A. Gopal Reddy, J.:— These two writ petitions under Art.226 of the Constitution of India are filed for issuance of a Writ of Mandamus declaring that LGC No. 44/2000 on the file of Special Court constituted under A.P Land Grabbing (Prohibition) Act, 1982 at Hyderabad (for short “the Special Court”) is not maintainable and to set aside the common order dt. 30-4-2010 passed in IA Nos. 585/2007 and 216/2010 in the above LGC and to allow them and consequently reject the LGC No. 44/2000 as false, frivolous and not maintainable.
2. The brief facts, which give rise to filing of these writ petitions, are as under:
K. Balaram, the second respondent herein, and 25 others filed the above LGC No. 44/2000 before the Special Court in respect of Ac.8-18 guntas of land in S. No. 129/52, R.S No. 327, claiming that K. Bala Ram, who is the manager of Hindu Joint Family consisting of himself and other members numbering 35, purchased the application schedule property under a registered sale deed dt. 25-3-1967. The applicants 2 to 7 purchased the application schedule land under a stamped agreement of sale dt. 8-8-1994 on behalf of themselves and members of their family by entering into an agreement with the first applicant and his family members. The original pattedar of application schedule property was late Abdul Rub, who had purchased the land from Surfakas Mubarak after paying the market value and in whose favour patta certificate was issued in 1340 fasli. The land originally was Kancha land, which is also used for agriculture. Abdul Rub sold the same to the first applicant under a sale deed dt.25-3-1967. Though the first applicant and his family members received the considerable sale consideration under an agreement of sale from applicants 2 to 7, the balance of about Rs. 1 crore as shown in the agreement still payable, for which applicants 2 to 7 always ready and willing to pay the same at the time of registration of the sale deed, but they could not complete the sale and register the sale deed in favour of applicants 2 to 7. In the meanwhile, the applicants came to know that the respondents have illegally grabbed the applicant schedule land six months back and erected two asbestos sheds. When the applicants attempted to get them vacated through mediators, their efforts were futile. Hence, the respondents should be declared as land grabbers and evicted them from the applicant schedule property.
3. Pending LGC, N. Balaram, first respondent herein, died and his LRs were brought on record as applicants 27 to 37 in LGC as per orders dt.20-11-2009 passed in IA No. 1174/2009. They are respondents 3 to 13 in the present writ petitions. Pending above LGC, names of the applicants 2 to 26 were deleted as per orders dt. 9-12-2003 passed in IA No. 1211/2003
4. Opposing the land grabbing case, the petitioners filed their respective counters, which were not enclosed as material papers to know the stand taken by them. The petitioner in WP No. 11869/2010 filed an additional counter dt.19-1-2010 in LGC No. 44/2000 before the Special Court. After filing the additional counter, the petitioner in WP No. 11869/2010 (R-2 in LGC) filed IA No. 216/2010 under Section 8-2(A) of the A.P Land Grabbing (Prohibition) Act, 1982 (for short “the Act”), whereas the petitioner in WP No. 11951/2010 (R-1 in LGC) filed IA No. 585/2007 under Section 8-2(A) of the Act for rejection of the LGC as false, frivolous and not maintainable. The petitioner-society in WP No. 11951/2010 who is the vendor of the petitioner in WP No. 11869/2010 filed counter questioning the maintainability and disputing the identity of the application schedule property under sale deed dt.25-3-1967. The petitioner in WP No. 11869/2010 filed a memo adopting the counter. In IA No. 585/2007, it was stated by the Society (R-1) that the application schedule land is in S. No. 129/68 paiki belonging to Mohd. Moulana, predecessor in title of the petitioner-society. The identity of the property was resolved by the High Court in CCCA No. 14/1972, to which legal heir of Abdul Rub was a party. In the said case, application schedule land was identified as S. No. 129/68 paiki. The application schedule land was again the subject matter of LGC No. 29/92 and 15/96, to which, the heirs of Abdul Rub were parties. In the said case also, the dispute was mainly in regard to the identity of the land and the title of the rival parties. The Special Court by common judgment dt. 28-4-2006 dismissed the above LGCs upholding the claim of the petitioner-society with a categorical finding that the application schedule land is held to be in S. No. 129/68 paiki and not in S. No. 129/52. Further, the Special Court upheld the title and possession of the Society. A Division Bench of this Court by its common judgment dt. 1-5-2007 dismissed the writ petitions, namely, WP No. 9931/2006 and WP No. 21130/2006, filed challenging the common judgment of the Special Court dt. 28-4-2006 passed in LGC Nos. 29/92 and 15/1986 respectively. In view of the same, the present land grabbing case is not maintainable.
