the appellant is a land grabber
and he was not cross-examined on that aspect. We have, therefore, no hesitation
in endorsing the finding that the said Mohd. Nooruddin Asrari had no title
to the land in dispute and consequently the appellant acquired no title to it.

Having regard to the absence of any material on record, all the
H circumstances and the probabilities of the case, it is hard to believe that at
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.l 689
any time before or on the date of execution of Ex. B-39 the lessor of the A
appellant who had no title to or interest in the land which was directed to be
under the supervision of the GAD, was in possession of the land in dispute
which was lying vacant.

It is relevant to note that as the decision of the Special Court on the
question of title to the land in dispute was not based on the order of the B
Collector contained in the letter dated October 5,1959 (Ex. A-14), the validity
of that order is inconsequential. We, therefore, do not propose to examine
that aspect. We may note here that the Special Court did not invoke the
presumption under Section 10 of the Act against the appellant. It is also
evident that the title of the first respondent to the land in dispute was upheld C
de hors the weakness in the title of the appellant.

On a careful perusal of the judgment of the Special Court on the question
of title of the first respondent and that of the appellant and his lessor-Inamdar
we are satisfied that neither any relevant material was excluded from
consideration nor any irrelevant material was relied upon by the Special D
Court in recording its finding. There was, therefore, no scope for the High
Court to interfere with those findings. In our view, the High Court committed
no error of law in not interfering with the findings of the Special Court in
regard to the title of the first respondent and absence of title in the appellant
to the land in dispute [See : Omar Salay Mohamed Sail v. Commissioner of
Income-tax, Madras, AIR (1959) SC 1238. On the conclusions arrived at by E
us no interference is warranted by this Court in this appeal filed under Article
136 of the Constitution of India. [See : Mehar Singh & Ors. v. Shiromani
Gurudwara Prabandhak Committee, [2000] 2 SCC 97.

To complete the discussion on the lawful entitlement, the appellant's
claim of title to the land in dispute by prescription remains to be examined. F
The contention of Mr. Parasaran is that the appellant, who has been in
possession of the land since 1954 on the basis of Ext. B-39 (an unregistered
agreement for perpetual lease), perfected his title by adverse possession as on
the date of the suit on November 25, 1985.
G
Mr. Altaf Ahmad, on the other hand, relied on the conduct of the
appellant to show that he had no requisite animus to possess the land in
dispute adverse to the title and interest of the first respondent and that the
essential requirements of adverse possession were not satisfied as neither the
appellant had the requisite animus nor he fulfilled the requirement of possession
of the land in dispute for the statutory period of 30 years; both the Special H
- 690 SUPREME COURT REPORTS [2002] I S.C.R.

A Court as well as the High Court concurrently held that the appellant did not
perfect his title to the land in dispute by adverse possession and that finding
would not be open to challenge in this appeal.

The Special Court, on the pleadings of the parties, framed issue No. 5
noted above. The onus of proving that issue is on the appellant who claims
B title by adverse possession.

The question of a person perfecting title by adverse possession is a
mixed question of law and fact. The principle of law in regard to adverse
possession is firmly established. It is a well-settled proposition that mere
possession of the land, however long it may be, would not ripe into possessory
C title unless the possessor has 'animus possidendi' to hold the land adverse to
the title of the true owner. It is true that assertion of title to the land in dispute
by the possessor would, in an appropriate case, be sufficient indication of the
animus possidendi to hold adverse to the title of the true owner. But such an
assertion of title must be clear and unequivocal though it need not be addressed
D to the real owner. For reckoning the statutory period to perfect title by
prescription both the possession as well as the animus possidendi must be
shown to exist. Where, however, at the commencement of the possession
there is no animus possidendi, the period for the purpose of reckoning adverse
possession will commence from the date when both the actual possession and
•
assertion of title by the possessor are shown to exist. The length of possession
E to perfect title by adverse possession as against the Government is 30 years.

