Andhra Pradesh High Court – Amravati
Gorla Vijaya Kireeta Rani, vs The State Of Andhra Pradesh, Rep By Its … on 22 April, 2025
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
****
WRIT PETITION NO: 41748/2017
GORLA VIJAYA KIREETA RANI,, W/O. GORLA ANTHONY
XAVIER, AGED 50 YEARS, BUSINESS, R/O. PLOT.NO.10,
TADBUND, PANCHAVATI COLONY, SECUNDERABAD AND
OTHERS
... PETITIONERS
Versus
THE STATE OF ANDHRA PRADESH REP BY ITS
PRINCIPAL SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, VELAGAPUDI, AMARAVATHI, GUNTUR
AND OTHERS
... RESPONDENTS
DATE OF ORDER PRONOUNCED : 22.04.2025
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
_____________________
SUBBA REDDY SATTI, J
Page 2 of 27 SRS,J
W.P.No.41748 of 2017
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 41748/2017
% 22.04.2025
Writ Petition No. 41748 OF 2017
GORLA VIJAYA KIREETA RANI,, W/O. GORLA ANTHONY
XAVIER, AGED 50 YEARS, BUSINESS, R/O. PLOT.NO.10,
TADBUND, PANCHAVATI COLONY, SECUNDERABAD AND
OTHERS
... PETITIONERS
Versus
THE STATE OF ANDHRA PRADESH REP BY ITS
PRINCIPAL SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, VELAGAPUDI, AMARAVATHI, GUNTUR
AND OTHERS
... RESPONDENTS
! Counsel for Petitioner s : Sri K.V. Bhanu Prasad
^ Counsel for Respondents : Sri Khaja Basha,
Standing counsel
< Gist:
> Head Note:
? Cases referred:
1) 2024 Supreme (AP) 1069
2) AIR 1968 SC 1196
3) (2019) 13 SCC 42
4) (2003) 10 SCC 578
5) (2007) 8 SCC15
6) AIR 1953 SC 65
7) 2004 SCC OnLine Bom 204
8) (2014) 4 SCC 434
9) (2022) 7 SCC 508
10) 2016 (2) ALD 236
This Court made the following:
Page 3 of 27 SRS,J
W.P.No.41748 of 2017
APHC010961372017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY SECOND DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 41748/2017
Between:
Gorla Vijaya Kireeta Rani, and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh Rep By Its Principal ...RESPONDENT(S)
Secretary and Others
Counsel for the Petitioner(S):
1. K V BHANU PRASAD
2. ALAPATI ROHINI SRINIVAS MURTHY
Counsel for the Respondent(S):
1. GP FOR ASSIGNMENT (AP)
2. GP FOR REVENUE (AP)
3. ANCHA PANDURANGA RAO
4. SHAIK KHAJA BASHA
5. S ARIFULLAH (SC FOR AP WAQF BOARD)
The Court made the following:
::ORDER:
:
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W.P.No.41748 of 2017
The petitioners 24 in number filed the above writ petition, impugning the
communication issued by respondent No.2 vide F.No.01/Prot/AP/Genl/2016
dated 10.03.2016 to respondent No.3 to include the plots in survey Nos.508,
Vasavi Nagar, Guntur, purchased by the petitioners, as Wakf property, despite
the judgment and decree in O.S.No.129 of 1967 on the file of Sub-ordinate
Judge, Guntur and A.S.No. 164 of 1973 and S.A.No.224 of 1978 is illegal and
arbitrary.
