UNION OF INDIA & ANR. versus S. NARASIMHULU NAIDU (DEAD) THROUGH LRS. AND ORS.

[2021] 4 S.C.R. 1198

[2021] 4 S.C.R.

UNION OF INDIA & ANR.

S. NARASIMHULU NAIDU (DEAD)THROUGH LRS. AND ORS.

(Civil Appeal No. 2049 of 2013)

AUGUST 27, 2021

[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]

Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 –ss.2(d) and 8 – Government Grants Act, 1895 – s.2 – RegistrationCAct, 1908 – s.17 – Respondents-applicants’ case that their fatherhad purchased 2 acres 27 guntas of land from one ‘SA’ and he wasput in possession – Out of the total land purchased by the father ofapplicants, some was taken over for the construction of roads – Itwas also stated that their father sold the land measuring 4971.5 sq.Dyard, however, the remaining 7128.5 sq. yards was retained by him– Military Contract Committee started constructing sheds on theland (measuring 4971.5 sq. yards) sold by their father – Purchaserof the said land (measuring 4971.5 sq. yards) filed suit againstUnion of India and respondents were also made party – First suitwas decreed declaring the purchasers as title holders – RespondentsEas legal heirs filed an application u/s.8 of the Act alleging that theland measuring 7128.5 sq. yards was grabbed by Union of Indiaand relied on the first suit decreed in favour of purchasers – Tribunalheld that findings in the first suit binds the Union of India andapplications were allowed – The High Court affirmed the decisionFof the Tribunal – Questions required to be decided before theSupreme Court: (i) whether the order passed in the first suit filed bythe plaintiff as affirmed by the High Court operate as res judicata?;(ii) whether the appellants have proved their title over the land inquestion?; (iii) whether appellant is land grabber within the section2(d) of the Act – Held: Though the first suit is between the sameGparties, but the subject matter is not the same – Since the issue inthe suit was restricted to 4971.5 sq. yard, the decree would be bindingqua that extent only – The issue cannot be said to be barred byconstructive res judicata as per Explanation IV as it applies to theplaintiff in later suit – The appellants have denied the claim of theHplaintiffs in the first suit to the extent that it was the subject matter1198

of that suit alone – Therefore, the decree in the first suit will notoperate as res judicata in the subsequent matters – Since the land inquestion was transferred from the State, document of title is notrequired to be registered in terms of s.17 of the Registration Act,1908 and/or in terms of Government Grants Act, 1895 – The letterdated 19.03.1958 completes the transfer when the possession ofthe land measuring 1500 acres and 24 guntas was handed over toUnion – Appellants claim possession of 1500 acres and 24 guntas,although appellants have lost claim of 4971.5 sq. yards which isfalling as part of 2 acres and 20 guntas, but that would not lead tolosing of title of appellants over the entire land measuring 2 acresand 20 guntas – Further, military land register, which is also publicdocument (s.74 of the Evidence Act) shows possession of theappellants over the land – Appellants are owner of the land –Therefore, appellants are not land grabbers.

Disposing of the appeal, the Court

HELD: 1. The following questions are required to bedecided in the present appeals: (i) whether the order passed inthe first suit filed by the plaintiff as affirmed by the High Courtoperate as res judicata?; (ii) whether the appellants have provedtheir title over the land in question?; (iii) whether appellant is aland grabber within the section 2(d) of the Act? [Para 24][1226-C-D]

2. The The applicants have claimed possession from theappellants primarily on the ground that in the suit filed by theplaintiffs on 14.4.1965, the basis of the suit was purchase of landby the plaintiffs from the father of the applicants. Since theplaintiffs have been found to be the owners on the basis ofpurchase of land from the father of the applicants, therefore, theissue of title decided in the said suit would operate as res judicata.Therefore, the appellants herein are land grabbers having notitle over the land in question. It may be reiterated that theplaintiffs had purchased land measuring 4971.5 sq. yards fromthe father of the applicants whereas the remaining land measuring7128.5 sq. yards was retained by the applicants. Therefore, thedecree in the first suit was only in respect of the schedule propertyin the first suit i.e. 4971.5 sq. yards. The patta, the basis of titleof the applicants had not been produced in evidence before the

ATribunal. Thus, the basic document of title had not been produced.[Para 25][1226-E-G]

3. In the first suit, the father of the applicants had not filedany counter claim to assert title or possession over the land inquestion. The land admeasuring 4971.5 sq. yards was scheduleBproperty and the subject matter of the first suit. The issue no. 1in the first suit was in respect of the possession of the plaintiffsand their predecessor-in-interest over the ‘suit land’within 12years prior to the suit. Therefore, the rights of the plaintiffs wereexamined in respect of such suit land measuring 4971.5 sq. yardsalone, although, to return the finding on possession and title,Cpossession of the father of the applicants over the land purchasedby the Plaintiff was clubbed together on the basis of patta claimedto be granted to ‘SA’, though not produced or proved on record.[Para 26][1227-A-C]

4. In the second suit filed by the applicants, the entire basisDof suit was the findings returned in the first suit. There is noindependent evidence produced in respect of purchase of landby ‘SA’ and the legality or validity of Patta issued to him. Although,applicants have asserted that they have been visiting the land inquestion to verify their possession but apart from such plea, thereEis no evidence that there was any covert and overt act on thepart of the plaintiffs to assert possession over the land in question.[Para 27][1227-C-D]

5. In fact, the appellants had entered into settlement withthe plaintiffs by which some of the land in possession was givento the decree holder in execution with the leave of the Court onF19.8.1995. Such action would show the assertion of title by theappellants so as to enter into exchange of land in satisfaction ofthe decree. The father of the applicants was party in the executionproceedings but has not objected to the exchange. It necessarilyleads to an inference that the father of the applicants was not inGpossession and has not asserted the title or possession over theremaining land measuring 7128.5 sq. yards. On the other hand,the appellants have categorically asserted that they are inpossession of the land from the date of transfer in the year 1958when the Collector of Hyderabad handed over the possession to

them. The appellants continued to be in unhanded possessionover the last 30 years. [Para 28][1227-E-G]

The applicants have not claimed any title to the land whichis claimed to be in their possession and the subject matter of thefirst suit was only 4971.5 sq. yards. Hence, the decree in the saidsuit is binding qua the land in suit only. [Para 36][1233-F-G]

6. Though the first suit is between the same parties, butthe subject matter is not the same. For res judicata to apply, thematter in the former suit must have been alleged by one partyand either denied or admitted, expressly or impliedly by the other.Since the issue in the suit was restricted to 4971.5 sq. yards, thedecree would be binding qua to that extent only. The issue cannotbe said to be barred by constructive res judicata as perExplanation IV as it applies to the plaintiff in later suit. Theappellants have denied the claim of the plaintiffs in the first suitto the extent that it was the subject matter of that suit alone.Therefore, the decree in the first suit will not operate as resjudicata in the subsequent matters. [Para 37][1233-G-H; 1234-A-B]

7. Now, the second question as to whether the appellantshave proved their title over the land in question is examined.The appellants claim title over the land in question. Since theland is transferred from the State, document of title is not requiredto be registered in terms of Section 17 of the Registration Act,1908 and/or in terms of Government Grants Act, 1895. The areaof Asafnagar lines is 378 acres 16 guntas. In the appendix to theletter dated 10.10.1956, the details of the land comprising in thearea measuring 378 acres 16 guntas is mentioned, which includes2 acres 20 guntas of Miniature Rifle Range. Such land is reflectedas in Mallapally Area. The total area of Mallapally area andAsafnagar Lines is 378 acres and 16 guntas. The Mallapalli Linesis non-ISF Lines measuring 450 acres and 12 guntas which isdistinct from Asafnagar Lines falling in ISF area measuring 378acres and 16 guntas. Thus, Mallapally area and Mallapalli Linesare two different parcels of the land. The land in question hereinis part of Asafnagar Lines handed over to the appellants as ISF

ALines. The letter dated 19.3.1958 completes the transfer whenthe possession of land measuring 1500 acres and 24 guntas washanded over to the Union. [Para 41][1235-D-G]

The appellants claim to be in possession over the landmeasuring 1500 acres and 24 guntas from the year 1958. Although,Bthe appellants have lost claim in respect of land measuring 4971.5sq. yards which is falling as part of 2 acres and 20 guntas of land,but that would not lead to losing of the title of the appellants overthe entire land measuring 2 acres and 20 guntas. [Para 42][1235-H; 1236-A]