The appellant (defendant) in his written statement averred that he was
claiming title under Mohd. Nooruddin Asrari who was successor of the original
lnamdar Sheik Naimatullah Shah. The land in dispute is a part of the maqta
F land which was in his possession from November 28, 1954 under an agreement
for perpetual lease which was confirmed under the registered lease deed
executed on December 11/12, 1957. He alleged that he constructed a small
structure in 1955 and thereafter, having taken due permission, constructed a
pucca building. He denied that the said land came in his possession in 1958
as alleged in the plaint. He stated that he had been in possession adverse to
G the plaintiff-the first respondent since November 28, 1954 for more than 30
years prior to the filing of the suit on November 25, 1985. It is further
averred that his predecessor-in-title being in possession of the said land for
innumerable years prior to 1954 in their own right as Inamdar, he is entitled
to tack on their possession to perfect his title by adverse possession.

H The first respondent-plaintiff, perhaps with a view to foreclose the plea
KONDA LAKSHMANA BAPUJJ v.GOVT.OF A.P. [S.S.M. QUADRl,J.] 69J

of adverse possession, stated in the plaint itself that the possession of the A
appellant-defendant could not amount to adverse possession for many reasons;
the appellant raised the building with the permission of the court while O.S.
No. 13 of 1958 filed by Rasheed Shahpurji Chenoy was pending before the
Additional Chief Judge, City Civil Court, Hyderabad, after giving an
undertaking and in view of the undertaking his possession partakes the B
character of permissive possession; he paid Siwaijama and applied for
occupancy certificate. The first respondent had instituted eviction proceeding
by issuing notice against the defendant under Section 6 of the Land
Encroachment Act.

To appreciate the plea of the first respondent that the appellant's C
possession of the land in dispute has the character of permissive possession
so he cannot acquire title by adverse possession, it will be appropriate to
refer to th;! averments in the plaint to understand their true import, which are
as follows :

"The suit lands in the beginning were open and vacant tank bed lands D
and the defendant raised the building "Jala Drushyam" with the
permission of the Court while 0.S. No. 13 of 1958 was pending
before the Court of the Additional Chief Judge, City Civil Court,
> Hyderabad, and the undertaking of the defendant given in the shape
of a bond, while seeking permission to construct the said building,
was to the effect that he would not claim any compensation from the E
plaintiff for the building raised on the suit-lands in case the same are
ultimately declared and held to be the Government lands ............ The
possession of the defendant in view of his undertaking in the above
suit partakes the character ofpermissive possession and in that view
of the matter also the defendant cannot claim adverse possession p
against the plaintiff. (emphasis supplied)" In the concise statement
filed along with the application dated March 22, 1992 before the
Special Court the first respondent stated :

"Pending O.S. No. 13 of 1958 the respondent herein (the appellant)
constructed a building Jala Drushyam. After the dismissal of the suit. G
The Government of A.P. initiated eviction proceedings. The possession
of the respondent (the appellant) in view of his undertaking given in
the Trial Court amounts to permissive possession. "

From the above averments, it is evident that permission was granted by the
Court to the appellant to construct the building 'Jala Drushyam'. Therefore, H
692 SUPREME COURT REPORTS [2002] I S.C.R.

A the said building could be said to be a construction with permission of the
Court and not unauthorised. But certainly the appellant's possession of the
land in dispute, if otherwise adverse to the title of the first respondent, does
not acquire the character of permissive possession on the ground the appellant
sought permission of the Court to erect a building thereon. We are, therefore,
of the view that the said averments cannot come in the way of the appellant
B in acquiring title by adverse possession if other requirements of adverse
possession are satisfied.

