Full Judgment Text
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CASE NO.:
Appeal (civil) 4527-4528 of 1999
PETITIONER:
N. Srinivasa Rao
RESPONDENT:
Spl. Court under A.P. Land Grabbing (Prohibition) Act, & Ors
DATE OF JUDGMENT: 23/03/2006
BENCH:
B.P. Singh & Altamas Kabir
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NOS. 4534-4535/1999
WITH
CIVIL APPEAL NOS.4529-4532/1999
AND
CONT. PETN ) Nos.89-92/2000 of in CA Nos.4534-35/99 & 4527-28/99
ALTAMAS KABIR,J.
Applications for substitution are allowed.
All these appeals arising out of leave granted involve
common questions of fact and law and have, therefore, been
taken up for hearing and disposal together.
One Kaneez Fatima Begum was the former owner of the
lands covered by Survey No. 65 to 74 of Yousufguda village
governed by the Hyderabad Tenancy and Agricultural Land
Act, 1950. One Uppari Ramaiah was her tenant in respect of
the said lands. From the materials on record, it appears that
the said Uppari Ramaiah purchased 14 acres and 6 guntas of
land from Kaneez Fatima Begum under a sale deed dated 1st
May, 1961 for a consideration of Rs.13,000/- and obtained a
certificate in respect thereof under Section 38E of the Andhra
Pradesh (Telangana Area) Tenancy and Agricultural Lands
Act, 1950 (hereinafter referred to as the "Tenancy Act of 1950")
from the Revenue Divisional Officer, Hyderabad, West. Prior
to execution of the said deed, Uppari Ramaiah is purported
to have sold an extent of 20,086 square yards from out of the
total area measuring 14 acres and 6 guntas to one Mir
Riyasat Ali by a sale deed dated 8th February, 1961. Out of
the said 20,086 square yards, the said Mir Riyasat Ali sold
8,866 square yards to Smt. P. Neelakanteswaramma and to
one Chandra Ramalingaiah by a sale deed dated 21st
November, 1961. Their names were duly mutated in the
Town Survey Registers and in the Revenue Records. On the
death of Chandra Ramalingaiah on 7th February, 1973, his
share in the land devolved on his legal heirs, namely, his
widow, Chandra Suryamba, and his two daughters, C. Raja
Kumari and P. Sandhya Kumari and son Chandra
Ramakoteswar Rao. Smt. Neelakanteswaramma and the
widow of Chandra Ramalingaiah entered into an agreement
for sale with Bhagyalakshmi Cooperative Housing Society,
but in view of the Government Order R.T. No.3591 dated 1st
December, 1975 and Government Order M.S. No.189 dated
17th January, 1976, they could not execute the sale deeds in
favour of the Housing Society.
According to P. Neelakanteswaramma and the heirs of
Chandra Ramalingaiah, since the legal heirs of Uppari
Ramaiah conspired to grab the lands which had been
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conveyed in their favour by Mir Riyasat Ali, they were
constrained to file a complaint in the Special Court of A.P.
Land Grabbing (Prohibition) Act, Basheerbagh, Hyderabad,
being L.G.C. No.32/1989. It was alleged in the complaint
that the heirs of Uppari Ramaiah, who were made respondent
Nos. 1 to 10 in the complaint, executed three General Powers
of Attorney in favour of one N. Srinivasa Rao, who was made
the respondent No.11. In the said Powers of Attorney, the
facts regarding transfer of the lands by Uppari Ramaiah in
favour of Mir Riayasat Ali and the subsequent transfer by Mir
Riyasat Ali in favour of P. Neelakanteswarama and the
predecessor-in-interest of the applicant nos. 2 to 5 were
suppressed and the property in dispute was described as the
property of Uppari Ramaiah who had purchased the same
from Kaneez Fatima Begum and after Uppari Ramaiah’s
death, it was stated that the lands had devolved on the
respondent Nos. 1 to 10. as his legal heirs. By virtue of a
General Power of Attorney, the said respondent Nos. 1 to 10
authorised respondent No.11 to convert the schedule property
into plots and to sell and execute sale deeds in respect
thereof in favour of purchasers. The respondent Nos. 1 to 10
also executed an Agreement of Sale dated 26th June, 1980, in
favour of respondent No.11 in respect of the said lands.