C8. Therefore, by virtue of the provisions of GovernmentGrants Act, 1895 read with Section 17(2)(vii) of the RegistrationAct, 1908, transfer of land to the appellant is complete. Theappellant is the owner of the aforesaid land. The applicants havenot produced any document regarding the patta in favour of ShaikAhmed. They have not proved the title of their vendor so as toDclaim rightful title over the land in question. Further, no pattacould be granted to the applicants as the land was transferred bythe State in their favour on 19.3.1958 and possession was claimedon the strength of sale deeds executed on 12.12.1959. [Para43][1236-B-C]

9. Apart from the fact that the transfer of title in favour ofthe Union is complete when the possession was delivered, buteven thereafter, the military land register and general landregister produced by the appellants show the possession of theappellants over such land. The military land register and generalFland register are public documents within the meaning of Section74 of the Indian Evidence Act, 1872 (Evidence Act) containingthe records of the acts of the sovereign authority i.e., the Unionas well as official body. Still further, Section 114 of the EvidenceAct grants presumption of correctness being an official act havingbeen regularly performed. Therefore, in the absence of anyGevidence to show that such records were not maintained properly,the official record containing entries of ownership and possessionwould carry the presumption of correctness. In view of the transferof land on 10.10.1956 followed by delivery of possession on

19.3.1958 and continuous assertion of possession thereof, it leadsto the unequivocal finding that appellants are owners and inpossession of the suit land. [Para 44][1236-C-F]

10. The third question is to examine whether the appellantsare land grabbers and the Tribunal has jurisdiction to entertain apetition under the Act. The objection of the appellants that theyare not land grabbers and that the State Legislature will have nojurisdiction over the property of the Union need not to beexamined in view of the finding that the appellants are in factowners of the land in question. [Para 45][1236-F-G]

K. Ethirajan (Dead) by LRs. v. Lakshmi & Ors. (2003)10 SCC 578 : [2003] 4 Suppl. SCR 33 – heldinapplicable.

Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC141 : [2010] 11 SCR 756; Daryao & Ors. v. State ofU.P. & Ors. AIR 1961 SC 1457 : [1962] SCR 574;State of Karnataka & Anr. v. All India ManufacturersOrganisation & Ors. (2006) 4 SCC 683 : [ 2006] 1Suppl. SCR 86; Ramadhar Shrivas v. Bhagwandas(2005) 13 SCC 1; Mahboob Sahab v. Syed Ismail andOthers (1995) 3 SCC 693 : [1995] 2 SCR 975;Govindammal (Dead) by LRs & Ors. v. Vaidiyanathan& Ors. (2019) 17 SCC 433 : [2019] 17 SCC 433 –relied on.

Munni Bibi (since deceased) & Anr. v. Tirloki Nath &Ors. AIR 1931 PC 114 – referred to.

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 2049of 2013.

From the Judgment and Order dated 25.04.2011 of the High Courtof Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 26811of 2008.B

With

Civil Appeal No. 13 of 2012.

Vinay Navare, B. Adi Narayana Rao, R. Balasubramanian,Sr. Advs., D. Bharat Kumar, Tadimalla Bhaskar Gowtham, Aman Shukla,CHathindra Manda, Dasari Muralee Mohan, Abhijit Sengupta, PramodDayal, Ms. Prerna Singh, K. Subba Rao, K. Satyanarayana Murthy,Aniruddha P. Mayee, Chandra Prakash, Akshay Amritanshu, Ms. SwatiGhildiyal, Arvind Kumar Sharma, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DHEMANT GUPTA, J.

1. The present appeals are directed against an order passed bythe High Court of Judicature at Andhra Pradesh on 25.4.2011 wherebyan order passed by the Special Court, Hyderabad[1] under the AndhraPradesh Land Grabbing (Prohibition) Act, 1982[2] on 19.9.2008 was notEinterfered with.

2. Brief facts leading to the present appeals are that the respondentNos. 1 to 6[3] being legal heirs of Late Sri S.V. Srinivasulu Naidu filed anapplication under Section 8 of the Act before the Tribunal alleging thatthe land measuring 7128.5 sq. yards in Survey No. 299/2 (old SurveyFNo. 403/1), Ward No. 8, Block-3, Shaikpet Village, Hyderabad, is theland grabbed by the Union of India. It was pleaded that notification isrequired under Section 8(6) of the Act, which was published in the extraordinary Gazette of Andhra Pradesh on 22.1.2004 but no objectionsagainst the same were received. The applicants alleged that their fatherhad purchased 2 acres 27 guntas of land in Survey No. 299/2 from oneGShri Shaik Ahmed under two registered sale deeds dated 12.12.1959(Exhs. A1 and A2). The purchaser, i.e., the father of the applicants wasput in possession thereof. Out of the total land purchased by the father

1 For short, the ‘Tribunal’

2 For short, the ‘Act’

H3 Hereinafter referred to as the ‘applicants’

of the applicants, 7 guntas of land was taken over for the purpose ofwidening of road and remaining part i.e. 2 acres 20 guntas (12100 sq.yards) was held by him. It was further alleged by the applicants thattheir father sold the land measuring 4971.5 sq. yards out of 12100 sq.yards in Survey No. 299/2 with specific boundaries via registered saledeed dated 20.3.1964 (Ex.A3). The remaining part of the land i.e., 7128.5sq. yards was however retained by their father.

3. It was alleged that the Military Contract Committee startedconstructing sheds on the land sold by the father of the applicants. As aresult, the purchasers filed original suit[4] on or about 14.4.1965 againstthe Union of India, State of Andhra Pradesh and the father of theapplicants, which was later assigned as suit OS No. 175 of 1970 (OldNo. 72 of 1965). The Plaintiff claimed that his vendor Shaik Ahmed andthen the father of the applicants was the owner in possession of theproperty since purchase of the property on 20.3.1964, but the contractorsof the first defendant, the appellant herein, trespassed into the scheduleproperty on 12.7.1964. The Plaintiff thus sought possession of the landpurchased or in the alternative, recovery of sale consideration paid tothe father of the applicants. It was inter-alia pleaded as under:-

“4. Under these circumstances, Sri Shaik Ahmed sold the entireAc.2-27 guntas of the said property to Sri S.V. Srinivasulu Naidu,I.P.S., Superintendent of Police, Crime Branch (C.I.D.),Hyderabad, the 3[rd] defendant herein by means of two sale deedsdated 12-12-1959 and put the latter in possession of the same.While in possession and enjoyment of the same, and paying taxesthereon, the said Sri S.V. Srinivasulu Naidu (the third defendantherein) sold 4971 ½ square yards of site out of the said S.No.299/2, of Shaikpet village more fully described in the schedule givenbelow and herein after called the schedule property to the plaintiffsherein by means of sale deed dated 20-3-1964 for considerationof Rs. 28,000/-. Ever since the date of sale, the plaintiffs hereinhave been in undisputed possession and enjoyment of the scheduleproperty. Thus the plaintiffs are the absolute owners of the scheduleproperty enjoying the same with absolute rights.”

4. The schedule property was the property purchased by theplaintiff. In the written statement filed by the father of the applicants, itwas stated that the said defendant had perfect right and legal title to the

4 Hereinafter referred to as the ‘first suit’

Aland when he effected sale in favour of the Plaintiffs. The said defendantasserted that he had no objection to the Plaintiff suit being decreed. It ispertinent to mention that the said defendant had not filed any counterclaim of possession of the remaining land after selling the land to thePlaintiff. The parties went to trial on the following issues:

B“1. Whether the plaintiffs and their predecessor in interest hadtitle to and possession over the suit land within 12 years prior tothe suit?

2. Whether the suit land belonged to Ex-Hyderabad State Armyand whether it was subsequently handed over to defendant No.1Cin 1958?3. Whether the patta and the settlement relied upon by the plaintiffwere cancelled and if so, whether the cancellation is legal andvalid?

4. Whether the suit land was auctioned by defendant No.1 forDgrazing and grass cutting?

5. To what damage if any, are the plaintiffs entitled against the 3[rd]defendant alternatively?

6. To what relief, if any are the plaintiffs entitle?”

E5. The Learned Trial Court decided Issue No. 1, whereby thefollowing findings were recorded: -

“19. Another piece of evidence available from the material onrecord is Ex.B.22. It is letter from the Tahsildar (West) to thecommissioner of the Municipality wherein it is clearly mentionedFthat No.299/2 is the patta land of Shaik Ahmed and that AbdulGani named mentioned has no concern with it. Third one is theorder of the land record officer B.21 wherein it is clearly mentionedthat S.No.129/(ld) and 403 (new) measuring (7) acres was grantedas patta to Shaik Ahmed this material is quite sufficient to concludethat Shaik Ahmed has his possession over the suit land since 1339GFasli.”