2. The averments in the affidavit, in brief, are that the petitioners are
registered owners of respective house plots in survey No.508 of Vasavi
Nagar. The land of an extent of Ac. 2-00 cts, in survey No.508 belonged to
Ch. Suryanarayana, purchased the same under a registered document
bearing No.2852/1946 dated 16.10.1946. After Sri Suryanarayana’s lifetime,
his wife Manikyamma enjoyed the property and later gifted it to her daughter
Ch. Padmavathi vide registered gift deed dated 04.06.1964. Smt Padmavathi,
converted Ac.2-00 cts into house plots and sold to different individuals, after
obtaining permission from Urban Land Ceiling (ULC) authorities. The
petitioners herein own the respective extents of land, in the survey No.508
mentioned supra, as below:
S.No. petitioners Particulars of registered Extent of land
document and date (in sq. yards)1 Petitioners 1 and 2 15701/2006 dated 01.11.2006 320
2 Petitioner No.3 10400/2003 dated 08.11.2003 139
3 Petitioner No.4 5710/2003 dated 13.06.2003 139
4 Petitioner No.5 Document dated 14.07.1998 320
5 Petitioner No.6 1095/2013 dated 31.12.2012 320
6 Petitioner No.7 3105 and 3106/2013 dated 139 and 139
14.03.20137 Petitioners 8 and 9 980/2014 dated 19.12.2013 267
8 Petitioner No.10 4964/2013 dated 12.04.2013 194.5
Page 5 of 27 SRS,J
W.P.No.41748 of 20179 Petitioner No.11 5704/2003 dated 13.06.2003 139
10 Petitioner No.12 5709/2003 dated 13.06.2003 139
11 Petitioner No.13 10407/2003 dated 05.11.2003 150
12 Petitioner No.14 10409/2003 dated 05.11.2003 418
13 Petitioner No.15 10404/2003 dated 05.11.2003 268
14 Petitioner No.16 4160/2014 dated 14.03.2014 160
15 Petitioner No.17 4159/2014 dated 14.03.2014 160
16 Petitioner No.18 1174/2013 dated 21.01.2013 418
17 Petitioner No.19 6368/2003 dated 09.07.2003 431
18 Petitioner No.20 7957/2009 dated 16.12.2009 139
19 Petitioner No.21 7958/2009 dated 16.12.2009 139
20 Petitioner No.22 6866/2003 dated 24.07.2003 169.5
21 Petitioner No.23 6867/2003 dated 24.07.2003/ 139
22 Petitioner No.24 7873/2015 dated 23.07.2015 93.5
b) The 2nd respondent filed suit O.S.No.129 of 1967 against
Cherukuri Manikyamma and others for recovery of possession of the property
in survey Nos.508 (Ac.2-00 cts) and 509 (Ac.4-00 Cts). The said suit was
dismissed by the Sub-ordinate Judge, Guntur, on 30.11.1972. Against the said
judgment, the plaintiff filed an appeal A.S. No.164 of 1973, and the defendant
No.5, (R4 in appeal) filed cross objections on the file of the II Additional
District Judge, Guntur. The first appellate Court dismissed the appeal in
respect of item No.1 of the suit schedule property i.e. Ac.2-00 cts in S.No. 508
and allowed the appeal in respect of item No.2 i.e. land in S.No. 509.
Respondent No.3 in the appeal (defendant No.3 in the suit) filed
S.A.No.294/1978, and the same was allowed on 18.08.1980. Thereby, the suit
filed by the plaintiff for recovery of possession was dismissed in toto.
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W.P.No.41748 of 2017
c) Despite the judgment and decree in O.S.No.129 of 1967,
respondent No.2 sent a communication to respondent No.3 stating that an
extent of Ac.11-38 cents in survey No.508, Vasavi Nagar, Guntur District,
which includes the petitioners’ plots in an extent of Ac.2-00, is Wakf property.
Hence, the writ petition.
3. A counter affidavit was filed on behalf of respondent No.2. It was
contended, inter alia, that a writ petition, challenging the list of Wakf property
published in the notification under Section 5(2) of the Wakf Act, 1954, is not
maintainable. The registered document of 1946 does not provide details about
the vendor of Ch. Suryanarayana, and said Ch. Suryanarana has no title to
the property.
b) The Andhra Pradesh State Wakf Board filed O.S.No.129 of 1967
against five defendants in respect of two items. Item No.1 comprises Ac.2-00
in survey No.508, and Item No.2 comprises Ac.2-00 in survey No.509. A small
portion of the property was the subject matter of the suit. It was pleaded by the
Wakf Board that the plaint schedule property, along with the other property, is
Wakf property as per the Andhra Pradesh Gazette Part-II dated 28.06.1962,
and it was granted for the service of Nirkhi. The plaint schedule properties
were illegally and unauthorizedly alienated by defendant No.4 in favour of
defendants 1 to 3.
c) After the death of defendant No.4, his son came on record as
defendant No.5 and filed a written statement on behalf of Muthavali and
pleaded that the alienations made by his father are not valid. The judgment
and decree arising out of O.S.No.129 of 1967 would apply only insofar as
items 1 and 2 of the plaint schedule properties are concerned. The Gazette
notification published in favour of the Wakf institution was not addressed by
the Civil Courts. The mere finding given by the Civil Court will not take away
the right or title of the Andhra Pradesh State Wakf Board over the property.
The State Government issued a gazette notification on 28.06.1962, notifying
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W.P.No.41748 of 2017
the list of properties as Wakf properties, and the notification is subsisting. No
objections were raised to the notification either at the time of the survey or
before publication. Therefore, the inclusion of notified properties in the list of
prohibited properties under Section 22(A)(1)(C) of the Registration Act, 1908,
is valid. The petitioners, without approaching the Tribunal, filed the above writ
petition. Eventually, prayed to dismiss the writ petition.
4. A reply affidavit was filed on behalf of the petitioners reiterating the
averments made in the writ affidavit. Respondent No.2 included Ac.2-00 in
Ac.11-38 cents survey No.508, despite the decree in O.S.No.129 of 1962.
5. The petitioners filed an interlocutory application to direct the defendants
5 and 6 to entertain the application for registration and construction. By order
dated 12.12.2017, an interim order was granted.
6. The writ petition was taken up for hearing on 27.03.2025 and thereafter
on 03.04.2025. The arguments commenced on 03.04.2025 and eventually
concluded on 17.04.2025.