On the strength of the said General Power of Attorney
and Agreement of Sale, the respondent No.11 executed 5
registered sale deeds covering a part of the disputed lands in
favour of one Ch. Laksminarasamma and five others, who
were also impleaded as respondent Nos. 12 to 17 in the
complaint before the Special Court.
On receipt of notice of the complaint, the respondent Nos.
1 to 12 entered appearance and filed counter affidavits.
Respondent Nos. 1 to 10 filed a counter contending that late
Uppari Ramaiah, the husband of respondent no.1 and the
father of respondent Nos. 2 to 10, was a "protected tenant" of
Smt. Kaneez Fatima Begum in respect of the disputed lands
covered by Survey Nos. 65 to 74 of Yousufguda village and
that he had purchased the said lands from Kaneez Fatima
Begum by a registered sale deed dated 1st May, 1961 for a
sum of Rs.13,000/-. It was further contended that the
applicants had falsely stated that they had purchased the said
lands from Mir Riyasat Ali by sale deed dated 21st November,
1961. The lands in question were agricultural lands and were
referred to as such in the revenue records in terms of acres
and guntas and the transaction entered into by Mir Riyasat
Ali with Uppari Ramaiah was effected with the intention of
avoiding having to obtain formal permission from the
Tahasildar under Section 47 of the Tenancy Act of 1950 for
transfer of the said lands. The specific case made out in the
counter filed by respondent nos. 1 to 10 was that the sale deed
executed by Uppari Ramaiah in favour of Mir Riyasat Ali was
fraudulent as would be evident from the fact that the same
had been executed even before Uppari Ramaiah acquired full
title to the properties from Kaneez Fatima Begum by the sale
deed dated 1st May, 1961. It was also contended that when
the applicants started interfering with the possession of the
respondents over the lands in question, they had filed
O.S.No.926/1981 which was pending before the IVth
Additional Judge, City Civil Court, Hyderabad.
Upon noticing that Uppari Ramaiah and his legal heirs
had joined Mir Riyasat Ali and K. Satyanarayana in effecting
sale of some of the lands in favour of Srinivasa Government
Emplyees Co-oerative Housing Society Limited by the Deed of
Sale dated 6th May, 1961(Ext.B-9) and after referring to other
similar transactions entered into by Mir Riyasat Ali, the
learned Special Judge overruled the objection that Mir Riyasat
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Ali had not acquired title to the properties in question by
virtue of the sale deed executed in his favour by Uppari
Ramaiah on 8th February, 1961. Relying on Section 43 of the
Transfer of Property Act, 1882, and the decision of this Court
in the case of Ram Pyare vs. Ram Narain & Ors., reported in
(1985) 2 SCC P.162, the learned Special Judge held that the
subsequent acquisition of title by Uppari Ramaiah to the
property conveyed to Mir Riyasat Ali inures to the benefit of
Mir Riyasat Ali as the same feeds Uppari Ramaiah’s title to the
said property.
In addition to the above, the learned Special Judge found
Mir Riyasat Ali to be in actual physical possession of the
properties since the same was conveyed to him by Uppari
Ramaiah and since the respondents had not taken any steps
to evict Mir Riyasat Ali but had allowed him to continue in
possession without any interruption till 1980. The learned
Judge found that the applicants had acquired title to the
property by adverse possession notwithstanding the mischief
of Section 47 of the Tenancy Act of 1950.
The plea taken by the respondents that the application
was hopelessly time-barred, was also negated by the learned
Special Judge on account of his aforesaid findings.
Once the other issues had been decided in favour of the
applicants, the learned Special Judge held that the burden
shifted to the respondents to prove that they were not land
grabbers within the meaning of the Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982 (hereinafter referred to as
’’the A.P. Land Grabbing Act, 1982"). On the basis of the
materials before him and in particular of the fact that Uppari
Rammaiah and his sons had joined Mir Riyasat Ali and
K.Satyanarayana in the conveyance executed in favour of the
Cooperative Group Housing Society, the learned Special
Judge came to the conclusion that by their actions it must be
held that the said respondents were land grabbers. The
learned Special Judge accordingly proceeded to declare the
respondent Nos. 1 to 17 before him as land grabbers within
the meaning of the A.P. Land Grabbing Act, 1982 and directed
that criminal proceedings be commenced against them for
offences punishable under Sections 4 and 5 of the said Act.