20. Next point to be considered is whether Shaik Ahmed sold thesuit land to the third defendant. His totally manifest by the twoagreement of sale B.2 and B.3 and the two subsequent registersale deeds Ex.B.4 and B.5. In this matter B.7 entered witnessH

box. Shaik Ahmed is stated to have died few years ago. DW-2has testified this matter. Third defendant as DW.1 stated that hepurchased the land in 1959 and shortly after one Heeralal filed asuit against him claiming the suit land. That suit ultimately endedin compromise. Ex.B.26 and B.27 are the two receipts ofHeeralal in acknowledgement of the receipt of money and alsoabout compromising the matter.

21. Ex.B.28 to show that Chintal Basti Samshan Committeemember objected and alleged that portion of the suit land wasthe grade land and therefore, the third defendant cannot occupyit. In that connection, the third defendant made compromise bygiving some land as well as some cash amount to the saidcommittee members and ended that matter. According to D.3 hedid not find time to construct his proposed house on account ofthe above mentioned dispute. Meanwhile the plaintiffs approachedhim and he sold the suit land to them. The Sale Deed executed byhim i.e. within four months the alleged encroachments was made.In this brief period the plaintiffs were not expected to do any thingin exercising of their rights as purchasers. These facts coupledwith the documents stated above, are quite sufficient to concludethat the plaintiff and their predecessors in title and undoubtedby their possession over the suit land within twelve years priorto the alleged trespass. In other words, the plaintiffs havesuccessfully, discharged the onus placed on them under issue No.1,therefore find this issue in the affirmative.

(Emphasis Supplied)

27………………………Thus viewed from any perspective thereis no material to believe that the suit belonged to the Ex HyderabadState Army and that is was subsequently handed over by theSecond defendant to the first defendant. I therefore, find this issuein the negative.”

6. The suit was thus decreed on 13.8.1970 declaring the plaintiffsas title holders of the suit property. An appeal was filed by the Union ofIndia before the High Court of Andhra Pradesh but the said appeal wasdismissed on 31.3.1975. Thereafter, the plaintiffs in the suit filed executionpetition in which the applicants had chosen not to participate. The fatherof the applicants died on 17.6.1993. Thereafter, the applicants invokedthe jurisdiction of the Tribunal.

A7. The applicants asserted before the Tribunal that they are originalowners of the land in question and the Government had no right or titleover the property. While relying upon proceedings initiated by thePlaintiffs, the applicants asserted as follows:-

“………………..The said suit as contested and the Hon’ble 4[th]BAddl. Judge, City Civil Court, Hyderabad had decided the issuesof title and possession along with other issues vide judgment anddecree dated 13.08.1970. It is submitted that the Hon’ble IVAdditional Judge had held that our father is the owner and was inpossession of the property since more than twelve years.”

C8. The appellant herein filed written statement, inter alia, pleadingthat the application is not maintainable as it does not disclose the factsrelating to the alleged land grabbing. It was also pleaded that the factsnarrated by the applicants themselves show that they have lost theirpossession long ago and after being dispossessed, the applicants hadfailed to take any steps to get the land restored to them. The filing of theDsuit and dismissal of appeal was accepted. It was also pleaded that inexecution of the previous decree, the decree holder and the applicantshad entered into written compromise which was filed in executionapplication No. 220/95 seeking recording of satisfaction of the decree.In such proceedings, the Union proposed for exchange of the defenceEland with the decretal land in response to letter dated 19.8.1995. Interms of such compromise, possession of the land measuring 4971.5 sq.yards was delivered to the decree holder on 14.12.1995. It was statedthat the schedule land is defence land and appellant is not land grabber.It was further asserted that the Tribunal was not competent to decidethe title of the appellant for it being defence land. Still further, it wasFstated that the land measuring 2 acres 20 guntas was in possession ofthe applicants since 1.4.1958 when it was handed over to the Governmentof India, Ministry of Defence by the Collector, Hyderabad. The stand ofthe appellant in the written statement inter-alia is as under:-

“7………………………. Therefore, the Statement of theGapplicant that since the construction was started in the landbelonging to the subsequent purchasers, they filed the suit isappears to be absolutely ridiculous because the whole extent ofthe land measuring 2 acres 20 guntas was under the possessionof the defence and the applicant had not claimed the suit schedule

land at any point of time before 16.01.1996. So it could be clearlyseen that the suit schedule land was under the possession of thedefence more than 30 years before claiming by the applicant.The contention of the applicant that IV Additional Judge, CityCivil Court, Hyderabad held that his father is the owner and wasin possession of the property since more than 12 years is wrong.The Hon’ble Judge in issue No. 6 had stated that the “Vendor”,the third defendant has satisfactorily proved by adducing oral aswell as documentary evidence that he as well as his predecessors-in-title, Shaik Ahmed were in possession of the suit land i.e. only4971 sq. yards whereas the applicant is claiming the remainingextent of land msg 7128.5 sq. yards.8……………………. To settle the matter, the Government ofIndia, Ministry of Defence vide post copy of telegram No. 31/27/L/L&C/64 dated 11.08.1995 conveyed approval for exchange ofthe defence land with that of decretal land within PensionPaymaster’s Office. Accordingly the Counsel for the decreeholders have accepted the said exchange proposal on 19.08.1995.On receipt of the acceptance, joint survey was conducted to markthe decretal land measuring 4971.5 sq. yards. Accordingly planshowing the total extent of the defence land, the land alreadydecreed by the lower court in OS No. 175/1970. Accordingly anextent of land admeasuring 4971.5 sq. yards handed over thedecree holders by proceedings dated 14.12.1995 of the AdvocateCommissioner and the Contempt Case No. 411/1995 was finallyclosed on 15.12.1995, since land was handed over to the partiesas per the compromise Memo.

xxxxxxxx

10 ………………………………The above land is under thepossession of the Union of India for the last several years whichis more than 30 years. Shri S.V. Srinivasulu Naidu so called ownerof the subject land did not filed any suit of claiming the propertywhich is under the occupation of the Union of India for the lastmore than 30 years. The said S.V. Srinivasulu Naidu was onlyDefendant No.3 in the above suit and appeal and as such by virtueof the decree passed in the said cases do not create right infavour of Sri S.V. Narsimhulu Naidu to claim any land which is

under the occupation of Union of India on the basis of belowgrounds:-

xxxxxxxx

13. With regard to unnumbered para 14 to 16 of the petition, it issubmitted that the contention of the applicant in this para is thatBthey are the owners of the schedules land is hereby denied. Landadmeasuring 2 acres 20 guntas situated at Shaikpet Village,Golconda Mandal Hyderabad which was the property of Nizamforces and used as “Minature Rifle Range” was handed over tothe Government of India, Ministry of Defence on 01.04.1958 videCBoard proceedings dated 19.03.1958 by the Collector and the sameis vested with the Government of India under Article 295 (i) ofthe Constitution of India. Being defence land, the department isnot the land grabber. For the defence land enactment of theParliament is applicable whereas Land Grabbing Court is havingjurisdiction only on the State Land.

It is submitted that on the basis of uninterrupted possessionof the defence over the schedule property from more than last 30years and as the Land Grabbing Court is having the jurisdictiononly on the State Land the above case is not maintainable beforethis Hon’ble Court….”.

9. The learned Tribunal framed the following issues on the basisof pleadings of the parties:

“(1) Whether the applicants are the owners of the applicationschedule property?

(2) Whether the rival title set up by the respondents is true, validand binding on the applicants?

(3) Whether the respondents are land grabbers within the meaningof the Act XII of 1982?

(4) Whether the respondents prescribed title by adverseGpossession?

(5) To what relief?”

10. The appellants had never asserted their possession as adverseor hostile to the knowledge of true owner. The plea of the appellant wasHthat they are in possession of the said property as owners for the last 30

years. Therefore, issues were not correctly framed. Accordingly, IssueNos. 1 and 2 were decided together.

11. In evidence, the applicants examined PW 1 - S. Janardhanwho had produced sale deeds by which their father had purchased theland but the patta said to be executed in favour of Shaik Ahmed was notproduced. perusal of the two sale deeds Ex A1 and A2 executed bythe said Shaik Ahmed also does not disclose the date of any patta. Thus,in the present proceedings, neither the sale deeds have mentioned aboutthe patta nor such patta had been produced or proved on record. In fact,the entire claim is based upon the judgment in the first suit, which isevident from the statement of PW 1, when he said that “a DivisionBench of the Hon’ble High Court reported in 1990 has categoricallyheld that once the Hon’ble Court upheld the title and possession in earlierproceedings, it is not open for any one of the authorities to deny thesame taking untenable pleases. Once the source of title is common, anyparty taking different plea in subsequent proceedings is barred by resjudicata”.