5. When the said IA was under enquiry, the petitioner in WP No. 11869/2010 filed additional counter dt.19-1-2010 and also filed IA No. 216/2010 for rejection of the LGC elaborating the affidavit as previously stated by the Society stating that after passing decree in CCCA No. 14/72 the society herein entered into an agreement of sale dt.12-9-1985 with V.R.K Sastry, in whose favour CCCA was allowed holding that the suit land is situated in S. No. 129/68 paiki and granting the relief for specific performance of agreement of sale dt. 29-12-1963 in respect of land in S. No. 129/68 paiki. On purchasing the decretal property admeasuring Ac.12-09 guntas in S. No. 129/68 paiki, the Government granted permission to alienate the decretal property in favour of V.R.K Sastry, as per the specific performance decree or his nominees under the provisions of Urban Land (Ceiling & Regulation) Act, 1976 in order to give effect to the decree passed in CCCA No. 14/1972. After Municipal Corporation of Hyderabad approving the layout for a part of the said decretal land ie., Ac.7-00 out of Ac.12-09 guntas of land in S. No. 129/68 paiki, the Society developed the land covered by the said approved layout into house plots. The Society got the decree in CCCA No. 14/1972 assigned jointly in its favour and also in favour of K. Sudhir Reddy, G. Ravinder Reddy and G. Vijay Kumar Reddy for a consideration in respect of the balance land ie., 21608 sq. yards in S. No. 129/68 paiki by a deed of assignment dt. 15-1-1988. All the assignees together filed EP No. 20/1991 before the court of II Additional Chief Judge, City Civil Court, Hyderabad for registration of the sale deeds and for delivery of possession of the decretal property, as assignee decree holders. The said assignment deed was duly recognized by the executing court, which was confirmed by the High Court in revision. Thereafter, the court executed 41 registered sale deeds in favour of the assignee decree holders and their nominees transferring the balance decretal property in plots as per the plan filed in the said EP. The Supreme Court of India upheld the execution of 41 registered sale deed in SLP No. 11381/1994. At the time of delivery, Zafu Javid, claiming as a heir representing the branch of both late Abdul Rub and Abdul Basith, filed the claim petition in EA No. 14/1995 in EP No. 20/1995 resisting delivery of possession of the decretal property disputing the identity of the decretal property claiming the land as S. No. 129/51 and 129/52. The said claim petition was dismissed holding that the decretal property is situated in S. No. 129/68 paiki and not in S. No. 129/51 and 129/52. On dismissal of EA No. 14/1995, Zafu Javid filed AAO No. 2647/1998 before this court and the same was dismissed by this court by judgment dt. 27-10-1998, which has become final. The said judgment operates as res judicata. The State of Andhra Pradesh filed separate LGC No. 15/1996 before the Special Court claiming title to the land as in S. No. 129/51 admeasuring Ac.6-34 guntas and S. No. 129/52 admeasuring Ac.8-18 guntas. N. Balaram, applicant No. 1 in LGC filed IA No. 222/2006 to implead him in LGC No. 15/1996, later he withdrew the same for the reasons best known to him. In view of the same, since the order passed in LGC Nos. 15 of 1996 and 29/1992 has become final, the present land grabbing case cannot be entertained.