The heirs of Uppari Ramaiah filed a writ petition before
the Andhra Pradesh High Court, being W.P.No.4991/1990,
against the aforesaid judgment and order of the learned
Judge. Another writ petition, being W.P.No.4026/1990, was
filed by N. Srinivasa Rao, to whom a General Power of
Attorney had been given by the heirs of Uppari Ramaiah, and
since they arose out of a common judgment, they were heard
together and disposed of by a common order dated 11th July,
1997.
The High Court reversed the findings of the learned
Special Judge upon holding that the sales effected by Kaneez
Fatima Begum in favour of Uppari Ramaiah on 1st May, 1961
(Ext.A-1) and the sale executed by Uppari Ramaiah in favour
of Mir Riyasat Ali on 8th February, 1961 (Ext.A-3) were not
valid as they were hit by Section 47 of the Tenancy Act of
1950. It was held further that in the absence of a
Validation certificate, transfers if any, in favour of the others,
including the applicants before the learned Special Judge, did
not confer any right or title on them.
The High Court also held that Section 43 of the Transfer
of Property Act would not come to the aid of the transferee,
since a transfer in the absence of prior permission or sanction
of the Tahsildar under Section 47 of the Tenancy Act of 1950
was prohibited. The High Court, accordingly, concluded that
the respondent Nos. 1 to 11 before the learned Special Judge
were not land grabbers and quashed the order and decree of
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the Special Court, Hyderabad, dated 5th March, 1990, upon
holding that the same was illegal.
The judgment and order passed by the Division Bench of
the Andhra Pradesh High Court allowing the two writ
applications is the subject matter of Civil Appeal Nos. 4534-
4535/1999 filed by N. Srinivasa Rao whose writ petition had
been allowed but with certain observations which according to
the petitioner are contrary to his interest.
On the other hand, Uppari Ramaiah and others filed two
Review Petitions, being W.P.M.P.Nos.22810/1997 and
22811/1997 in the two Writ Petition Nos. 4991/1990 and
4026/1990, for review of the judgment dated 11th July, 1997.
The petitioner, in his turn, filed a clarification
application, being W.P.M.P. No.24605/1997, in
W.P.No.4026/1990, on the ground that certain observations
had been made by the High Court in its judgment dated 11th
July, 1997 de hors the issues involved, which would have the
effect of adversely affecting his interests and would stand in
his way in working out his civil rights in the Civil Court with
regard to his legitimate proprietary rights. Uppari Ramaiah
and others filed an application in the clarification petition for
being added as parties therein since any favourable order
passed therein would have the effect of adversely affecting
their interests.
All the said applications were taken up for hearing by
the High Court on 24th October, 1997 and by its order dated
21st November, 1997, the High Court dismissed all the said
applications. Civil Appeal Nos. 4527-4528/1999 have been
filed by the said N. Srinivasa Rao against the said order of the
Hon’ble High Court dismissing his application for clarification.
P. Neelakanteswaramma also challenged the orders
passed by the High Court in the two writ applications, in the
Review Petition in W.P.No.4991/1990 and Miscellaneous
Petition filed by N. Srinivasa Rao in W.P.No.4026/1990 in the
four Civil Appeals, C.A.Nos. 4529-4532/1999. All the
aforesaid appeals have been taken up together for hearing
and are being disposed of by this common judgment.