12. The Tribunal inter-alia returned the following findings:

“52. Srinivasulu Naidu purchased the land under Exs.A-1 and A-2 in the year 1959. There is finding in that suit that 12 yearsprior to filing of the suit, Shaik Ahmed and Srinivasulu Naiduhad been in possession of the land. So the land has been intheir continuous possession since 1949-50. Delivery of Acs.2.27guntas of land to the Defence by the State Government is only apaper delivery as per Ex.B14 proceedings. So it can be inferredthat actual delivery of land of Acs. 2.27 guntas was not made andit is only paper delivery. This land alone was not alleged to havebeen delivered as per Ex.B14 proceedings dt. 19-3-58. AboutAcs.1500-24 guntas of land in four different plots in different areaswas ordered to be delivered by the State Government to the Unionof India. According to the Union of India, Acs.2.27 guntas is partof Asfanagar lines which is shown as item No. V in Ex.B-14 atpage No.2.

xxxx

57. The contention of the Advocate for the respondents is thatwhen the Union of India claimed that it is in possession since1958 in the suit OS 175/70, title to the balance land is to be decided

Aelsewhere. It is further contended that Exs. A1 and A2 sale deedsare valid and title passed to the applicants but to show whetherShaik Ahmed had title or not for the remaining land, suit is notfiled by the applicants. Therefore, the applicants waived their rightand their claim is time barred. When finding is given in thesuit that State Government which gave land to Union of IndiaBhas no title and that Srinivasulu Naidu and his vendor hadtitle, there is no need for Srinivasulu Naidu to file anothersuit for declaration of his title.

xxxx

C59. If the land which was delivered to R-1 herein and to the otherdecree holders in execution proceedings, in exchange of suitschedule land owned by Srinivasulu Naidu, the exchange itself isillegal. Without establishing title to the remaining land by the Unionof India the Union of India has entered into the compromise forexchange of the Application schedule land. Compromise canDbe made between the decree holders and judgment debtors withregard to the decree schedule land only but it should not be inrespect of some other land not covered by the decree. For retainingthe decreetal schedule property by Judgment Debtors, some otherland which is not subject matter of the suit was given to the decreeEholders. Union of India was aware that this land which wasdelivered to decree holders in exchange was mentioned asboundary to the decreetal schedule property belonged to SrinivasuluNaidu. Srinivasulu Naidu was party to the suit. Even thoughno relief is granted against Srinivasulu Naidu in the said suit,at-least notice should be given to Srinivasulu Naidu orFSrinivasulu Naidu should be made party to the compromise,when he claimed title and possession to that land which wasgiven to the decree holders in exchange.

90. In the case on hand the title to the application schedule land isnot in issue in the earlier suit. The issue was with regard to thetitle for the suit schedule land which was purchased by the plaintiffsfrom Srinivasulu Naidu. Exs.A1 and A2 are the sale deeds whichwere relied on by the plaintiffs to establish their title for 4971 sq.yards. For the remaining land there was no issue. No finding isgiven with regard to the title for the remaining land of Srinivasulu

Naidu. The remaining land of Srinivasulu Naidu’s is shown asboundary on three sides of the suit land purchased by the plaintiffsfrom Srinivasulu Naidu. finding is given in the suit that the landpurchased by Srinivasulu Naidu under Ex.A1 and A2 is patta landof Shaik Ahmed. To decide the title of the plaintiffs in 4971 sq.yards title of Srinivasulu Naidu covered by Exs.A1 and A2 wasalso considered. Therefore, there is identity of title in OS 175/70and in this land grabbing case. Hence, the finding in the suit bindsthe respondents.

91. The findings in the suit binds the Union of India as thetitle in the two litigations is one and the same. The StateGovernment did not prefer the appeal against the Judgmentand decree in OS 175/70. The Union of India claims titlethrough the State Government. In the suit, finding is giventhat the land is patta land of Shaik Ahmed and not the StateGovernment land. Therefore, that finding became final and bindsboth the Governments and other parties to the suit. The appealCCCA No-30/1972 preferred by the Union of India against thejudgment and decree passed in suit OS 175/70 was dismissed bythe Hon’ble High Court. finding was given by the High Courtthat the land covered by Exs.B-38 marked in the i.e. the landcovered by Ex.B25 herein was not correlated to the suit land.The suit land is part of the land covered by Exs.A1 and A2 saledeeds herein. The Union of India contends that the entire land ofAcs.2.20 guntas was delivered as per Ex.B38 proceedings. Inthe letter dt. 25-4-1960 which was addressed by the Tahsildar,Hyderabad to the Collector Hyderabad District it is mentionedthat the tounch map available in this office shows that Sy.No.299/2 is the same place where the rifle range is shown in the mapof I.S.F lands, Mallepally. Neither the tounch map nor the map ofISF lands has been produced. The letter therefore loses all itsimportance. The letter however, shows that patta was sanctionedto Shaik Ahmed prior to the preparation of the maps.”(Emphasissupplied)

13. The High Court in petition under Article 226 of the Constitutionaffirmed the order of the Tribunal and held as under:

“17. Originally, the land to an extent of Acs.2.27 gts in Sy.No.299/2 was purchased by S.V. Srinivasulu Naidu, the father of the

applicants under Exs.A1 and A2 sale deeds. After Ac.0.07 gts ofland was affected in road widening, the remaining extent of landis Acs.2.20 gts equivalent to 12,100 sq. yards, out of which, 4,971sq. yards was sold by the father of the applicants to one V. KrishnaMurthy and others under Ex.A3. Now, the disputed land is 7,128.5sq. yards. The possession of land to an extent of Acs.2.20 gts bySrinivasulu Naidu from 1959 to 1964 was established in O.S. No.175 of 1970 wherein the dispute with regard to the land to anextent of 4,971.5 sq. yards out of Acs.2.27 gts between V. KrishnaMurthy and others/plaintiffs with the Union of India/respondenthas been decided through the judgment and decree dated13.08.1970. The delivery of the land to an extent of Acs.2.27 gtsto the Union of India by the State Government was negatived inthat suit. The possession of Srinivasulu Naidu in the land on threesides of the decretal land is admitted by R.W.2 as per the contentsof Ex.B21. Since the said judgment and decree in O.S. No. 175of 1990 had attained finality in view of the dismissal of appealbeing CCCA No. 30 of 1972 filed by the Union of India, theplaintiffs have proceeded for its execution. Therefore, the fatherof the applicants had got title and possession over the part of theland sold by him.

18. The contention of the Union of India that the entire land to anextent of Acs.2.20 gts was delivered to the Central Governmentas per Ex.B28 proceedings cannot be accepted as the land to anextent of Acs.2.20 gts was shown as Minature Rifle Range atMallepally village area as per Ex.B14 and not in Shaikpet villageand as such, the Special Court held that the land to an extent ofAcs.2.20 gts covered by Exs.A1 and A2 belongs to SrinivasuluNaidu and they are valid documents.

19. When the execution proceedings are pending, respondent No.1claimed 1/3rd share in the entire land covered by the decree inO.S. No.175 of 1990 as assignee from one of the decree holdersi.e., V. Krishna Murthy under assignment deed dated 18.03.1992,which admittedly has not been produced before the Court. Toavoid demolition of the Pension Payment Office and to avoid thecontempt proceedings, the Union of India made exchange offerto five equal extent of vacant land lying adjacent to the decreeschedule property though it is not its property. The Special Court

observed that after exchange, an extent of 2627.87 sq. yardscovered by decree shown as ‘B’ portion is delivered to R1 andalso observed that respondent No.1 got possession of the land ofSrinivasulu Naidu after exchange, his possession is illegal andunlawful.”

14. The order passed by the Tribunal and that of the High Courtwas based on the decree in OS No. 175/1970 though the said suit wasonly in respect of 4971.5 sq. yards comprising in Survey No. 299/2. Theplaintiffs in the aforesaid suit had pleaded that the applicants hadpurchased 2 acres 27 guntas of land vide two sale deeds and that theplaintiffs are purchasers of 4971.5 sq. yards.

15. Learned counsel for the appellant argued that the subject matterof the first suit was only 4971.5 sq. yards which was purchased by theplaintiffs. The issue was in respect of title of the plaintiffs over the saidland alone. Though there was an issue as to whether the land belongs toHyderabad State Army and that it has been handed over to the Union in1958, but such issue was decided against the appellants. However, thefinding on such issue would be restricted to the land which is subjectmatter of the suit and not the entire land which was handed over to theUnion by the State of Andhra Pradesh.16. The transfer of land by the State of Andhra Pradesh to theUnion was not required to be registered by registered instrument inview of Section 17(2)(vii) of the Registration Act, 1908, which reads asunder:

“17. Documents of which registration is compulsory.