6. N. Balaram filed a counter in IA No. 585/2007 and also filed a memo stating that the counter filed in IA No. 585/2007 and the rejoinder filed in reply to the averments made in IA No. 216/2010 may be treated as counter filed in IA No. 216/2010
7. The sum and substance of the counter filed by N. Balaram, applicant No. 1 in LGC is that, he (N. Balaram) is not a party in LGC No. 29/1992 and LGC No. 15/1996 nor a party in WP Nos. 28470/2006 and batch nor the application schedule property was the subject matter of the above proceedings. The Society created false and fabricated documents to grab the property claiming title over the land in S. No. 129/68 paiki, which is not an existing survey number, which was created in collusion with unsocial elements and land grabbers. Neither the petitioner-society nor its alleged predecessors-in-title are owners of any part of the land in S. No. 129 of Shaikpet village. Neither Abdul Rub nor his alleged legal heir has got any right or title over the application schedule property in S. No. 129/52 after alienating the same in favour of the applicant No. 1. The alleged proceedings are not binding on the applicant No. 1. The Collector confirmed the ownership and title of the applicants. The application schedule land in S. No. 129/52 was clearly demarcated in survey records, whereas in none of the survey records or any revenue records the alleged survey No. 129/68 paiki is existing. In the revisional survey conducted by the Survey Department in 1349 fasli, the same was not implemented but the survey was conducted on the application schedule property bearing S. No. 129/52 and after revisional survey, it was given Revision S. No. 327. Whereas in respect of alleged S. No. 129/68 paiki there is no revisional survey number and if survey records, initial survey, revision survey and town survey, are summoned, false claim will come to light and prayed for dismissal of the applications.
8. The learned Special Court after elaborately considering the issue dismissed IAs holding that even though common judgment and decrees in LGC Nos. 29/92 and 15/96 was delivered on 28-4-2006 ie., four years back, R-1 and R-2 in LGC, who are writ petitioners herein, have not chosen to get the common judgment and decrees marked in the above LGC, thereby giving an opportunity to the applicants to cross-examine on the same as the applicants are not parties in the said two LGCs. Since an opportunity was not given to the applicants to cross examine on any of the findings or averments made in the said common judgment and they were not parties, they should be given an opportunity to cross examine with reference to the recitals and findings in the common judgment. Even the applicants were not parties to WP Nos. 28470/1995 and batch where common judgment passed by the Special Court in LGC No. 46/1989 has been upheld, the said judgment is not binding on the applicants as the applicants' positive case is that survey was conducted in the application schedule property bearing S. No. 129/52 and after revisional survey, it was given Revision Survey No. 327, whereas in respect of the alleged S. No. 129/68 Paiki there is no revision survey number and the same is not appearing in any of the revenue or survey records or in any of the basic records and said S. No. 129/68 paiki is fabricated and crated and the allegations are to be proved by acceptable evidence. Questioning the same, the present writ petitions have been filed.
9. Sri. K. Rama Krishna Reddy, learned Senior Counsel appearing for the writ petitioners in both the writ petitions would contend that once the legal heirs of Abdul Rub are parties to L.G.C Nos. 29/92 and also LGC No. 15/96 filed by the State Government and that the first applicant in present LGC who filed IA No. 222/2006 in LGC No. 15/1996 withdrew the same for the reasons best known to him, the present proceedings initiated by them is nothing but an abuse of process. When the writ petitioners' assignment rights were accepted by the Civil Court, which was confirmed in revision by this Court and in execution of the decree, properties were also delivered by the executing court, they cannot be termed as land grabbers. In the absence of element of land grabbing, LGC cannot be entertained. In LGC No. 29/1992 filed by Sri. Sainagar Co-operative Housing Society Limited represented by its Secretary M. Suryanarayana, the Society is claiming an extent of Acs. 8-18 guntas in R.S No. 129/52, whereas the Revenue Divisional Officer, Hyderabad Division in LGC No. 15/1996 is claiming an extent of Ac. 16-09 guntas in T.S No. 1.p, 4.p, 11.p and 12.p, Block ‘H’, Ward No. 1o correlated to S. No. 403 situated in Shaikpet village, and the Special Court while disposing of both the LGCs by a common order dt. 28-4-2006 gave a categorical finding that the application schedule land is in S. No. 129/68 paiki admeasuring Ac.16-09 guntas and identity of the property is finally adjudicated in CCCA No. 14/1972 holding that the land is situated in S. No. 129/68 paiki and the said judgment operates as res judicata against the Government. Further the claim petition filed by the legal heirs of Abdul Rub and Abdul Basith was dismissed on the ground that there was a finding by this court that the land in S. No. 129/68 paiki and the land in S. Nos. 129/51 and 129/52 are separate and distinct. In view of the same, the said finding is binding on the Special Court as the petitioners were already declared not land grabbers in earlier round of litigation, therefore, they cannot be termed as land gabbers to maintain the LGC.