7. Learned counsel for the petitioners would contend that the suit filed by
the Andhra Pradesh State Wakf Board for recovery of possession of the
property was dismissed in respect of Ac.2-00 cents each in survey Nos.508
and 509 in Vasavi Nagar, Guntur District. Against the said judgment and
decree, the plaintiff filed an appeal, and the first appellate Court partly allowed
the appeal in respect of land in survey No.509. In the second appeal filed by
defendant No.4 in the suit regarding the land in S.No. 509, the second appeal
was allowed, and thereby the suit was dismissed in toto. He would also submit
that even after suffering a decree in the suit for recovery of Ac.2-00 each in
survey Nos.508 and 509, from a competent civil court, communication of
respondent No.2 to respondent No.3, showing Ac.11-38 cents S.No. 508,
including the petitioners’ land of an extent of Ac.2-00 cts is not only illegal but
also arbitrary. He would also submit that the decree passed by the civil court
binds respondent No.2.
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W.P.No.41748 of 2017
8. Per contra, learned standing counsel would contend that Ac.11-38 cents
in survey No.508, and Ac.8-22 cents in survey No.509 were gazetted as Wakf
land by notification dated 28.06.1962. The petitioner ought to have challenged
the gazette notification. The mere finding of the civil court does not take away
the right of the Wakf Board over the property. The list was communicated by
respondents 2 and 3 in compliance with the orders in W.A.No.343 of 2015 and
batch (reported in 2016 (1) ALT 550) and a Government Memo
No.179064/IDM/A1/2015 dated 08.03.2016.
9. The points for consideration are:
1. Whether the communication of the 2nd respondent to the 3rd respondent
vis-a-vis Ac.2-00 cts in S.No. 508 of Guntur, despite the Civil Court
decree, to include the same in Sec 22-A(1)(c) of the Registration Act, is
legally sustainable.?
2. Whether the writ petition filed by the petitioners is maintainable?
10. Before delving into the matter, let the Court examine the Civil
litigation between the Wakf Board and the mother of the Vendor of the
petitioners. The Andhra Pradesh Waqf Board, represented by its
regional officer, filed suit OS No. 129 of 1967 on the file of the
subordinate judge court, Guntur, against C.H. Manikyamma and four
others for recovery of property, future profits etc., In the plaint, it was
contended, inter alia, that the suit schedule property, along with other
properties, was granted for the service of Nikhri (for calling Muslims daily
for reading Namaj) in Guntur town. The Waqf Board, Hyderabad,
declared the suit property as Waqf property as per the notification in
Andhra Pradesh Gazette, Part-II, dated 28.06.1962, and the same has
become final. The defendants 1, 2, 3 have been in illegal possession of
the plane schedule properties by the alienations made by the 4th
defendant on 16.07.1964. The 4th defendant did not obtain, sanction
Page 9 of 27 SRS,J
W.P.No.41748 of 2017
from the competent authority to alienate the suit property. The
defendants contested this suit, including the vendor of the properties.
11. The Trial Court framed eight issues. The relevant issues are extracted:
1. Whether the suit schedule property is waqf property?
2. Whether the suit is barred by limitation?
3. Whether the declaration alleged to have been made by the waqf board is
true, valid and binding on the dependents
4. Whether the suit properties were granted for the services of Nikhri as
alleged in the plaint and if so, do they constitute trust property?
5. Whether the suit alienations are valid and binding on the plaintiff?
6. Whether the defendants perfected their title by way of adverse
possession.
12. During the trial, on behalf of the plaintiff, the work inspector was
examined as PW1 and exhibits A1 to A10 were marked. On behalf of the
defendants, DW1 to DW4 were examined and exhibits B1 to B11 were
marked. The survey report relating to the suit property, the Gazette
Notification relating to properties and the Gazette Notification formingthe State
Waqf Board were marked as exhibits A2 to A4. The registered sale deeds
executed by Defendant 4 in favour of DW1 and others were markedas Exhibit
B1. Defendant No.4 purchased Ac.2-00 cts in survey No. 508 vide Ex B-5
dated 3-7-1920 and later sold to the husband of D.W1.
13. The trial court concluded that the suit schedule property is a Waqf
property; however, Ex.A3 Gazette Notification does not bind the defendants 1,
2, 3. The Trial court also concluded that the defendants perfected the title by
adverse possession. Eventually, dismissed the suit.
14. The plaintiff in the suit (Wakf Board) filed an appeal, A.S.No. 164 of
1973, on the file of Second Additional District Judge Guntur. The Lower
Appellate Court recorded a finding that Ac.2-00 cts, Item No.1 of the plaint
Page 10 of 27 SRS,J
W.P.No.41748 of 2017
schedule property (Ac. 2-00 cts in S.No. 508) purchased by the husband of
the first defendant in the suit, is not a Waqf property. Defendant No. 4
purchased the said extent under a registered sale deed, Ex. B5 dated 3-7-19-
20, and hence, the said property lost the character of Waqf. In respect of Item
No.2 (S.No. 509), the Appellate Court reversed the finding of the trial court.