As to the period of the appellant's possession, Mr. Parasaran contended,
that though Ex. B-40 perpetual lease agreement was registered on December
C 12, 1957 yet it would relate back to the date of Ex. B-39 (28.l l.1954) which
would be the date of commencement of possession. He sought to derive
support from Thakur Kishan Singh (Dead) v. Arvind Kumar, [1994] 6 SCC
591. We cannot accept the submission as a correct proposition of law. In that
case the lease deed was executed on 5.12.1949 but it was registered on
30.3.1950. On that factual background this Court held :
D
"Section 47 of the Registration Act provides that a registered document
shall operate from the time it would have commenced to operate if
no registration thereof had been required or made and not from the
time of its registration. It is well established that a document so long •
it is not registered is not valid yet once it is registered it takes effect
E from the date of its execution. (See : Ram Saran Lall v. Mst. Domini
Kuer, [1962] 2 SCR474 and Nanda Bal/abh Gururani v. Smt. Maqbol
Begum, [ 1980] 3 SCC 346. Since, admittedly, the lease deed was
executed on 5.12.1949, the plaintiff after registration of it on 3.4.1950
became owner by operation of law on the date when the deed was
F executed."

In the instant case Ex. B-39 (unregistered perpetual lease agreement dated
.November 28, 1954) was not registered subsequently. Ex. B-40 the perpetual
lease deed dated l l.12.1957 is a different document which was registered on
12.12.1957. Therefore, Ex. B-40 would relate back to the date of its execution
. G i.e. l l.12.1957 on its subsequent registration on 12.12.1957 but not on the
date of execution of Ex. B-39 i.e. 28.l l.l 954. The Principle laid down in the
above case is, therefore, of no benefit to the appellant. .

The Special Court found that the appellant's possession could not be
ascribed to the date of the agreement for lease deed dated 28. l l.1954 (Ex.
H B-39) or registered lease deed dated" I l.12.1957 (Ex. B-40) which were
J
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.) 693

excluded from consideration. In regard to Ex. B-39 the Special Court held A
that it was a tampered document; the survey numbers of the land leased were
given in it as Survey Nos. 9/15 and 9/17 which were altered to appear as
Survey Nos. 9/15 to 9/18 and the extent of the land was not mentioned
therein. The Special Court noted that in the absence of original of Ex. B-40,
it was not possible to say whether Ex. B-40 also suffered from the same vice B
of subsequent alteration in the survey numbers, therefore, it declined to rely
on Ex. B-40 also. In view of the criticism of the Special Court we perused
the Urdu documents Ex. B-39 and Ex. B-40 Survey Nos."9/15 and 9/17" (Ex.
B-39) were altered to appear as "9il5 to 9/18''. This is visible to the naked
eye. The alteration was not authenticated so the criticism of the Special Court
is well-founded. It is also noticed that the original of Ex. B-40 was not filed C
in the Court and no case is made out to lead secondary evidence. Further in
Exs. B-13 and B-14 (which are discussed above) it is specifically mentioned
that S. Nos. 9/17 and 9/18 which were selected for the offices of the Secretariat
were retained with the Government. If that be so, it remained unexplained as
to how the appellant obtained the said S.. Nos. on lease from the said D
Nooruddin. This clearly shows the contradiction in the claim of the appellant
which makes it unacceptable. After excluding the said documents from
consideration the Special Court held that the solitary statement of the appellant
that his adverse possession commenced from November 28, 1954, could not
be accepted to hold that he has been in continuous possession for a period E
of 30 years as no receipt of payment of rent (nuzul) under the perpetual lease
agreement Ex. B-39 was filed to prove that the appellant has been in possession
of the said land from November 28, 1954. The Special Court counted the
period of possession of the land in dispute from the date the appellant obtained
permission for construction of the house under Ex. B-42 dated 09.08.1958
and the preceding correspondence under Exs. B-60 to B-62 between March, F
1958 and August, 1958. Pointing out that the suit was filed on November 25,
1985, so the period of30 years was not completed from 1958, it rejected the
plea of adverse possession.

In regard to the a."limus of the appellant to possess the land in dispute G
adverse to the interest of the first respondent, the Special Court pointed out
that the appellant applied for occupancy certificate to the concerned authority
under the Inams Abolition Act which nullified the animus of adverse
possession. The Special Court also relied on Ex. A-42 (Ex. B-43) issued by
the State demanding siwai jamabandi on May 14, 1960 and payment of the
same under Exs. A-44 and A-45 dated June 30, 1960 to show that the requisite H
\
694 SUPREME COURT REPORTS (2002] 1 S.C.R.