10. Per contra, Sri. A. Pulla Reddy, learned counsel for the respondents-applicants contended that there is no finding in OS No. 29/1965 that lands in S. Nos. 129/68 paiki, and 129/51, 129/52 is one and the same, therefore the finding in CCCA No. 14/72 is not binding on the applicants, as they are not parties to the same. LGC No. 46/1989 is in respect of land S. No. 129/51 but not in respect of S. No. 129/52. LGC No. 15/1996 is nothing to do with S. No. 129/52. S. No. 129/52 is not the subject matter of earlier round of dispute. Except cross of Mandal Revenue Officer, entire trial is completed and at that stage filing of applications questioning the maintainability is not a bona fide. Order 7 Rule 11(d) CPC applies only when the suit is bared by law but not on the ground of res judicata and res judicata cannot be pressed into service as they were not parties to the earlier proceedings. The effect of applicant No. 1 filing IA No. 222/2006 and withdrawing can be gone into while disposing of LGC, but the same cannot be a ground to reject the LGC and prayed for dismissal of the writ petitions.
11. In the light of the above submissions, the points that arise for consideration in these writ petitions are:
1. Whether the Special Court committed any illegality in taking cognizance of the case under Sec. 8(1) of the Act?
2. Whether LGC pending before the Special Court is liable to be rejected by setting aside the common order dt. 30-4-2010 passed in IA Nos. 585/2007 and 216/2010 and allowing the said petitions?
Points 1 and 2: The whole gamut of the argument advanced on behalf of the petitioners appears to be is that in the absence of element of land grabbing, the Special Court should not have been taken cognizance of the offence. Actus res in land grabbing which includes, every activity to take possession or enter into the land illegally is absent in the case on hand to take cognizance of the offence. It was contended that earlier when the petitioners entered into land in execution of the decree for specific performance where the executing court identified and delivered possession over-ruling the objections, they cannot be termed as land grabbers. To substantiate the same, finding recorded by the Special Court in LGC Nos. 29/92 and 15/1996 dt. 28-4-2006 has been pressed into service. No doubt, LGC No. 29/1992 was filed by Sri. Sainagar Co-operative Housing Society Limited, represented by its Secretary M. Suryanarayana claiming an extent of Ac.8-18 guntas in R.S No. 129/52, correlated to part of T.S No. 11, Block ‘H’, ward No. 10 of Shaikpet village against Mehdi Ali (R-3), Noorjahan Begum (R-4), M/s. Kaushik Co-operative Housing Society Limited represented by its President D. Srinath Reddy (R-8) and others. In LGC No. 15/1996 filed by the Revenue Divisional Officer, Hyderabad Division, the Government claimed an extent of Ac.16-09 guntas in T.S Nos. 1.p, 4.p, 11.p, and 12.p, Block ‘H’, Ward No. 10, correlated to S. No. 403 situated in Shaikpet village. In the said case, it was alleged that the land admeasuring Ac.11-16 guntas in S. No. 126/68 is recorded in the name of Mouli Ahmed Mirza even there is no record of actual assignment of the land by the Sarfekhas. The said survey number is shown with specific boundaries in the initial survey of 1326 fasli and hence it is claimed that there is no dispute about the identify of the property and even after the revision survey that was taken place in the year 1349 falsi and after the town survey conducted during the year 1964-1971 under A.P Survey and Boundaries Act, 1923, the boundaries of S. No. 129/68 are unaltered and new revision survey number was given to that survey number as S. No. 282 and the same has become final as nobody challenged the same. The Government is not a party to OS No. 29/65 on the file of Additional Chief Judge, City Civil Court, Hyderabad, and hence, the Government is not bound by the decision in OS No. 29/65 and it is also not bound by the decision in LGC No. 46/1989. The Special Court at para 150 of its judgment referred to the finding recorded in OS No. 29/1965 and held that once the claim petition filed by the legal heirs of Abdul Rub and Abdul Basish was dismissed on the ground that there was a finding by this court that the land in S. No. 129/68 paiki and the land in S. Nos. 129/51 and 129/52 are separate and distinct since the suit schedule land was held to be covered by S. No. 129/68 paiki, the claim petition filed by the 6 respondent (Jafer Javeed) in LGC No. 29/1992 was also dismissed on the same ground. While rejecting the contention, it was held that the subject matter is one and the same and the disputed land is situated in S. No. 129/68 paiki even though it is claimed that it is situated in S. Nos. 129/51 and 129/52 and therefore, the contention raised on behalf of the respondents 4 to 6 is not sustainable and the identity of the property once finally adjudicated in CCCA No. 14/1972 holding that the land is situated in S. No. 129/68 paiki, the judgment and decree passed in CCCA No. 14/1972 operates as res judicata, and accordingly dismissed