Accordingly, the judgment was rendered on 31.10.1977.
15. The third defendant in the suit filed a Second Appeal, S.A. No. 224 of
1978. The second appeal was allowed by judgment and decree dated
18.08.1980. Since the second appeal was allowed, the suit filed by the Waqf
Board was dismissed in toto.
16. It is pertinent to mention here that the First Appellate Court recorded a
finding that Item No.1 of the plaint schedule property was purchased by 4th
defendant under a registered sale deed Ex.B5 dated 3-7-1920 from one of
his family members and therefore it became the personal property of the
4th defendant and hence the plaintiff’s claim in respect of that item was
rejected. (emphasis is mine)
17. Thus, a perusal of the findings recorded by the competent civil court
would discern that an extent of Ac.2-00 cts in survey number 508, initially
purchased by D4 in the suit on 3-7-1920, and thereafter, he sold the same to
the husband of the first defendant in the suit on 16-7-1946 and it is not Wakf
property.
18. In the writ affidavit, it was pleaded that the first defendant in the suit
(mother of the vendor of the petitioners) executed a registered gift deed in
favour of her daughter, who, in turn, divided the property into plots and
alienated them to different individuals by registered sale deeds.
19. The Trial Court also recorded a finding while dealing with issues 1 and 3
that the Gazette notification EX.A3 doesn’t bind the defendants 1 to 3 became
final.
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W.P.No.41748 of 2017
20. Thus, the Waqf Board, being a party to the suit, is aware of the findings
in Civil Suit, in respect of the property Ac.2-00 cts in S.No. 508 of Guntur.
Having suffered a decree, whether it is appropriate, on the part of the Waqf
Board, the 2nd respondent, to communicate to the 3rdrespondent to include
Ac.2-00 cts in survey number 508 of Guntur in the list of prohibited
properties,(S.No. 508 total Ac. 11-38 cts including Ac.2-00 cts), the answer
should be in negative.
21. In the counter-affidavit filed, on behalf of the second respondent in para
5, it was contended that “the judgment and decree arising out of O.S.No. 149
of 1967 would apply only insofar as Items No.1 and 2 of the plaint schedule
properties, and that only in respect of Ac. 2.00 cts of land in Survey No.508
and Ac.2-00 cts of land in Survey No. 509”. Having pleaded so, again it was
pleaded that the Gazette Notification published in favour of Waqf Institution
and AP State Waqf Board is intact and it is not in any way discussed by or
addressed by the Civil Court; in fact, it is contrary to the finding recorded by
the Civil Court. The findings recorded in the suit bind the parties to the suit,
hence, the findings bind the 2nd respondent. The plots purchased by the
petitioners are part of Item No. 1 of the suit schedule property in S.No. 508 of
Guntur. The inconsistent pleas in the counter speak for themselves.
22. The decree and judgement of the Civil Court, in the considered opinion
of this Court, operates as res judicata and hence the inclusion of Ac.2-00 cts
in S.No. 508 of Guntur in communication is illegal and arbitrary.
23. This Court in Y.Nagasubbamma Vs State of Andhra Pradesh1
considered the applicability of the principle of res judicata to the writ petitions
and eventually concluded that Sec 11 CPC would apply to the writ petitions. It
was held thus:
9. Finality of judgment puts an end to the judicial process. The
doctrine of res judicata is based on three Roman maxims:
1
2024 Supreme (AP) 1069
Page 12 of 27 SRS,J
W.P.No.41748 of 2017(1) “Nemo debet bis vexari pro una et eadem causa” (no man
should be vexed twice for the same cause).
(2) “Interest republicaeut sit finislitium” (it is in the interest of the
State that there should be an end to a litigation).
(3) “Re judicata pro veritateoccipitur” (judicial decision must be
accepted as correct).
10. In Virudhunagar Steel Rolling Mills Ltd. Vs. Government of
Madras,2 the Constitution Bench of the Apex Court held that res
judicata will apply in writ petitions also. As per Section 11 of Civil
Procedure Code, 1908, when the matter has been directly and
substantially in issue in a former Page 4 of 11 suit between the
same parties, or between parties under whom they or any of them
claim, litigating under the same title, the decree in former suit
would be res judicata between the plaintiff and defendant or
between the co-plaintiff and co-defendant.
24. In P. Bandopadhya Vs. Union of India,3 the Hon’ble Apex Court held
thus:
“8.11. The decision in S.V. Vasaikar v. Union of India, 2003 SCC Online
Bom 171 : (2003) 2 Mah. L.J. 691 : (2003) 4 Bom. C.R. 79 was not
challenged before the Supreme Court, and has since attained finality.
Therefore, the relief sought by the appellants before the High Court was
barred by the principle of res judicata.