(1)The following documents shall be registered, if the propertyto which they relate is situate in district in which, and ifthey have been executed on or after the date on which, ActXVI of 1864, or the Indian Registration Act, 1866, or theIndian Registration Act, 1871, or the Indian RegistrationAct, 1877, or this Act came or comes into force, namely,

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport oroperate to create, declare, assign, limit or extinguish, whetherin present or in future, any right, title or interest, whether

vested or contingent, of the value of one hundred rupeesand upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge thereceipt or payment of any consideration on account of thecreation, declaration, assignment, limitation or extinction ofBany such right, title or interest; and

xxxxxx

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to –

xxxxxx

C(vii) any grant of immovable property by Government;”

17. Section 2 of the Government Grants Act, 1895 provides thatthe Transfer of Property Act shall not be applicable to Government grants.Therefore, the condition in Section 54 of the Transfer of Property Actthat immovable property of the value of one hundred rupees and upwardsDcan be transferred only by registered instrument is also not applicableto the Government Land. Section 2 reads as under:

“2. Transfer of Property Act, 1882, not to apply to Governmentgrants. - Nothing in the Transfer of Property Act, 1882, containedshall apply or be deemed ever to have applied to any grant orEother transfer of land or of any interest therein heretofore madeor hereafter to be made by or on behalf of the Government to, orin favour of any person whomsoever; but every such grant andtransfer shall be construed and take effect as if the said Act hadnot been passed.”

F18. It was argued that the land was transferred to the Union videletter dated 10.10.1956 when 1650 acres and 2 guntas of land including378 acres and 16 guntas of land of Asafnagar lines were transferred tothe Government of India. Subsequently, on 24.8.1957, land measuring150 acres 8 guntas attached to Chandrayangutta lines was excluded andthe Collector was requested to make early arrangements of handingGover of the land measuring 1500 acres 24 guntas to the Military EstateOfficer. In pursuance of such communication, the possession of landmeasuring 1500 acres 24 guntas was handed over to the Union of Indiain the proceedings dated 19.3.1958.

19. In the communication dated 10.10.1956, as mentioned above,the State of Andhra Pradesh had transferred 1650 acres 2 guntas ofland. However, later on 24.8.1957, the land measuring 150 acres and 8guntas situated in Chandrayangutta Lines was excluded. Thecommunication dated 10.10.1956 reads as thus:

“From:

The Chief Secretary to GovernmentGeneral Administration Department

Hyderabad Deccan.

ToThe Secretary to Govt. of India

Ministry of Defence,

New Delhi.DSubject:- ALLOCATION OF OLD HYDERABADCANTONMENT LANDS BETWEEN THE DEFENCEMINISTRY AND THE STATE GOVERNMENT

Sir,

I am directed to refer to this Govt. Letter No. 1065 CAD Armydated the 9[th] July, 1952 addressed to the Ministry of States (NowHome Affairs Ministry) New Delhi (Copy enclosed for readyreference) and to say that as stated therein agreement was reachedbetween the Government of India and the Hyderabad Govt. inregard to the allocation of the late Hyderabad Army buildings andaccording to the agreement the following lines in the Hyderabadproper have been treated as ISF lines property of the Govt. ofIndia.

1) Mohammadi Lines.

2) Ibrahim Bagh Lines.

3) Makai Darwaza Lines.

4) Asafnagar Lines

5) Masab Lines.

6) Chandrayangutto Lines

Similarly agreement was reached regarding the followingHyderabad Army line and building in the Hyderabad proper beingtreated as non-ISF lines property of the Hyderabad Govt.

1) Fateh Darwaza Lines.

2) Mallapalli Lines.

3) A.C. Guards (Saifabad) Lines.

4) Nampally Lines.

5) Central Military Hospital Building (New Sarojini Devi Hospital)

6) Banjara Darwaza Lines.

7) Band lines Fath Maidan.

8) Mysaram Lines.

As stated in the above cited letter the question of allocating theHyderabad Cantonment lands between the two Govts has beenengaging the attention of this Govt. for some time past and inorder to reach an agreement between the Centre and the Statefor the allocation of these lands this Govt. had proposed in theletter referred to above that all lands in the vicinity of the ISFbuildings or meant for the use of occupants of ISF Buildings shouldbe treated as ISF or Central Govt. property and the rest as non-ISF property falling to the share of Hyderabad State. It was alsomade known to the Govt. of India, in our above letter and DO No.661/GAD Army 54 dated the 27[th] /28[th] Aug 54 addressed to youthat this Govt. had asked their survey to carry out the survey andthe demarcation of the ISF and non-ISF lands. That work hassince been completed.

The State Government having examined the entire question ofthe demarcation of appurtenant lands carefully suggest for theacceptance of the Govt. of India the allocations as indicated in aset of maps (five in number) forwarded herewith. The appurtenantlands attached to ISF Lines are shown in green colour while thelands appurtenant to non-ISF lines are indicated in blue colour.

The recommendation of the State Govt. briefly envisages theallocation of lands as under:

According to the agreement reached between the two Govt.Banjara Darwaza Lines. Property of the State is being exchangedfor Masab lines. Property of the Centre is being exchanged videthis Govt’s endorsement No. 197 GAD 21 Army 56 dated 26[th]June 56. Hence Masab Lines are omitted here and shown undernon-ISF Lines below - Banjara Darwaza Lines are shown asCISF instead.

“From the above it will be seen that 1650 acres 32 guntas will goto the Centre and 974 acres 04 guntas fall to the share of theState.

I am to request you to kindly to communicate early concurrenceHof the Govt. of India to the above allocation of the ex Hyderabad

ACantonment lands to the Centre and the State so that the landsfalling to the share of the Govt. of India may be hand over to thelocal Military authorities.

An early reply will be very much appreciated.

Yours faithfully

BHARAT CHAND DHANNADeputy Secretary to the Govt.10.10.1956

ISF AND NON-ISF LANDS-HYDERABAD

10/10/56"

20. The ISF lines are the Indian Security Forces lines whereasthe non-ISF lines refer to the non-Indian Security Forces lines such asthat of State of Hyderabad. The Asafnagar lines measuring 378 acresand 16 guntas is part of ISF line. In the appendix attached to the saidcommunication, the Asafnagar lines are shown as Mallapally areameasuring 378 acres and 16 guntas. The land described as MiniatureRifle Range measuring 2 acres 20 guntas is the subject matter of theland in the present appeals. Mallapalli lines are mentioned as non-ISFlines but measures about 450 acres and 12 guntas. Thus, it is argued thatin the appendix, Mallapally area is distinct from Mallapalli lines. TheMallapally area is either synonymous with Asafnagar lines or on accountof mistake but has equivalent measurements with Asafnagar lines.

21. The proceedings of the Board of the Appellant with theCollector of Hyderabad in respect of delivery of possession of 1500acres and 24 guntas as recorded in the letter dated 19.3.1958 (Ex B-14)read as thus:

“PROCEEDINGS of Board of officers

[2021] 4 S.C.R.

STATE FORCES LANDS INHYDERABAD ACCRUING TOTHE SHARE OF THE ARMY

PRESIDING OFFICER

2. Shri H.S. GUNDAPPARep. M.E.S. GarrisonEngineer3. Shri D.D. ANANDRep. ML & MEOSECUNDERABAD

4. SHRI RAMASWAMY NAIDURep. of the Collector of

HYDERABAD

The Board having assembled pursuant to order, proceededto ascertain from the Land Records, the details of the Property tobe taken over and its location and boundary. The Collector’sRepresentative Mr. Ramaswamy Naidu furnished the followedinformation regarding this from the Land Records, though theextent of the land to be taken over by the Central Government isnot finalized.

(a)According to the Government of India letter No. 70732/Q3(Plg)VOL-II/18-S/Q/D(QTD) & LHD dated 11[th] March1957 to the Secretary to the Government of Andhra PradeshGeneral Administration (Military Department) Hyderabad,1650 acres and 32 guntas of lands appurtenant to Asaf NagarLines, Mohammadi Lines, Ibrahim Bagh Lines, MakkaiDarwaza Lines, Banzara Darwaza Lines as per Annexure“A” are to be taken over by the Army authorities. The detailsof the above area is contained in the enclosures to the StateGovernment letter No. 392 GAD 23[rd] Army 56 dated10[th] Oct 56 which is enclosed as Annexure “B”.