A animus was Jacking. These documents were put to the appellant when he was
in the witness box and he admitted the same. On the basis of the above
evidence the Special Court came to the conclusion that the appellant failed
to prove adverse possession. In the said writ petition the High Court did not
find any illegality in the approach or decision of the Special Court and
B declined to interfere with the said finding.

We have already noted above the requirements of adverse possession.
In Balkrishan v. Satyaprakash & Ors., J.T. [2001] 2 SC 357, this Court held:

"The Jaw with regard to perfecting title by adverse possession is
c well settled. A person claiming title by adverse possession has to
prove three "nee" - nee vi, nee clam and nee precario. In other words,
he must show that his possession is adequate in continuity in publicity
and in extent. In S. M. Karim v. Mst. Bibi Sakina, AIR (1964) SC
1254 speaking for this Court, Hidayatullah, J. (as he then was) observed
D thus:

"Adverse possession must be adequate in continuity, in publicity
and extent and a plea is required at the least to show when
possession becomes adverse so that the starting point of limitation
against the party affected can be found."
E
In that case the requirement of animus possidendi v•as not adverted to as on
facts it was shown to be present; the controversy, however, was about the
other ingredient of adverse possession. It is clear that it must be shown by
the person claiming title by prescription that he has been in possession of the
F land for the statutory period which is adequate in continuity in publicity and
in extent with the animus of holding the land adverse to the true owner.

Mr. Parasaran, however, contended and reiterated in his written
submissions that possession in assertion of one's own title was animus of
adverse possession and that passing an adverse order against the appellant or
G the appellant himself filing an application to any statutory authorities for
occupancy certificate would not interrupt his adverse possession of the land
in dispute. It was also contended that as a derivative title holder he was
entitled to tack his possession to that of his predecessor-in-interest and that
in any event the presumption of the continuity of state of things backwards
H could also be drawn as the appellant's possession from 1958 was accepted
-J
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J.] 695
and the possession earlier to 1958 should also be presumed. A
Regarding the animus of the appellant, admittedly he claimed as a
lessee under the Inamdar. Indeed in his written statement filed in Rasheed
Shahpurji Chenoy' suit (O.S. No. 13 of 1958 on the file of Additional Chief
Judge, City Civil Court, Hyderabad) he claimed to be a lessee under the
Inamdar. He, however, did not assert title to the land in dispute in himself nor B
did he lay any claim on the ground of adverse possession. Even otherwise
there is no material to show that between November 28, 1954 (unregistered
perpetual lease agreement, assuming it to be free from interpolation and
admissible as agreement for lease and (Ex. B-40) registered lease deed dated
December 11, 1957 (assuming that the secondary evidence is admissible) and C
the date of filing of the written statement on January 28, 1987 the appellant
claimed title to the land in dispute otherwise than under Ex. B-40 much less
by way of asserting adverse title. It is only in the written statement filed in
the present suit that he pleaded adverse possession for the first time. The
possession of the said land from the date of Ex. B-39, 1954, till the date of
the filing of the written statement in 1987 cannot, therefore, be treated as D
adverse because there was no animus possidendi during the said period.
Before the date of filing the written statement he never claimed title to the
land in dispute adverse to the State. On the other hand, he paid siwai jamabandi
and applied for occupation of rights. Indeed in his deposition as R.W. l in
chief examination before the Special Court he stated, E
"on being satisfied about the nature of the Inam, I entered into an
agreement of perpetual lease on 28.11.1954 with Inamdar as per Ex.
B-39 .............. .I have taken possession from the Maqtedar under Ex.
B-39 on 28-11-1954. Since then I am in occupation uninterruptedly
and enjoying the same." F
We found no assertion of title by adverse possession in his deposition. Further
there is nothing on record to show that his lessor, Mohd. Nooruddin Asrari,
ever claimed the land in dispute adverse to the State. On these facts there is
no scope to invoke the principle of tacking the possession of the Inamdar or
presumption of continuity of possession backward. G·

There can be no doubt that passing of adverse order against the appellant
would not cause any interruption in his possession [See : Balkrishan v.
Satyaprakash (supra)]. So also filing of application before statutory authority
under Inams Abolition Act for occupancy rights, in our view, causes no H
696 SUPREME COURT REPORTS [2002) I S.C.R.