Reference can be made to the decision of the Constitution Bench in Direct
Recruit Class-II Engg. Officers’ Assn. Vs. State of Maharashtra, (1990) 2
SCC 715 : 1990 SCC (L&S) 339 : AIR 1990 SC 1607 wherein Sharma, J.,
on behalf of the five-Judge Bench, held: (SCC pp. 740-741, Para 35)AIR 1968 SC 1196
2(2019) 13 SCC 42
3
Page 13 of 27 SRS,J
W.P.No.41748 of 2017“35………It is well established that the principles of res judicata are
applicable to writ petitions. The relief prayed for on behalf of the petitioner
in the present case is the same as he would have, in the event of his
success, obtained in the earlier writ petition before the High Court. The
petitioner in reply contended that since the special leave petition before
this Court was dismissed in limine without giving any reason, the order
cannot be relied upon for a plea of res judicata. The answer is that it is not
the order of this Court dismissing the special leave petition which is being
relied upon; the plea of res judicata has been pressed on the basis of the
High Court’s judgment which became final after the dismissal of the
special leave petition. In similar situation a Constitution Bench of this
Court in Daryao v. State of U.P. (1962) 1 SCR 574 : AIR 1961 SC 1457
held that where the High Court dismisses a writ petition under Article 226
of the Constitution after hearing the matter on the merits, a subsequent
petition in the Supreme Court under Article 32 on the same facts and for
the same reliefs filed by the same parties will be barred by the general
principle of res judicata. The binding character of judgments of courts of
competent jurisdiction is in essence a part of the rule of law on which the
administration of justice, so much emphasised by the Constitution, is
founded and a judgment of the High Court under Article 226 passed after
a hearing on the merits must bind the parties till set aside in appeal as
provided by the Constitution and cannot be permitted to be circumvented
by a petition under Article 32.”
Albeit the decision of the Constitution Bench was in the context of a writ
petition filed under Article 32, it would apply with greater force to bar a
Page 5 of 11 writ petition filed under Article 226, like the one filed by the
present appellants, by the operation of the principle of res judicata .
25. The Hon’ble Apex Court in K.Ethirajanv. Lakshmi4 held:
“20. The argument that the principle of res judicata cannot apply because
in the previous suit only a part of the property was involved when in the(2003) 10 SCC 578),
4
Page 14 of 27 SRS,J
W.P.No.41748 of 2017subsequent suit the whole property is the subject-matter, cannot be
accepted. The principle of res judicata under Section 11 of the Code of
Civil Procedure is attracted where issues directly and substantially
involved between the same parties in the previous and subsequent suit
are the same, maybe, in the previous suit only a part of the property was
involved when in the subsequent suit, the whole property is the subject-
matter.also considered the applicability res judicata.
26. In SarojavChinnusamy (dead) by LRs. and another5 the Hon’ble
Apex Court held as follows:
In this connection, reference can be made to a decision of the Madras
High Court in ArukkaniAmmal v. Guruswamy which was also relied on by
the first appellate court. The Madras High Court in that decision observed
as follows: (LW p. 708, para 1)“It is also difficult to appreciate the view taken by the District Munsif that
ex parte decree cannot be considered to be ‘full decree on merits’. A
decree which is passed ex parte is as good and effective as a decree
passed after contest. Before the ex parte decree is passed, the court has
to hold that the averments in the plaint and the claim in the suit have been
proved. It is, therefore, difficult to endorse the observation made by the
Principal District Munsif that such a decree cannot be considered to be a
decree passed on merits. It is undoubtedly a decree which is passed
without contest; but it is only after the merits of the claim of the plaintiff
have been proved to the satisfaction of the trial court, that an occasion to
pass an ex parte decree can arise.” (emphasis supplied)
16.We are in full agreement with this view of the Madras High Court
holding that a decree which is passed ex parte is as good and effective as
a decree passed after contest. A similar view has also been expressed by
a Division Bench of the Allahabad High Court in BramhanandRai v. Dy.
Director of Consolidation.”
(2007) 8 SCC 15.
5
Page 15 of 27 SRS,J
W.P.No.41748 of 2017
27. Thus, as seen from the above judgment, even an ex parte decree would
operate as res judicata.Even if the earlier decision is wrong, it still operates as
res judicata.
28. In Mohan Lal Goenka v. Benoy Krishna Mukherjee6 the Apex Court
categorically held that the correctness or otherwise of a decision has no
bearing on the question whether or not it operates as res judicata.
29. A Division Bench of Bombay High Court in Sanjay G. Khemuka (Dr.) v.
State of Maharashtra7, by relying upon Mohan Lal Goenka case (Supra)
observed as follows:
39. At this stage, we want to express that it is not-necessary that the
decision rendered by the Competent Court should be legally sound and
sustainable in law. Even the erroneous orders or decisions in the earlier
case or proceedings operate as res judicata. The Apex Court laid down
proposition of law in this regard way back in 1953 in case of Mohanlal
Goenka v. Benoy Kishna Mukherjee, (1952) 2 SCC 648 : AIR 1953 SC 65.