Appearing for the appellants in Civil Appeal Nos. 4529-
4532 of 1999, Mr. K. Parasaran, learned senior advocate,
took us through the provisions of the Land Grabbing Act,
1982, wherein the expression "land grabbing" has been
defined in Section 2 (e) of the aforesaid Act as follows:-
"2(e) "land grabbing" means every
activity of grabbling of any land (whether
belonging to the Government, a local
authority, a religious or charitable
institution or endowment, including a
wakf, or any other private person) by a
person or group of persons, without any
lawful entitlement and with a view to
illegally taking possession of such lands,
or enter into or create illegal tenancies or
lease and licences agreements or any
other illegal agreements in respect of
such lands, or to construct unauthorized
structures thereon for sale or hire, or give
such lands to any person on rental or
lease and licence basis for construction,
or use and occupation, of unauthorized
structures; and the term "to grab land"
shall be construed accordingly;"
Mr. Parasaran contended that having regard to the
manner in which the heirs of Uppari Rammaiah had at one
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stage acquiesced in accepting Mir Riyasat Ali’s title to the
lands conveyed to him by their predecessor-in-interest, their
subsequent volte face in contending that Mir Riyasat Ali had
no title to the said properties, which were subsequently
conveyed by him to P. Neelakanteswaramma and Chandra
Ramalingaiah, must be held to attract the provisions of the
1982 Act and the penal consequences thereof.
It was then submitted that notwithstanding the fact that
the lands in question had been recorded in the revenue
records as agricultural lands and Uppari Ramaiah had been
recorded as a "protected tenant", over the passage of time, the
lands comprised in Yousufguda village came to be included
within Hyderabad Municipality though the revenue records
pertaining to the lands in question had not been rectified to
keep up with the changing times. Viewed from such an angle,
it could very well be said that the said lands did not attract
the provisions of the Tenancy Act of 1950 which dealt with
agricultural lands which were subject to the various
restrictions imposed in the Act itself.
In support of such contention reliance was placed on a
decision of this Court in the case of Motor General Traders
And Anr. vs. State of Andhra Pradesh And Ors., (1984) 1 SCC
222, wherein it was held that an exemption provision which
was initially valid could with the passage of time become
discriminatory when the nexus with the object did not
continue to survive.
Mr. Parasaran also relied on a decision of this Court in
the case of Collector of Bombay vs. Municpal Corporation of
the City of Bombay And Ors., (1952) SCR 43, wherein
following the principle in Ramsden v. Dyson (1866) L.R. 1
H.L. 129, the High Court of Bombay held that the
Government had lost its right to assess the land in question
by reason of the equities arising in the facts of the case in
favour of the Corporation which had spent a considerable
amount in erecting and maintaining markets on the site in
question.
Another decision of this Court on which a good deal of
reliance was placed by Mr. Parasaran was in the case of
Sarifabibi Mohmed Ibrahim (Smt.) And Ors. vs. Commissioner
of Income Tax, Gujarat, 1993 Supp.(4) SCC 707, wherein the
assessee-appellants as co-owners of a piece of land sold it to
a Group Housing Society. A reference under Section 256(1) of
the Income Tax Act was made to the Gujarat High Court as to
whether that land was agricultural land within the meaning
of Section 2 (14) of the Income Tax Act for the purpose of tax
on capital gains. The reference was answered by the High
Court in favour of the Revenue and in appeal this Court
affirmed the view taken by the High Court upon holding that
whether a land is agricultural land or not is essentially a
question of fact. Several tests have been evolved in the
decisions of the Supreme Court and the High Courts, but all
of them are more or less in the nature of guidelines. The
question has to be answered in each case having regard to
the facts and circumstances of the case. It was observed
that an inference has to be drawn on a cumulative
consideration of all the relevant facts.
It was suggested on behalf of the appellants that the
provisions of Section 47 of the Tenancy Act of 1950, wherein
the previous sanction of the Tahsildar was required to be
taken for permanent alienation of agricultural land, would not
be attracted in the instant case since the lands were no
longer agricultural in nature. The corner-stone of the
appellant’s case is based on the perfection of title by Uppari
Rammaiah by virtue of the sale deed executed in his favour by
Kaneez Fatima Begum on 1st May, 1961 which in turn
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perfected Mir Riyasat Ali’s title in respect of the lands
conveyed to him by Uppari Ramaiah on 8th February, 1961.
This also had the effect of legitimizing the subsequent
transfers made by Mir Riyasat Ali in favour of P.
Neelakanteswaramma and Chandra Ramalingaiah and also in
favour of Srinivasa Cooperative Housing Society Ltd., wherein
in recognition of such a right both Uppari Ramaiah and his
legal heirs had joined on receipt of a certain part of the
consideration amount.