A interruption in the continuity of possession of the appellant but it does abrogate
his animus to hold the land in derogation of the titie of the state and breaks
the chain of continuity of the animus.

In the light of the above discussion we hold that the appellant neither
proved factum of possession of the land in dispute for period of 30 years nor
B succeeded in showing that he had animus possidendi for the whole statutory
period. Therefore, we cannot but maintain the confirming view of the High
Court that the appellant failed to acquire title to the land in dispute by adverse
possession. We may also add that the lessee of a Maqtedar (the Inamdar)
cannot acquire title to the demised land by adverse possession either as
C against the State or the Maqtedar (Inamdar) so long as his possession under
the lease continues.

Mr. Parasaran has contended that should the point of adverse possession
be found against the appellant, the principle of lost grant would apply as the
appellant has been in possession of the land in dispute for a considerable
D length of time under an assertion of title. In support of his contention he
placed reliance on Manohar Das Mohanta v. Charu Chandra Pal and Ors.,
AIR (1955) SC 228.

The principle of lost grant is a presumption which arises in cases of ..
immemorial user. It has its origin from the long possession and exercise of
E right by user of an easement with the acquiescence of the owner that there
must have been originally a grant to the claimant which had been lost. The
presumption of lost grant was extended in favour of possessor of land for a
considerably long period when such user is found to be in open assertion of
title, exclusive and uninterrupted. However, when the use is explainable, the
F presumption cannot be called in aid. A constitution Bench of this Court
explained the principle in Monohar Das Mohanta (supra) thus,

"The circumstances and conditions under which a presumption of
lost grant could be made are well settled. When a person was found
in possession and enj0yment of land for a considerable period of time
G under an assertion of title without challenge, Courts in England were
inclined to ascribe a legal origin to such possession, and when on the
facts a title by prescription could not be sustained, it was held that a ·
presumption could be made that the possession was referable to a
grant by the owner entitled to the land, but that such grant had been
lost. It was a presumption made for securing ancient and continued
H
-I
KONDA LAKSHMANA BAPUJI v. GOVT. OF AP. [S.S.M. QUADRI, J.] 697

possession, which could not otherwise be reasonably accounted for. A
But it was not a 'presumptio juris et de jure'. A presumptio juris et
de jure, means an irrebuttable presumption, is one which the law wi!l
not suffer to be rebutted by any counter-evidence, but establishes as
conclusive; whereas a presumption juris tantum is one which holds
good in the absence of evidence to the contrary, but may be rebutted. B
[Juris et de jure -Of law and of right] and the Courts were not found
to raise it, if the facts in evidence went against it.

"It cannot be the duty of a judge to presume a grant of the non-
existence of which he is convinced" observed Farwell, J, in - 'Attorney-
General v. Simpson', 1901-2 Ch. 671 at p. 698 (A)." C
[para 7 page 230]

In that case the possession of the defendant was claimed to be for over 200
years but there was no finding on the length of possession. On the ground,
inter alia, that the land was part of Mal lands (assessed land) within the
zamindari, it was held that there was no scope for applying presumption of D
lost grant. In the case on hand the appellant traces his possession from 1954
under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar).
Therefore, the presumption of lost grant will not be available to the appellant.

Thus, it follows that the appellant has unauthorisedly come into E
possession of the land in dispute of the first respondent without lawful
entitlement.