both the LGC Nos. 29/1992 and 15/1996 holding that with regard to the claim of the petitioner-society ie., Kaushik Co-operative Housing Society, various judicial pronouncements as many as at Additional Chief Judge, High Court of A.P, Supreme Court of India and in the E.P proceedings and their respective judgments in OS No. 29/1965, in CCCA No. 14/1972 in LGC No. 46/1989 and EP proceedings in EP No. 20/1991 repeatedly held that the land in question is situated in S. No. 129/68 paiki and therefore, the applicants in LGC Nos. 29/92 and 15/1996 failed to establish their respective claims and they are not entitled to the relief and respondents 4 to 6, namely, Mehdi Ali, Noorjahan Begum and Jafer Javed failed to establish rival title set up by them and they are not entitled to any relief. Whereas the Society (petitioner-society in WP No. 11951/2010) proved their title, ownership and possession over the disputed property and they are declared as titleholders of the disputed property and ordered accordingly while dismissing the LGCs, which was confirmed by this court in WP No. 9931/2006 and WP No. 21130/2006 and batch dt. 1-5-2007.
12. The Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh1 held that “…..If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit”.
13. The Full Bench of this court in MOHD. SIDDIQ ALI KHAN2, wherein Justice B. Sudershan Reddy (as he then was) speaking for the Full Bench, on point No. 2, namely, Does the statute enjoin the Special court and the Special Tribunal to take cognizance of every case and try all cases brought before it except the one which it rejects as frivolous and vexatious?, after extensively referring to the provisions of the Land Grabbing Act, and after referring to the rejection of the contention advanced in CHENNA BASVANNA v. SPECIAL COURT3 that the Special Court ought not to have taken the cognizance of the application filed under Sec. 8(1) of the Land Grabbing Act having regard to the involvement of the extent of the land and its value holding that the discretion to be exercised under sub-section (1-A) is left to the good faith of the Special Court and it would not be possible for this Court to define standards either to take cognizance or not to take cognizance, held that the Chenna Basvanna's case (3 supra) is not an authority for the proposition that the Special court is bound to take cognizance of every case whenever an allegation of land grabbing is made, even if, the averments and the allegations made in the application do not attract the provisions of the Act. The Full Bench further observed that all the allegations made in the application, even if, to be taken true, do not disclose and satisfy the basic ingredients of any offence, so far as criminal cases are concerned and the cause of action in civil cases, the Court is bound to reject the case. The Full Bench after referring to the observations made by the Supreme Court in MR. DHANLAKSHMI v. R. PRASANNA KUMAR4 that it is not necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not, the complaint has to be read as a whole and after quoting the observation made by the Supreme Court in VIJAY PRATAP SINGH (1 supra) as extracted above, held as under:
“The Special Court is required to carefully scrutinize the allegations made in the application, in order to satisfy itself that the allegations made in the application reveal and attract the ingredients of land grabbing. Mere statement or assertion that the respondents have grabbed the land is not enough.”
14. While holding so, it was further held that the special Court is entitled to exercise the power under Order VII, Rule 11 of the Code of Civil Procedure, and reject the application, if the allegations made therein do not disclose cause of action and the case is frivolous and vexatious one.
15. Section 8(6) of the Act is pressed into service by the learned Senior Counsel appearing for the petitioners by contending that the earlier finding recorded by the Special Court not only binds the parties but also on all persons having interest in such land. Section 8(6) of the Act reads as under:
“Every finding of the Special Court with regard to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons who committed such land grabbing, and every judgment of the Special Court with regard to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land.
Provided that the Special Court shall, by notification specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the Special Court from any person including the custodian of evacuee property within the period specified therein will be considered by it;
Provided further that where the custodian of evacuee property objects to the special Court taking cognizance of the case, the Special Court shall not proceed further with the case in regard to such property;
Provided also that the Special Court shall cause a notice of taking cognizance of the case under the Act, served on any person known or believed to be interested in the land, after a summary enquiry to satisfy itself about the persons likely to be interested in the land.”