(b)Subsequently vide GAD Memorandum No.2733/57-2Adated 24[th] Aug 57 addressed to the Collector and copies tothe Military Estates Officer, Administrative Commandant,Station Headquarters, Secunderabad and the Board ofRevenue appended as Annexure “C” an extent of landsmeasuring 150 acres and 8 guntas appurtenant toBChandrayan Gutta Lines should be deducted from 1650acres 32 guntas and the rest of the land i.e. 1500 acres and24 guntas alone are to be handed over to the Militaryauthorities. This is to be confirmed by Army Headquarters.In pursuance of this, the following areas are to be takenover by the military authorities:-C

2.The Plans for the above are enclosed as Annexure “D”,“E”, “F”. The areas have been traversed by the StateSettlement Department and stone pillars have also been fixedon the ground. Those have been physically verified by theBoard at the sites. At present the boundary stones aremarked with tar temporarily. Those are to be permanentlyengraved.

3.The Board observed during its physical verifications on theground that there are several encroachments in all the Lines,which are taken over. These encroachments are as furnishedby the Collector ‘Land’ Acquisition Hyderabad in his letterNo. RC-CIO/1522/Hyd/58 dated 9[th] May, 58. Vide annexure.The Board observed that the encroachments are in the nature

Aof both built up areas (permanent and temporary) andcultivated areas. The board was informed by the Collector’sRepresentative that some areas of land falling within theboundary limits of the lands being taken over by the Armyauthorities have been leased out by the Civil authorities foragriculture, grazing and other commercial purposes. listBof such leases with details and terms of those leases, asfurnished by the Collector’s Representative is attached asAnnexure “H”.

4.Though the buildings in Banjara Darwaza Lines, have notyet been handed over by the State P.W.D, being still inCoccupation by the H.S.R.P. units, the lands appurtenantthereto, as per the above schedule is taken over.

5.During the physical verification and taking over of lands atsite, the Board observed the following:-

D(a) Asafnagar Lines

i) The demarcation line between Sarojini Devi Hospitaland Asafnagar Line requires to be re-marked by fixingadditional boundary stones from boundary pillarsNo.46 to 113 by the State authorities. Action is inhand.

ii) The State’s Government representative Shri.Ramaswamy Naidu stated that an enclave betweenpillars 76 to 100 including Asafnagar pumping stationand building known as Hussain Gulshan and adjoiningcultivated area, comprising of total acreage of 44is not now to be handed over and incorrectly computedin the area of 378 acres and 16 guntas, mentioned atitem (b) of para 1 above, as this comprises of StateGovernment property (Asafnagar Water Works) andprivate property.

(b) xxxxxx

(e) Ibrahimbagh Lines

The boundary pillars exist as per the plan.

6.Regarding the recommendation of the areas for the activeuse of the Army (units in occupation), their future use andsurplus land is being ascertained from the user units with aview to determine the surpluses for handing over to theMilitary Estates Officer.

Presiding Officer -Sd/-

Members 1. Sd/-

2. Sd/-

3. Sd/-4. Sd/-

22. It is further argued that such land is recorded in possession ofthe appellant in the military land register and general land register whichare public documents within the meaning of Section 74 of the EvidenceAct, 1872. Still further, the Court may presume the existence of any factwhich it thinks is likely to have happened, regard being given to thecommon course of natural events, human conduct and public and privatebusiness, in their relation to the facts of the particular case such as (e)that the judicial and official acts have been regularly performed and (f)that the common course of business has been followed in particularcases. Thus, the documents maintained in the course of official dutywould carry the presumption of correctness on the basis of which theUnion cannot be said to be land grabber, which has entitled the applicantsto invoke the jurisdiction of the Tribunal. The Union has unequivocal titleover the land in question. Though, in the first suit, the Union wasunsuccessful but the findings in the said suit would be restricted to landwhich is subject matter of the said suit and not to the entire land.

23. On the other hand, Mr. Rao argued that the land in question isSarf-e-Khas land i.e. crown land of the State of Hyderabad belonging toNizam family. Shaik Ahmed, the seller of the land to the predecessor ofthe applicants was the holder of Patta under the Nizam. Such Patta is adocument of title and therefore, valid title was passed on to thepredecessor of the applicants vide registered sale deed dated 12.12.1959.It was also argued that the decree in the first suit is in respect of entireproperty purchased by predecessor of the applicants, though the claimof plaintiffs was restricted to the land purchased by him. Therefore,

DEF

Asuch decree would operate as res judicata. Reliance was placed upona judgment reported as K. Ethirajan (Dead) by LRs. v. Lakshmi &Ors.[5] wherein it has been held that where the issues directly andsubstantially involved between the same parties in the previous andsubsequent suit are same, though in the previous suit, only part of theproperty was involved while in the subsequent suit, the whole of theBproperty was the subject matter, the principle of res judicata would beapplicable. It was also argued that the act of any person of land grabbingfalls within the scope of the Act and the appellants are also personswithin the meaning of Section 2(g) of the Act. Therefore, the proceedingsinitiated before the Tribunal were valid and have been rightly decided.C24. We have heard learned counsel for the parties. The followingquestions are required to be decided in the present appeals.

(i) whether the order passed in the first suit filed by the plaintiffsas affirmed by the High Court operates as res judicata?

D(ii) whether the appellants have proved their title over the land inquestion?

(iii) whether the appellant is land grabber within the meaning ofSection 2(d) of the Act?

25. The applicants have claimed possession from the appellantsEprimarily on the ground that in the suit filed by the plaintiffs on 14.4.1965,the basis of the suit was purchase of land by the plaintiffs from thefather of the applicants. Since the plaintiffs have been found to be theowners on the basis of purchase of land from the father of the applicants,therefore, the issue of title decided in the said suit would operate as resFjudicata. Therefore, the appellants herein are land grabbers having notitle over the land in question. It may be reiterated that the plaintiffs hadpurchased land measuring 4971.5 sq. yards from the father of theapplicants whereas the remaining land measuring 7128.5 sq. yards wasretained by the applicants. Therefore, the decree in the first suit wasonly in respect of the schedule property in the first suit i.e. 4971.5 sq.Gyards. The patta, the basis of title of the applicants had not been producedin evidence before the Tribunal. Thus, the basic document of title hadnot been produced.

26. In the first suit, the father of the applicants had not filed anycounter claim to assert title or possession over the land in question. Theland admeasuring 4971.5 sq. yards was schedule property and thesubject matter of the first suit. The issue no. 1 in the first suit was inrespect of the possession of the plaintiffs and their predecessor-in-interestover the ‘suit land’ within 12 years prior to the suit. Therefore, therights of the plaintiffs were examined in respect of such suit landmeasuring 4971.5 sq. yards alone, although, to return the finding onpossession and title, possession of the father of the applicants over theland purchased by the Plaintiff was clubbed together on the basis ofpatta claimed to be granted to Shaik Ahmed, though not produced orproved on record.

27. In the second suit filed by the applicants, the entire basis ofsuit was the findings returned in the first suit. There is no independentevidence produced in respect of purchase of land by Shaik Ahmed andthe legality or validity of Patta issued to him. Although, applicants haveasserted that they have been visiting the land in question to verify theirpossession but apart from such plea, there is no evidence that there wasany covert and overt act on the part of the plaintiffs to assert possessionover the land in question.

28. In fact, the appellants had entered into settlement with theplaintiffs by which some of the land in possession was given to the decreeholder in execution with the leave of the Court on 19.8.1995. Such actionwould show the assertion of title by the appellants so as to enter intoexchange of land in satisfaction of the decree. The father of the applicantswas party in the execution proceedings but has not objected to theexchange. It necessarily leads to an inference that the father of theapplicants was not in possession and has not asserted the title orpossession over the remaining land measuring 7128.5 sq. yards. On theother hand, the appellants have categorically asserted that they are inpossession of the land from the date of transfer in the year 1958 whenthe Collector of Hyderabad handed over the possession to them. Theappellants continued to be in unhanded possession over the last 30 years.

29. To examine the arguments that the decree in the previous suitwould operate as res judicata, Section 11 CPC may be extracted:

“11. Res Judicata. – No Court shall try any suit or issue in whichthe matter directly and substantially in issue has been directly and

Asubstantially in issue in former suit between the same parties, orbetween parties under whom they or any of them claim, litigatingunder the same title, in Court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised,and has been heard and finally decided by such Court.

BExplanation I.—The expression “former suit” shall denote suitwhich has been decided prior to the suit in question whether ornot it was instituted prior thereto.