Now reverting to the other ingredient of the definition of the expression

- .... 'land grabbing' - intention of the appellant -embodied in the phrase "with
a view to" illegally taking possession of the land in dispute or entering into
the land fi>f any of the purposes mentioned in clause ( e) of Section 2, the
Special Court discussed exhaustively both the documentary evidence on record
F

and the oral evidence of the appellant under the caption - design of the first
appellant in obtaining the documents of title and resisting possession - and
concluded that he was fully aware of the infirmity of the title of his vendor G
for want of confirmation of the grant by the civil administrator and subsequent
mutation proceedings, willingly suffered siwai jama assessment, paid the
same and raised structures when a suit was pending and therefore he was a
land grabber. The High Court having noted the discussion of the Special
Court on the said issue and having adverted to the evidence, declined to
interfere with that finding in the writ petition. H
698 SUPREME COURT REPORTS [2002] I S.C.R.

A The requisite intention which is an important ingredient of the land
grabber, though not stated specifically, can be inferred by necessary implication
from the averrnents in the petition and the plaint and the deposition of witness
like any other fact. If a person comes into occupation of any Government
land under the guise of a perpetual lease executed by an unauthorised person
B having no title to or interest in the land it cannot but be with a view to
illegally takiRg possession of such land. We make it clear that we are
expressing no opinion on the point whether those averrnents would constitute
'mensrea' for purposes of offence under the Act.

We have carefully gone through the concise statement accompanying
C the application filed by the first respondent before the Special Court on
March 20, 1992 and the plaint in O.S. No. 1497 of 1985 filed by the first
respondent in the Court of the IV Additional Judge, City Civil Court,
Hyderabad. It is also averred that the appellant occupied the land in dispute
in the year 1958 and raised building "Jala Drushyam" and on coming to
know of it the first respondent took action for his eviction under Section 6
D of the Land Encroachment Act. It is also stated that the claim of the appellant
to the land in dispute is not proper, valid or legal as it never belonged to
Naimatullah Shah Maqta and even otherwise the land ceased to be Inam land
from July 20, 1955 and had vested in the first respondent and none of the
heirs of Naimatullah Shah had come forward to be declared as occupant
E under the Inam Abolition Act. The land in dispute is described by the first
respondent as land grabbed and a declaration is sought from the Special
Court that the appellant is a land grabber.

It may be observed here that though it may be apt yet it is not necessary

F
for any petitioner who invokes the jurisdiction of the Special Court/Special
Tribunal to use in his petition under Sections 7(1) and 8( I) of the Act, the
actual words employed in the relevant provisions of the Act, namely, grabbing
of the land without any lawful entitlement and with a view to or with the
intention of (a) illegally taking possession of such lands or (b) enter into or
-
create illegal tenancies, leases or licences agreements or any other illegal
G agreements in respect of such lands; or (c) to construct unauthorised structures
thereon for sale or hire; or (d) to give such lands to any person on (i) rental
or (ii) lease and licence basis for construction, or (iii) use and occupation of
unauthorised structures, as the case may be. Prima facie it will satisfy the
requirements of the Act if the petitioner alleges that the respondent is a land
grabber or that he has grabbed the land. What is pertinent is that the allegations
H in the petition/plaint, in whatever language made, should make out the
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M. QUADRI, J l 699
ingredients of land grabbing against such a person or his being a land grabber A
within the meaning of those expressions under the Act, as explained above.
It is only when the allegations made in the petition/plaint are proved the
activity of taking possession of the land will fall within the meaning of land
grabbing that such a possessor can be termed as a "land grabber" within the
meaning of that expression under the Act.
B
It is generally true that in the absence of necessary pleadings in regard
to the ingredients of the definition of "land grabbing" no finding can validly
be recorded on the basis of the evidence even if such evidence is brought on
record. Mr. Parasaran cited the judgment of this Court in Sri Venkataramana
Devaru & Ors. v. The State of Mysore & Ors., [1958) SCR 895 at 906 to C
support his submission that without necessary pleading, the evidence on record
cannot be looked into. However, it is a settled position that if the parties have
understood the pleadings of each other correctly, an issue was also framed by
the Court, the parties led evidence in support of their respective cases, then
the absence of a specific plea would make no difference. In Nedunuri D
Kameswaramma v. Sampati Subba Rao, [1963) 2 SCR 208, Hidayatullah, J.
(as he then was) speaking for a three-Judge Bench of this Court observed at
page No. 214 thus :