16. The Supreme Court in Abdul Gafur v. State of Uttarakhand5 after referring to Section 9 of the Code of Civil Procedure and various judgments rendered by it, was of the view that when the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the court would not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. It was further held that the Court must be kept in mind that one of the fundamental norms of judicial process is that arguable questions either legal or factual, should not be summarily dismissed without recording a reasoned order.
17. The Supreme Court in KAMALA v. K.T ESHWARA SA6 held as under:
“Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, ……….. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, rule 2 is another. (para 15)
“For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained. (para 16)
18. In view of the law laid down, it is essential for the applicants in LGC No. 44/2000 to establish actus res in land grabbing and there is an element of land grabbing on the part of the respondents to attract the jurisdiction of the Special Court. Whether earlier finding recorded that the respondents-writ petitioners validly entered into possession in execution of the decree and they cannot be termed as land grabbers is a matter which can be decided on the basis of the evidence adduced by the parties before the Special Court. It is only possible defence, which the writ petitioners can take in resisting the claim of the applicants before the Special Court as held by the Full Bench of this Court in MOHD. SIDDIQ ALI KHAN (2 supra), and the Special Court cannot go into the merits of the case, which would be available to the writ petitioners to reject the LGC on the ground that it is barred by res judicata or institution of the proceedings are frivolous and vexatious. It cannot be presumed that the Special Court will ignore the earlier finding recorded by the civil court as confirmed by this court in CCCA including execution of the decree and rejection of the claims in execution. The Special Court will have jurisdiction to decide the question whether the petitioners are lawfully entered into possession when agitated before it. It is the bounden duty of the Special Court to consider whether it can annul the findings recorded in the earlier civil suit and LGC Nos. 29/92 and 15/96 or direct the parties to seek declaration before the appropriate forum. Admittedly, the proceedings are pending since from 2000 and on the date when the Society filed its counter, it is aware or within its knowledge about the finding recorded by the Civil Court in OS No. 29/65 as confirmed by this Court and identification of property by the executing court etc., but the Society has not filed any application for rejection of the LGC initially but only after Special Court dismisses LGC Nos. 29/92 and 15/1996, the Society filed IA No. 585/2007 and followed by IA No. 216/2010 by the petitioner in WP No. 11869/2010.
19. In RAM PRAKASH GUPTA v. RAJIV KUMAR GUPTA7 the fact are, the defendant, after filing of the written statement; after framing of the issues including on limitation; and after cross-examination of the plaintiff and before conclusion of the trial, filed the application under Order 7 Rule 11 PC for rejection of the plaint alleging that the suit filed by the plaintiff is bared by limitation. The trial court allowed the petition. On appeal, the High Court confirmed the order of the trial court. On further appeal, the Supreme Court allowed the appeal setting aside the order passed by the trial court and also the judgment passed by the High Court and directed the trial court to restore the suit to its original file and dispose of the same on merits holding that on going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial court.
20. In the present case also, entire trial has already been completed except cross of Mandal Revenue Officer, as stated by the learned counsel for the applicants in LGC. In view of the same, the Special Court has not committed any error in dismissing IAs filed by the petitioners herein before the Special Court warranting interference by this court.
21. Whether filing of LGC is barred by res judicata or constructive res judicata is a mixed question of law and fact, which can be decided only on appreciation of evidence let in to the said effect.
22. Though, we see some force in the contention of the Senior Counsel, but any observation made by us with regard to said contention will influence the Special Court, we are not inclined to decide the controversy, namely, whether finding recorded in the suit as confirmed by this court, Supreme Court with regard to the identity of the property, which falls in S. No. 128/68 paiki and same was delivered to the society and its members in execution of the decree will operate as constructive res judicata or not. Further, the conduct of the applicant No. 1 in LGC No. 44/2000 in filing impleadment petition in LGC No. 15/1996 and withdrawing the same, having knowledge about the proceedings, disentitles him to institute LGC after expiry of statutory period is a matter which can be decided by the Special Court on adducing evidence.
23. For the foregoing reasons, it is not a fit case to declare that the proceedings initiated by the respondents/applicants are vexatious and frivolous and the Special Court will not have any jurisdiction to entertain such claim and set aside the common order passed by the Special Court and consequently to reject the LGC.
24. The writ petitions fail and are accordingly dismissed. No costs.