In the course of his submissions, Mr. Parasaran referred
to a Notification No.44 dated 6th June, 1949, by which the
area in question was included in the Jubilee Hills area within
the limits of the Hyderabad Municipality. It was urged that
the said fact would go a long way to establish that the lands
had lost their agricultural character long ago and would no
longer be governed by the provisions of the Tenancy Act of
1950 but by the provisions of the Transfer of Property Act,
1882. To lend further support to his submission, Mr.
Parasaran also pointed out that in 1969 Section 47 had been
omitted from the 1950 Act, inasmuch as, by then the lands
governed by the said Act had lost their agricultural character
and had been converted into urban holdings. In addition to
the provisions of Section 43 of the Transfer of Property Act,
reference was also made to Section 13(1)(b) of the Specific
Relief Act, 1968, whereunder a person with no title or
imperfect title may be compelled by the purchaser or lessee
to execute or procure documents to validate the title.
Reference was made to a decision of this Court in the
case of The Jumma Masjid, Mercara vs. Kodimaniandra
Deviah, (1962) Supp. 2 SCR 554, which was a case dealing
with a representation made by a person having only a spes-
successionis in the property transferred. It was held that the
transferee was entitled to the benefit of Section 43 of the
Transfer of Property Act, 1882, if he had taken the transfer for
consideration and on the faith of the representation.
The decision already referred to hereinbefore in the
case of Ram Pyare (supra) echo the sentiments in the
aforesaid Jumma Masjid case.
In applying the provisions of Section 43 of the aforesaid
Act in respect of the sale deed executed by a tenure holder, an
alternative argument was advanced to the effect that even if
the sale deeds executed by Uppari Ramaiah in favour of Mir
Riyasat Ali and Kaneez Fatima Begum in favour of Uppari
Ramaiah should be held to be void on account of non-
compliance with the provisions of Section 47 of the Tenancy
Act of 1950, it could not be denied that Mir Riyasat Ali
continued to be in possession of the lands as conveyed in his
favour by Uppari Ramaiah from 1961 till 1982, during which
period not only did Uppari Ramaiah and his legal heirs
acquiesce in Mir Riyasat Ali’s title to the said land, but they
did not also take any steps to challenge such title or to
initiate eviction proceedings against Mir Riyasat Ali under
Section 98 of the said Act. It was submitted that, as had been
found by the learned Special Judge, the mischief under
Section 47 of the 1950 Act did not prevent Mir Riyasat Ali and
or those claiming under him from acquiring title to the
property by adverse possession, and, in fact, the respondents
in these appeals lost their possession in the lands upon
execution of the conveyance by Uppari Ramaiah in favour of
Mir Riyasat Ali and the subsequent transferees from Mir
Riyasat Ali were in continuous and uninterrupted possession
of the land and that they had consequently perfected their
title in the lands by way of adverse possession as against the
respondents.
Appearing for the heirs of Uppari Ramaiah, Mr.K.K.
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Venugopal, learned senior counsel, at the very outset
contended that A.P. Land Grabbing (Prohibition) Act, 1982,
was not attracted to the facts of the instant case, since
admittedly the transferees from Mir Riyasat Ali were in
possession of the lands conveyed in their favour. Referring
to the definition of the expression "land grabber" and "land
grabbing" as defined in Sections 2 (d) and 2 (e) of the said Act,
Mr. Venugopal submitted that an act of land grabbing would
necessarily have to be followed by a physical attempt to take
possession of the lands involved, which element was lacking
in this case.
Referring to the Deed of Sale dated 21st November,
1961 executed by Mir Riyasat Ali in favour of Chandra
Ramalingaiah and P. Neelakanteswaramma (Ext.A-5), Mr.