In Paragraph 23 of its Judgment, the Apex Court has observed thus:–
‘There is ample authority for the proposition that even an erroneous
decision on a question of law operates as ‘res judicata’ between the
parties to it. The correctness or otherwise of a judicial decision has no
bearing upon the question whether or not it operates as ‘res judicta’. A
decision in the previous execution case between the parties that the
matter was not within the competence of the executing Court even though
erroneous, is binding on the parties.’
30. The Hon’ble Apex Court in R. Unnikrishnan v. V.K. Mahanudevan8,
observed as follows:
23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [(1970) 1
SCC 613] this Court held that for the application of the rule of res judicata, the( AIR 1953 SC 65),
6
7
2004 SCC OnLine Bom 204
8
(2014) 4 SCC 434
Page 16 of 27 SRS,J
W.P.No.41748 of 2017court is not concerned with the correctness or otherwise of the earlier
judgment.
31. Thus, given the categorical judgments in the Civil litigation O.S.No. 129
of 1967; A.S.No. 164 of 1973 and S.A.No. 224 of 1978, the communication
made by respondent No.2 concerning Ac.2-00 cts out of Ac.11-38 cts in S.No.
508 of Guntur, is hit by the principle of res judicata, and hence the
communication in respect of the above extent is liable to be set aside.
32. Learned standing counsel during the arguments would contend that the
petitioners can also approach the Wakf Tribunal and get the dispute resolved
regarding the Title. The contention of the learned standing counselhas no
merit consideration, because of Sections 6(1) and Sec 7(5) of the Wakf Act,
1995. Section 6 of the Act envisages disputes regarding auqaf. Sec 6(1)
relevant is extracted herewith:
6. Disputes regarding auqaf.–(1) If any question arises whether a
particular property specified as waqf property in the list of auqaf is waqf
property or not or whether a waqf specified in such list is a Shia waqf or
Sunni waqf, the Board or the mutawalli of the waqf or any person
aggrieved may institute a suit in a Tribunal for the decision of the question
and the decision of the Tribunal in respect of such matter shall be final:
33. Section 7 of the Act deals with the power of the Tribunal to determine
the disputes regarding auqaf. Section 7(1) and (5) of the Act, relevant, is
extracted:
1) If, after the commencement of this Act, any question or dispute arises,
whether a particular property specified as waqf property in a list of auqaf is
waqf property or not, or whether a waqf specified in such list is a Shia
waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any
person aggrieved by the publication of the list of auqaf under section
therein, may apply to the Tribunal having jurisdiction in relation to such
property, for the decision of the question and the decision of the Tribunal
thereon shall be final:
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W.P.No.41748 of 2017
……
…..
(5) The Tribunal shall not have jurisdiction to determine any matter which
is the subject-matter of any suit or proceeding instituted or commenced in
a civil court under sub-section (1) of section 6, before the commencement
of the Act or which is the subject-matter of any appeal from the decree
passed before such commencement in any such suit or proceeding or of
any application for revision or review arising out of such suit, proceeding
or appeal, as the case may be.”
34. Thus, given the categorical exception, in Sec 7(5) of the Act, since the
Civil Court already adjudicated the dispute, and it became final, relegating the
petitioners to the Tribunal is a futile exercise. In fact, the tribunal lacks
jurisdiction.
35. The other contention of the learned standing counsel is that the writ
petition is not maintainable is no merit for consideration, since the right of the
petitioners under Art 300-A of the Constitution of India is infringed. Though the
property right is not a fundamental right in Part III of the Constitution of India,
the same is still a Constitutional Right.
36. In Sukh Dutt Ratra v. State of H.P.,9 the Hon’ble Apex Courttraced the
recognition of the right to property observed as follows:
“13. While the right to property is no longer a fundamental right
[“Constitution (Forty-fourth Amendment) Act, 1978“], it is pertinent to note
that at the time of dispossession of the subject land, this right was still
included in Part III of the Constitution. The right against deprivation of
property unless in accordance with procedure established by law,
continues to be a constitutional right under Article 300-A.(2022) 7 SCC 508,
9
Page 18 of 27 SRS,J
W.P.No.41748 of 2017
14. It is the cardinal principle of the rule of law, that nobody can be
deprived of liberty or property without due process, or authorisation of law.
The recognition of this dates back to the 1700s to the decision of the
King’s Bench in Entick v. Carrington [Entick v. Carrington, 1765 EWHC
(KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State of H.P.
[Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415]
Further, in several judgments, this Court has repeatedly held that rather
than enjoying a wider bandwidth of lenience, the State often has a higher
responsibility in demonstrating that it has acted within the confines of
legality, and therefore, not tarnished the basic principle of the rule of law.