Explanation II.—For the purposes of this section, the competenceof Court shall be determined irrespective of any provisions as toCa right of appeal from the decision of such Court.

Explanation III.—The matter above referred to must in theformer suit have been alleged by one party and either denied oradmitted, expressly or impliedly, by the other.

Explanation IV.—Any matter which might and ought to haveDbeen made ground of defence or attack in such former suit shallbe deemed to have been matter directly and substantially inissue in such suit.”

30. The plea of res judicata is generally raised against theplaintiffs who would be the applicants before the Tribunal. This Court inEa judgment reported as Alka Gupta v. Narender Kumar Gupta[6] heldthat the plea of res judicata is restraint on the right of plaintiff tohave an adjudication of his claim. This Court has culled down the essentialrequirements to be fulfilled to apply the bar of res judicata to any suit orissue. It has been observed as under:

F“20. Plea of res judicata is restraint on the right of plaintiff tohave an adjudication of his claim. The plea must be clearlyestablished, more particularly where the bar sought is on the basisof constructive res judicata. The plaintiff who is sought to beprevented by the bar of constructive res judicata should have noticeabout the plea and have an opportunity to put forth his contentionsGagainst the same. In this case, there was no plea of constructiveres judicata, nor had the appellant-plaintiff an opportunity to meetthe case based on such plea.

21. Res judicata means “a thing adjudicated”, that is, an issue thatis finally settled by judicial decision. The Code deals with resjudicata in Section 11, relevant portion of which is extracted below(excluding Explanations I to VIII):

“11. Res judicata.— xxxx

xxxx

22. Section 11 of the Code, on an analysis requires the followingessential requirements to be fulfilled, to apply the bar of res judicatato any suit or issue:

(i) The matter must be directly and substantially in issue in theformer suit and in the later suit.

(ii) The prior suit should be between the same parties or personsclaiming under them.

(iii) Parties should have litigated under the same title in the earliersuit.

(iv) The matter in issue in the subsequent suit must have beenheard and finally decided in the first suit.

(v) The court trying the former suit must have been competent totry the particular issue in question.”

31. The rule of res judicata is founded on considerations of publicpolicy that the finality should be attached to the binding decisionspronounced by the Courts of competent jurisdiction. This Court in Daryao& Ors. v. State of U.P. & Ors.[7] held as under:

“9. …Now, the rule of res judicata as indicated in Section 11 ofthe Code of Civil Procedure has no doubt some technical aspects,for instance the rule of constructive res judicata may be said to betechnical; but the basis on which the said rule rests is founded onconsiderations of public policy. It is in the interest of the public atlarge that finality should attach to the binding decisionspronounced by Courts of competent jurisdiction, and it is also inthe public interest that individuals should not be vexed twice overwith the same kind of litigation. If these two principles form thefoundation of the general rule of res judicata they cannot be treatedas irrelevant or inadmissible even in dealing with fundamental rightsin petitions filed under Article 32.”

A32. In judgment reported as State of Karnataka & Anr. v. AllIndia Manufacturers Organisation & Ors.[8], this Court has consideredExplanations III & IV of Section 11 CPC. It was held as under:

“32. Res judicata is doctrine based on the larger public interestand is founded on two grounds: one being the maxim nemo debetBbis vexari pro una et eadem causa (no one ought to be twicevexed for one and the same cause [P. Ramanatha Aiyer: AdvancedLaw Lexicon, (Vol. 3, 3rd Edn., 2005) at p. 3170] ) and second,public policy that there ought to be an end to the same litigation[Mulla: Code of Civil Procedure, (Vol. 1, 15th Edn., 1995) atp. 94] . It is well settled that Section 11 of the Civil ProcedureCCode, 1908 (hereinafter “CPC”) is not the foundation of theprinciple of res judicata, but merely statutory recognition thereofand hence, the section is not to be considered exhaustive of thegeneral principle of law [See Kalipada De v. Dwijapada Das,(1929-1930) 57 IA 24 : AIR 1930 PC 22 at p. 23] . The mainpurpose of the doctrine is that once matter has been determinedDin former proceeding, it should not be open to parties to reagitatethe matter again and again. Section 11 CPC recognises this principleand forbids court from trying any suit or issue, which is resjudicata, recognising both “cause of action estoppel” and “issueestoppel”. There are two issues that we need to consider, one,Ewhether the doctrine of res judicata, as matter of principle,can be applied to public interest litigations and second, whetherthe issues and findings in Somashekar Reddy [(1999) 1 KLD500 : (2000) 1 Kant LJ 224 (DB)] constitute res judicata for thepresent litigation.

xxxx

36. We will presently consider whether the issues and findingsin Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ224 (DB)] actually constitute res judicata for the presentlitigation. Section 11 CPC undoubtedly provides that only thosematters that were “directly and substantially in issue” in theGprevious proceeding will constitute res judicata in the subsequentproceeding. Explanation III to Section 11 provides that for an issueto be res judicata it should have been raised by one party andexpressly denied by the other:

H8 (2006) 4 SCC 683

41. With these legal principles in mind, the question, therefore,arises as to what exactly was sought in SomashekarReddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ 224 (DB)] , how itwas decided by the High Court in the first round of litigation, andwhat has been sought in the present litigation arising at the instanceof Mr J.C. Madhuswamy and others. In order to show that theissue of excess land was “directly and substantially in issue”in Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1 Kant LJ224 (DB)] we will first examine the prayers of the parties, thecause of action, the averments of parties and the findings of theHigh Court in Somashekar Reddy [(1999) 1 KLD 500 : (2000) 1Kant LJ 224 (DB)] .”

33. The issue can be examined from another angle as to whetherthe plea of res judicata can be raised by the applicants against their co-defendant in the first suit. In the first suit, the defendant had theopportunity to raise claim in respect of land measuring 7128.5 sq.yards. However, no such claim was raised. In view of Section 11,Explanation IV CPC, the applicants might and ought to have made groundsof defence in the former suit to claim possession of the land measuring7128.5 sq. yards. The consequence would be that failure to raise suchdefence or counter claim would be deemed to be constructive res judicatain terms of Explanation IV of Section 11 CPC. Reference may be made

to judgment of this Court reported as Ramadhar Shrivas v.Bhagwandas[9]. This court was examining situation where in suit forpossession, the defendant Bhagwandas was found to be the tenant ofthe original owner Hiralal and after subsequent purchase, he had becometenant of Ramadhar. The first suit was dismissed on the ground that suitfor possession was not maintainable against Bhagwandas being tenant.In another suit filed by the purchaser, the defendant denied the title ofplaintiff, though such was not the plea in the first suit. In thesecircumstances, the Court held as under:

“23. In the case on hand, it is clear that in the earlier suit, the courthad recorded clear finding that the defendant Bhagwandas wasneither the owner of the property nor could he show any right asto how he was occupying such property except as tenant ofHiralal. If Bhagwandas was claiming to be in lawful possession inany capacity other than tenant, he ought to have put forward

1232SUPREME COURT REPORTS

Asuch claim as ground of defence in those proceedings. He oughtto have put forward such claim under Explanation IV to Section11 of the Code but he had failed to do so. The doctrine ofconstructive res judicata engrafted in Explanation IV to Section11 of the Code thus applies to the facts of the case and thedefendant in the present suit cannot take contention which oughtBto have been taken by him in the previous suit and was not takenby him. Explanation IV to Section 11 of the Code is clearly attractedand the defendant Bhagwandas can be prevented from takingsuch contention in the present proceedings.”