Venugopal urged that a genuine civil dispute had been raised
regarding acquisition of title by Mir Riyasat Ali and through
him his transferees in view of the recitals contained in the said
deed wherein Uppari Ramaiah’s protected tenancy was
referred to and it was also mentioned that under the Tenancy
Act of 1950 the protected tenant had a right to purchase the
interest of the land holder, which in fact, was the case when
Uppari Rammaiah obtained the sale deed in his favour from
Kaneez Fatima Begum on 1st May, 1961 and the same was
registered on 4th May, 1961 before the Sub-Registrar,
Khairatabad, Hyderabad. Pursuant thereto, Uppari Ramaiah
had applied for a certificate under Section 38 of the aforesaid
Act and the same was issued in his favour by the Revenue
Divisional Officer, Hyderabad (West), Hyderabad District, on
19th May, 1961. According to Mr. Venugopal, the learned
Special Judge had on a wrong interpretation of the provisions
of the Tenancy Act of 1950 held the heirs of Uppari Ramaiah
to be land grabbers within the meaning of the aforesaid Act.
It was also submitted that the purported sale deed
executed by Uppari Ramaiah in favour of Mir Riyasat Ali on 8th
February, 1961 was contrary to the concept of "protected
tenancy" envisaged under the Tenancy Act of 1950 Act. In the
event the recitals in the deed executed by Mir Riyasat Ali on
21st November, 1961, in favour of Chandra Ramalingaiah and
P. Neelakanteswaramma are to be accepted, then, Uppari
Ramaiah had only a protected tenancy in the lands in
question which he could not have conveyed to Mir Riyasat Ali
on 8th February, 1961, without the prior sanction of the
Tahsildar under Section 47 of the Tenancy Act of 1950 which
otherwise bars transfers in favour of non-agriculturists under
Section 49 of the aforesaid Act.
Mr.Venugopal submitted that since the A.P. Land
Grabbing Act, 1982 provides for penal consequences,
including imprisonment under Sections 4 and 5 of the said
Act, and against which no appeal has been provided, the High
Court was entitled to question the decision-making process
of the Special Court in exercise of its powers under Articles
226 and 227 of the Constitution of India. It was submitted
that the said view had also been expressed by this Court in
State of A.P. vs. P.V. Hanumantharao, (2003) 10 SCC 121.
Mr. Venugopal submitted that Ext.B-9, being the sale
deed executed by Mir Riyasat Ali and Uppari Ramaiah and his
heirs in favour of Srinivasa Government Employees
Cooperative Housing Society Limited could not be relied upon
on account of the fact that of the consideration amount of
Rs.85,854/-, only a sum of Rs.1,500/- was paid to Uppari
Ramaiah and his heirs, which clearly established the sham
nature of the transaction. In addition it was contended that
Section 43 of the Transfer of Property Act would also not have
any application in the facts of the instant case since it would
first have to be established as to who had committed fraud
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since both, Mir Riyasat Ali, Uppari Ramaiah and his heirs
were in pari delicto and the original contract between Uppari
Ramaiah and Mir Riyasat Ali was void.
Mr. Venugopal submitted that the doctrine of in pari
delicto which had been explained by this Court in Sita Ram
vs. Radhabai And Ors. , (1968) 1 SCR 805, being an
equitable principle, one whose title to a property was based
on fraud could not claim that another had obtained the said
property by fraudulent means. Mr. Venugopal submitted that
the principle embodied in Section 43 of the Transfer of
Property Act regarding feeding the estoppel had been held to
be inoperative and invalid in Ram Bhawan Singh vs. Jagbir
Singh And Ors., (1990) 4 SCC 309 when the transfer itself was
invalid.
A further submission was made that in the case of
Manchegowda And Ors. vs. State of Karnataka And Ors.
(1984) 3 SCC 301, this Court while considering certain
prohibited transfers under statute had held that the same
were void as the transferees acquired only a defeasible title to
the lands transferred. Mr. Venugopal denied the claim
made that Mir Riyasat Ali had perfected his imperfect title by
operation of Section 43 of the Transfer of Property Act, 1882
when Kaneez Fatima Begum executed the sale deed in favour
of Uppari Ramaiah on 1st May, 1961. It was reiterated that
since the sale deed executed by Uppari Ramaiah in favour of
Mir Riyasat Ali was not based on any misrepresentation, the
provisions of Section 43, which feeds its estoppel, would not
be available to the transaction, notwithstanding the fact that
Uppari Ramaiah subsequently acquired full rights over the
land in question. It was urged that the prohibition contained
in Section 47 of the Tenancy Act of 1950 could not be
circumvented and/or defeated in the fraudulent manner in
which it had been done. Mr. Venugopal, submitted that the
said principle had been considered by this Court in the case
of Kartar Singh (dead) by Lrs. And Ors. vs. Harbanskaur
(Smt.) (1994) 4 SCC 730, wherein it was held that the rule of
estoppel by deed by transferor would apply only when the
transferee is misled. Where the transferee knows for a fact
that the transferor does not possess the title which he
represents, then he cannot be said to have acted on such
representation in taking a transfer. Section 43 then would
have no application and the transfer would fall under Section
6(1) of the Transfer of Property Act, 1882.