15. When it comes to the subject of private property, this Court has upheld
the high threshold of legality that must be met, to dispossess an individual
of their property, and even more so when done by the State.”
37. In the case at hand, all the petitioners purchased the plots under
different registered sale deeds. Communicating to include the land in Sec 22-
A(1)(c ) of the Registration Act, in the considered opinion of this Court, it
would create unwarranted litigation and result in infringement of the right of
the petitioners under Art 300-A of the Constitution of India. Hence, the writ
petition is maintainable.
38. It is very unfortunate that, after the full bench judgment in Vinjamury
Rajagopala Chary Vs State of A.P.10, without understanding the purport of the
judgment, despite the Civil Court decree, the 2nd respondent communicated to
the 3rd respondent to include the aforementioned land in the list of prohibited
properties.
39. In fact, in Vinjamuri Rajagopala Chary‘s case, the Full Bench of the
composite High Court of Andhra Pradesh framed the following points for
consideration:
2016 (2) ALD 236
10
Page 19 of 27 SRS,J
W.P.No.41748 of 2017“1. What are the prerequisites that are to be satisfied for applying any one or
more of clauses (a) to (e) of Section 22-A(1) of the Registration Act to any
document dealing with alienation or transfer by way of sale, agreement of
sale, gift, exchange or lease, etc. in respect of immovable property presented
for registration?
2. Under what circumstances, the act of the Registering Authority concerned
(District Registrar or Sub-Registrar) in refusing from registration of the
aforementioned document/s by applying any one or more of the prohibitory
clauses (a) to (e) under Section 22-A(1) of the Registration Act can be said to
be justified?
In paragraph-5 of the judgment, it was observed as follows:
“5. Before we look at and consider Section 22-A of Registration Act, it
would be necessary and relevant to make a brief reference to the six
judgments of different learned Judges dealing with Section 22-A, to which
our attention was specifically invited to, so as to understand the exact
nature of controversy and factual matrix against which the questions were
framed and addressed therein, to enable us to frame and address the
questions, covering the field of operation of this provision. The six
judgments are:
T.Yedukondalu Vs. State of A.P. (2011 SCC OnLine P 179 : AIR 2011 AP
132).
Dr.DinakarMogili Vs. State of A.P. (2011 SCC OnLine AP 488 : 2011 (6)
ALD 502)
Guntur City House Construction Co-operative Society Ltd., Guntur Vs.
Tahsildar ((2012 SCC OnLine AP 20 : 2012 (2) ALD 332).
Raavi Satish Vs. State of A.P. (2012 SCC OnLIne AP 856 : 2013 (1) ALT
774).
Vinjamuri Rajagopala Chary Vs. State of A.P. (2015 SCC OnLineHyd 407
: 2016 (2) ALD 236)
Page 20 of 27 SRS,J
W.P.No.41748 of 2017
C.Radhakrishnama Naidu Vs. State of A.P. (2015 SCC OnLineHyd 198 :
2015 (4) ALT 1)
15. After considering each of the clauses of Section 22-A (1) (a) to (e) of
the Act and the Government instructions regarding communication and
notification, the reference is ordered as follows:
“36. We, thus, summarize our conclusions and issue directions as follows:
(i) The authorities mentioned in the guidelines, which are obliged to
prepare lists of properties covered by clauses (a) to (d), to be sent
to the registering authorities under the provisions of Registration
Act, shall clearly indicate the relevant clause under which each
property is classified.
(ii) Insofar as clause (a) is concerned, the concerned District Collectors
shall also indicate the statute under which a transaction and its
registration is prohibited. Further in respect of the properties
covered under clause (b), they shall clearly indicate which of the
Governments own the property.
(iii) Insofar as paragraphs (3) and (4) in the Guidelines, covering
properties under clause (c) and (d) are concerned, the authorities
contemplated therein shall also forward to the registering
authorities, along with lists, the extracts of registers/gazette if the
property is covered by either endowment or wakf, and
declarations/orders made under the provisions of Ceiling Acts if the
property is covered under clause (d).
(iv) The authorities forwarding the lists of properties/lands to the
registering authority shall also upload the same to the website of
both the Governments, namely igrs.ap.gov.in of the State of Andhra
Pradesh and registration.telangana.gov.in of the State of
Telangana. If there is any change in the website, the State
Governments shall indicate the same to all concerned, may be by
Page 21 of 27 SRS,J
W.P.No.41748 of 2017issuing a press note or an advertisement in prominent daily news
papers.
(v) No notification, contemplated by sub-section (2) of Section 22A, is
necessary with respect to the properties falling under clauses (a) to
(d) of sub-section (1) of Section 22-A.
(vi) The properties covered under clause (e) of Section 22-A shall be
notified in the official gazette of the State Governments and shall be
forwarded, along with the list of properties, and a copy of the
relevant notification/gazette, to the concerned registering
authorities under the provisions of Registration Act and shall also
place the said notification/gazette on the aforementioned websites
of both the State Governments. The Registering authorities shall
make available a copy of the Notification/Gazette on an application
made by an aggrieved party.