34. The issue as to whether there can be res judicata betweenCco-defendants was first examined by the Privy Council in judgmentreported as Munni Bibi (since deceased) & Anr. v. Tirloki Nath &Ors.[10]. The three principles of res judicata as between co-defendantswere delineated as: (1) There must be conflict of interest between thedefendants; (2) it must be necessary to decide this conflict in order to

Dgive the plaintiff the relief he claims; (3) the question between thedefendants must have been finally decided. This test too is not satisfiedas in order to grant relief of possession to the plaintiffs in the first suit, itwas not necessary to decide the issue of the remaining land between thefather of the applicants and the appellants. The said principle wasreiterated by this Court in judgment reported as Mahboob Sahab v.ESyed Ismail and Others[11]wherein it has been held as under:

“8. Under these circumstances the question emerges whetherthe High Court was right in reversing the appellate decree on thedoctrine of res judicata. At this juncture it may be relevant tomention that the trial court negatived the plea of res judicata as aFpreliminary issue. Though it was open to sustain the trial courtdecree on the basis of the doctrine of res judicata, it was notargued before the appellate court on its basis. Thereby the findingsof the trial court that the decree in OS No. 3/1/1951 does notoperate as res judicata became final. The question then is whetherthe doctrine of res judicata stands attracted to the facts in thisGcase. It is true that under Section 11 CPC when the matter hasbeen directly or substantially in issue in former suit between thesame parties or between parties under whom they or any of themclaimed, litigating under the same title, the decree in the former10 AIR 1931 PC 114H11 (1995) 3 SCC 693

suit would be res judicata between the plaintiff and the defendantor as between the co-plaintiffs or co-defendants…”

35. In recent judgment reported as Govindammal (Dead) byLRs & Ors. v. Vaidiyanathan & Ors.[12], the applicability of res judicatabetween co-defendants was examined. The applicants were thedefendants in the first suit and so were the appellants. In the aforesaidcase, the suit was filed by the respondents claiming title over Scheduleproperty or in the alternative for partition of half share in Scheduleproperty. The Court considered the principle of res judicata within theco-defendants in para 14 which reads as under:

“14. However, there exist certain situations in which the principlesof res judicata may apply as between co-defendants. This hasbeen recognised by the English courts as well as our courts formore than century. The requisite conditions to apply the principleof res judicata as between co-defendants are that (a) there mustbe conflict of interest between the defendants concerned, (b) itmust be necessary to decide this conflict in order to give theplaintiff the relief he claims, and (c) the question between thedefendants must have been finally decided. All the three requisiteconditions are absent in the matter on hand. Firstly, there was noconflict of interest between the defendants in the suits filed by thetemple and the school. Secondly, since there was no conflict, itwas not necessary to decide any conflict between the defendantsin those suits in order to give relief to the temple or the school,which were the plaintiffs. On the other hand, the father of theplaintiffs and the father of the defendant were colluding in thosesuits filed by temple and school. Both of them unitedly opposedthose suits. In view of the same, the principles of res judicatawould not apply.”

36. The applicants have not claimed any title to the land which isclaimed to be in their possession and the subject matter of the first suitwas only 4971.5 sq. yards. Hence, the decree in the said suit is bindingqua the land in suit only.

37. Though the first suit is between the same parties, but thesubject matter is not the same. For res judicata to apply, the matter inthe former suit must have been alleged by one party and either denied oradmitted, expressly or impliedly by the other. Since the issue in the suit

Awas restricted to 4971.5 sq. yards, the decree would be binding qua tothat extent only. The issue cannot be said to be barred by constructiveres judicata as per Explanation IV as it applies to the plaintiff in latersuit. The appellants have denied the claim of the plaintiffs in the first suitto the extent that it was the subject matter of that suit alone. Therefore,the decree in the first suit will not operate as res judicata in the subsequentBmatters.

38. The reliance of Mr. Rao on the judgment of this Court inK. Ethirajan is not tenable. In fact, such judgment has been made thebasis of the impugned orders as well. The reliance is on para 20 of thejudgment, which reads as under:C

“20. The argument that principle of res judicata cannot applybecause in the previous suit only part of the property was involvedwhen in the subsequent suit the whole property is the subject-matter cannot be accepted. The principle of res judicata underSection 11 of the Civil Procedure Code is attracted where issuesDdirectly and substantially involved between the same parties inthe previous and subsequent suit are the same - may be - in theprevious suit only part of the property was involved when in thesubsequent suit, the whole property is the subject-matter.”

40. The said paragraph cannot be read in isolation. The facts onthe basis of which judgment is given are required to be kept in view toEhave an understanding of the background in which such observation hasbeen recorded. One line or paragraph cannot be picked up without goingthrough the facts and the nature of suit. In the first suit, deceased-M. Gurunathan sought eviction of deceased-K. Ethirajan, (plaintiff inthe second suit), from portion of the suit property by claiming exclusiveFtitle. The trial court in the said suit held that the deceased-K. Ethirajancannot be held to be in possession of the suit property as mere licenseeof the deceased-M. Gurunathan. He was held to be in possession of thesuit property as owner since 1940 as evidenced by various documentsof possession filed by him and the joint patta granted by the authoritiesunder the Act of 1948. The trial court also held that deceased-K. EthirajanGhaving remained in continuous possession of the suit property as ownerhad perfected his title by remaining in adverse possession for more thanthe statutory period of 12 years.

40. K. Ethirajan (plaintiff in the second suit), claimed partition ofthe land based on joint patta granted to the Plaintiff and the deceased-H

defendant M. Gurunathan. It is on the basis of this joint patta, the suit forpartition filed by the plaintiff was decreed by the trial court as well as bythe First Appellate Court. This Court found that the issue directly andsubstantially involved in the first suit was to claim exclusive ownershipof deceased-M. Gurunathan to the whole property left behind bydeceased-Gangammal, although eviction was sought of the defendantfrom particular portion of the land on which he had built hut forresidence. The claim of ownership over the entire property was speciallyraised in the first suit. The findings in para 20 were returned in thesecircumstances. It was thus in this background, this Court held that theprinciple of res judicata would apply as in the previous suit, the assertionwas in respect of whole property but possession was sought from asmaller area. The judgment is clearly not applicable in the present caseas the title over the land in question before the Tribunal is distinct fromthe land which was the subject matter in the first suit. The first suit wasonly in respect of the land purchased by the Plaintiff and not the entireland, though his claim was based on sale by the father of the applicants.41. Now, the second question as to whether the appellants haveproved their title over the land in question is examined. The appellantsclaim title over the land in question. Since the land is transferred fromthe State, document of title is not required to be registered in terms ofSection 17 of the Registration Act, 1908 and/or in terms of GovernmentGrants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas.In the appendix to the letter dated 10.10.1956, the details of the landcomprising in the area measuring 378 acres 16 guntas is mentioned,which includes 2 acres 20 guntas of Miniature Rifle Range. Such land isreflected as in Mallapally Area. The total area of Mallapally area andAsafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines isnon-ISF Lines measuring 450 acres and 12 guntas which is distinct fromAsafnagar Lines falling in ISF area measuring 378 acres and 16 guntas.Thus, Mallapally area and Mallapalli Lines are two different parcels ofthe land. The land in question herein is part of Asafnagar Lines handedover to the appellants as ISF Lines. The letter dated 19.3.1958 completesthe transfer when the possession of land measuring 1500 acres and 24guntas was handed over to the Union.

42. The appellants claim to be in possession over the land measuring1500 acres and 24 guntas from the year 1958. Although, the appellantshave lost claim in respect of land measuring 4971.5 sq. yards which isfalling as part of 2 acres and 20 guntas of land, but that would not lead to

Alosing of the title of the appellants over the entire land measuring 2 acresand 20 guntas.

43. Therefore, by virtue of the provisions of Government GrantsAct, 1895 read with Section 17(2)(vii) of the Registration Act, 1908,transfer of land to the appellant is complete. The appellant is the ownerBof the aforesaid land. The applicants have not produced any documentregarding the patta in favour of Shaik Ahmed. They have not proved thetitle of their vendor so as to claim rightful title over the land in question.Further, no patta could be granted to the applicants as the land wastransferred by the State in their favour on 19.3.1958 and possession wasclaimed on the strength of sale deeds executed on 12.12.1959.C44. Apart from the fact that the transfer of title in favour of theUnion is complete when the possession was delivered, but eventhereafter, the military land register and general land register producedby the appellants show the possession of the appellants over such land.The military land register and general land register are public documentsDwithin the meaning of Section 74 of the Indian Evidence Act, 1872(Evidence Act) containing the records of the acts of the sovereignauthority i.e., the Union as well as official body. Still further, Section 114of the Evidence Act grants presumption of correctness being an officialact having been regularly performed. Therefore, in the absence of anyevidence to show that such records were not maintained properly, theEofficial record containing entries of ownership and possession wouldcarry the presumption of correctness. In view of the transfer of land on10.10.1956 followed by delivery of possession on 19.3.1958 andcontinuous assertion of possession thereof, it leads to the unequivocalfinding that appellants are owners and in possession of the suit land.F45. The third question is to examine whether the appellants areland grabbers and the Tribunal has jurisdiction to entertain petitionunder the Act. The objection of the appellants that they are not landgrabbers and that the State Legislature will have no jurisdiction over theproperty of the Union need not to be examined in view of the finding thatthe appellants are in fact owners of the land in question.G

Thus, Civil Appeal No. 2049 of 2013 is allowed and the applicationfiled by the applicants before the Tribunal is hereby dismissed. In viewthereof, Civil Appeal No. 13 of 2012 is rendered infructuous andaccordingly dismissed.

Ankit Gyan