According to Mr. Venugopal it was well within the
knowledge of the parties that Uppari Ramaiah was only a
protected tenant under Kaneez Fatima Begum. The sale deed
executed by Uppari Ramaiah in favour of Mir Riyasat Ali as
such protected tenant was hit by the provisions not only of
Section 47 but also by Section 49 of the Tenancy Act of
1950.
Apart from the above, there is also no pleading on
behalf of the appellants on the application of Section 43 of the
Transfer of Property Act, 1882.
Mr.Venugopal also opposed the alternative submission
made by Mr. Parasaran that P. Neelakantenswaramma and
the heirs of Chandra Ramalingaiah had acquired title to the
property in question by adverse possession on the principle
that the question of adverse possession could only be decided
by a civil court and not by a Special Court constituted under
the A.P. Land Grabbing (Prohibition) Act, 1982.
Mr. R.F. Nariman, learned senior advocate, who
appeared for some of the respondents, adopted the
submissions of Mr. Venugopal and contended that that since
the Limitation Act would not apply to the Special Tribunal,
the plea of adverse possession was not available in the
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proceedings before the Special Court. In any event, relying on
a decision of this Court in Balkrishan vs. Satyaprakash And
Ors., (2001) 2 SCC 498, Mr. Nariman submitted that as had
been held therein the adverse possession must be adequate
in continuity, in publicity and in 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.(See S.M. Karim v. Bibi Sakina
AIR 1964 SC 1254).
In addition, Mr. Nariman submitted that the Full Bench
of the Andhra Pradesh High Court had in the case of Sada
vs. Tahsildar, Utnoor, Adilabad District and Ors., reported in
1987 (2) ALT 749, held that a plea of adverse possession could
not be taken by a land holder against a protected tenant, in
this case Uppari Ramaiah, to whom a certificate had been
issued under Section 38E of the Tenancy Act of 1950.
Reiterating Mr. Venugopal’s submission, Mr. Nariman
concluded on the note that mere attempt to grab cannot be
equated with an act of land grabbing and hence the
provisions of A.P.Land Grabbing (Prohibition) Act, 1982 would
have no application to the facts of this case.
Appearing for the appellant in CA Nos.4534-4535/99 and
4527-4528/99 Mr. C. Pandari, learned advocate, adopted the
submissions made by Mr. Venugopal and Mr. Nariman and
submitted in addition that while adjudicating on the
complaint by P. Neelakanteswarama and the heirs of Chandra
Ramalingaiah, the learned Special Judge had exceeded his
jurisdiction in making observations on the rights said to have
been assigned in favour of respondent Nos. 7 to 16 which
allegedly obstructed the appellant’s right to work out his
civil rights in respect of the property. It was urged that the
learned Special Judge was only required to adjudicate on the
question as to whether the opposite parties had acted in a
manner in respect of the lands in question which would
attract the provisions of the A.P.Land Grabbing (Prohibition)
Act, 1982.
In his brief reply Mr. Parasaran contended that not all
acts done contrary to any statutory provision are always void
but in some cases voidable and if a voidable act is not
avoided within a reasonable time, parties are subsequently
precluded from challenging the same.
He also attempted to show that fraud had not been
pleaded by the appellant which would take out the matter
from the ambit of Section 43 of the Transfer of Property Act,
1882. Referring once again to Kartar Singh’s case (supra), Mr.
Parasaran tried to convince us that in the said decision
nothing different to what had been held in the Jumma
Masjid’s case (supra) had been indicated.