"Though the appellant had not mentioned a Karnikam service inam,
parties well understood that the two cases opposed to each other were E
of Dhannila Sarvadumbala inam as against a Karnikam service inam.
The evidence which has been led in the case clearly showed that the
respondent attempted to prove that this was a Dharmila inam and to
refute that this was a Karnikam service inam. No doubt, no issue was
framed, and the one, which was framed, could have been more F
elaborate; but since the parties went to trial fully knowing the rival
case and led all the evidence not only in support of their contentions
but in refutation of those of the other side, it cannot be said that the
absence of an issue was fatal to the case, or that there was that mis-
trial which vitiates proceedings."
G
The same view is expressed by this Court in the following two cases : Kali
Prasad (Dead) by Lrs. & Ors. v. Mis.Bharat Coking Coal Ltd. & Ors.; (1989]
Sup!. I SCC 628 and Sardul Singh v. Pritam Singh & Ors., [1999] 3 SCC
522.

H
\

700 SUPREME COURT REPORTS [2002) I S.C.R.

A Now, in the instant case the appellant has never pleaded before the
Special Court that necessary pleading in regard to the requirements of land
grabbing is lacking in the case. On the other hand, he understood the averments
in the petition read with the plaint correctly as allegations of land grabbing
as can be seen from the affidavit containing objections to the Gazette
B Notification dated April I, 1992, referred to above, filed on April 16, 1992.
(affidavit was attested on April 10, 1992). He stated "I deny the petitioner's
allegation of land grabbing whatsoever, made in its petition dated 20.3.1992".
He further stated that the documents filed by him and the first respondent
"nullify the petitioners allegation of land grabbing, claim of title over the
land and claim of right to get the possession of the land and the building..... ".
C On this pleading the Special Court framed issue No. 6 aforementioned. The
parties adduced evidence, oral and documentary, on that issue. We have
already discussed documentary evidence above. PW I in his statement
categorically stated that the appellant was a land grabber. What is surprising
to note is that there was no cross-examination on that aspect. What is more
D surprising is that in his deposition he did not even state that he was not a land
grabber and the land in dispute was not a grabbed land. We have not taken
this as his admission but only an aspect in appreciation of oral evidence.

The Special Court is, therefore, correct in discussing the evidence on
record under the caption 'design' in view of the pleading on that aspect,
E adverted to above and the High Court rightly upheld the same. We have
already pointed out that the activity of grabbing of any land should not only
be without any lawful entitlement but should also be, inter alia, with a view
to illegally taking possession of such lands. These two ingredients are found
against the appellant.

F It is nonetheless submitted by Mr. Parasaran that the plaint mentions
that the possession of the appellant partakes the character of permissive
possession and this averment negates the very concept of land grabbing. It is
no doubt true that if the possession is permissive then it cannot be treated as
illegal for purposes of clauses (d) and (e) of sub-section (2) of the Act. We
G have already discussed above with regard to the alleged plea of permissive
possession and held that those averments in the plaint would not constitute
plea of 'permissive possession'.

In the light of the above discussion, we have no option but to sustain
the view of the High Court in approving the finding of the Special Court ori
H Issue No. 6, that the appellant falls within the mischief of the definition of

I
KONDA LAKSHMANA BAPUJI v. GOVT. OF A.P. [S.S.M QUADRI, J.] 701
the expression "land grabber" under the Act. A
In the result, we uphold the judgment and order of the High Court
under challenge declining to interfere with the judgment and decree of the
Special Court. The appeal is dismissed; the parties shall bear their own costs.

T.N.A. Appeal dismissed. B