Although, the facts involved in these appeals
necessitated lengthy submissions, the scope and ambit thereof
is limited.
The main issue which surfaces in these appeals is
whether the actions arising out of the dispute raised by the
heirs of Uppari Rammaiah can be said to attract the
provisions of the A.P.Land Grabbing (Prohibition) Act, 1982.
Admittedly, the transferees from Mir Riyasat Ali and Chandra
Ramalingaiah as also P. Neelakanteswaramma have been in
possession of the properties in dispute and at no point of time
had their possession been disturbed. The attempts by the
heirs of Uppari Ramaiah to dispossess the said transferees
could at best be said to be an attempt to gain possession of
the lands without actually obtaining possession thereof,
which would not constitute an act of land grabbing within
the meaning of the A.P. Land Grabbing (Prohibition) Act,
1982. We agree with both Mr. Venugopal and Mr. Nariman
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that in order to constitute an act of land grabbing, an attempt
to dispossess must be followed by actual dispossession which
would then constitute land grabbing so as to attract the penal
provisions of the 1982 Act.
These appeals should fail on the said ground alone but it
has also been argued, and, in our view, quite rightly so, that
the initial document executed by Uppari Ramaiah in favour of
Mir Riyasat Ali on 8th February, 1961, was void since Uppari
Ramaiah did not have any saleable interest in the land at that
stage having regard to the express prohibition under Sections
47 and 49 of the Tenancy Act of 1950. We are unable to agree
with Mr. Parasaran that this was merely a voidable
transaction and was capable of being avoided without the
defect being cured under Section 50B of the said Act. It was
all the more so since the transfer was being made by a
protected tenant as an agriculturist to a non-agriculturist
which has also been expressly prohibited under the Act. That
Uppari Ramaiah was aware that the lands were agricultural in
nature is evident from the application filed before the learned
Special Judge in which the said lands aware described as "dry
agricultural lands". Except for the fact that the said lands
were now included within an urban area there is nothing to
show that the user of the same had been altered with the
passage of time. The decision in Sarifabibi’s case (supra)
cited by Mr. Parasaran does not, therefore, help his clients’
case. The scheme of the Tenancy Act of 1950 is reflected in
Section 30 of the Act which prohibits sub- division or
subletting of any land by a tenant or assignment of any
interest held by him therein. The Preamble to the Act
provides that it was expedient inter alia to amend the law
regulating the relations of landlords and tenants of
agricultural lands and the alienation of such lands and to
enable the land holders to prevent excessive sub-division of
agricultural holdings. In our view, in a proceeding before the
Special Court the only issue which fall for decision is whether
there has been an act of land grabbing as alleged and who is
the guilty party. The Special Court has no jurisdiction to
decide questions relating to acquisition of title by adverse
possession in a proceeding under the Act as the same would
fall within the domain of the civil courts. The learned Special
Judge apparently traveled beyond the jurisdiction vested in
him under the 1982 Act in deciding that even if the provisions
of Section 47 of the Act was a bar to transfer without the
sanction of the Tahsildar, the occupants of the land had
perfected their title thereto by way of adverse possession.
Even on the question of the applicability of Section 43 of
the Transfer of Property Act, we agree with the view taken by
the High Court that when the initial transfer itself between
Uppari Ramaiah and Mir Riyasat Ali was invalid, the question
of application of Section 43 of the Transfer of Property Act to
such a transaction on account of subsequent acquisition of
title by Uppari Ramaiah would not be available.
As far as the appeals filed by N. Srinivasa Rao are
concerned, his only grievance is with regard to the
observations made by the Writ Court while disposing of the
writ applications in his favour. Such observations appear to
have been made in passing and cannot bind the parties in a
properly constituted suit where the rights of the parties are to
be adjudicated. We, therefore, clarify that in the event any
civil action is taken by the said N. Srinivasa Rao in
furtherance of his rights, if any, under the General Power of
Attorney granted in his favour and/or any other document,
such observations will not be relied upon in coming to a
decision in the suit.
We do not think that the orders passed by the High Court
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call for any interference in these appeals which are disposed
of accordingly. There will be no order as to costs.
In our view, nothing further remains to be considered in
the contempt applications and they stand disposed of
accordingly.