(vii) The registering authorities would be justified in refusing registration
of documents in respect of the properties covered by clauses (a) to
(d) of sub-section (1) of Section 22-A provided the authorities
contemplated under the guidelines, as aforementioned, have
communicated the lists of properties prohibited under these
clauses.
(viii) The concerned authorities, which are obliged to furnish the lists of
properties covered by clauses (a) to (d) of sub-section (1) of
Section 22-A, and the concerned Registering Officers shall follow
the guidelines scrupulously.
(ix) It is open to the parties to a document, if the relevant property/land
finds place in the list of properties covered by clauses (a) to (d) of
sub-section (1) of Section 22-A, to apply for its deletion from the list
or modification thereof, to the concerned authorities as provided for
in the guidelines. The concerned authorities are obliged to consider
the request in proper perspective and pass appropriate order within
Page 22 of 27 SRS,J
W.P.No.41748 of 2017six weeks from the date of receipt of the application and make its
copy available to the concerned party.
(x) The redressal mechanism under Section 22-A(4) shall be before
the Committees to be constituted by respective State Governments
as directed in paragraph-35.1 above. The State Governments shall
constitute such committees within eight weeks from the date of
pronouncement of this judgment. (xi) Apart from the redressal
mechanism, it is also open to an aggrieved person to approach
appropriate forum including Civil Court for either seeking
appropriate declaration or deletion of his property/land from the list
of prohibited properties or for any other appropriate relief.
(xi) The directions issued by learned single Judges in six
judgments referred to above or any other judgments dealing
with the provisions of Section 22-A, if are inconsistent with the
observations made or directions issued in this judgment, it is
made clear that the observations made and directions issued in this
judgment shall prevail and would be binding on the parties including
the registering authorities under the Registration Act or
Government officials or the officials under the Endowments Act,
Wakf Act and Ceiling Acts. (emphasis is mine)
(xii) If the party concerned seeks extracts of the list/register/gazette of
properties covered by clauses (a) to (e) of Section 22-A (1),
received by the registering officer on the basis of which he refused
registration, it shall be furnished within 10 days from the date of an
application made by the aggrieved party.
(xiii) Registering officer shall not act and refuse registration of a
document in respect of any property furnished to him directly by
any authority/officer other than the officers/authori-ties mentioned in
the Guidelines.
Page 23 of 27 SRS,J
W.P.No.41748 of 2017
(xiv) Mere registration of a document shall not confer title on the
vendee/alienee, if the property is otherwise covered by clauses (a)
to (e), but did not find place in the lists furnished by the concerned
authorities to the registering officers. In such cases, the only
remedy available to the authorities under clauses (a) to (e) of sub-
section (1) of Section 22-A is to approach appropriate forums for
appropriate relief.
40. The Direction No.12 of the Full Bench judgment would signify, that the
directions issued by learned single Judges in six judgments, referred in the
judgment, or any other judgments dealing with the provisions of Section 22-A,
if it is inconsistent with the observations made or directions issued, the
observations made and the directions issued the judgment (full bench) shall
prevail and would be binding on the parties including the registering
authorities under the Registration Act or Government officials or the officials
under the Endowments Act, Wakf Act and Ceiling Acts. It is pertinent to
mention here that, after the judgment in Vinjamury Rajagopala Chari‘s case,
the authorities, be it endowment, wakf etc., communicated the list of
properties to the Commissioner, Stamps and Registration to include properties
in the list of prohibited properties under Section 22-A of the Registration Act,
thereby opening a pandora’s box.
41. In the case at hand, as discussed supra, the 2nd respondent, despite the
Civil Court decree, communicated the list of properties including the Ac.2-00
cts in S.No. 508 of Guntur, purportedly acting upon the ratio in Vinjamury
Rajagopala Chari‘s case, is not only illegal but also arbitrary.
42. The 2nd respondent, being an instrumentality of the State, created
unwanted litigation. The indifference of the Wakf Board forced the petitioners
to invoke the extraordinary jurisdiction of this Court. The State is expected to
be a model litigant, maintaining ethical standards in prosecuting the litigation
being a compulsive litigant.
Page 24 of 27 SRS,J
W.P.No.41748 of 2017
43. The Hon’ble Apex Court in Dilbag Rai Vs UOI11 and others commented
regarding the absence of a litigation policy of the States, observed thus:
“The judgment just delivered has my full concurrence but I feel impelled
to make a few observations not on the merits but on governmental
disposition to litigation, the present case being symptomatic of a serious
deficiency. In this country the State is the largest litigant to-day and the
huge expenditure involved makes a big draft on the public exchequer. In the
context of expanding dimensions of State activity and responisibility, is it
unfair to expect finer sense and sensibility in its litigation policy, the absence
of which, in the present case, has led the Railway callously and
cantankerously to resist an action by its own employee, a small man, by
urging a mere technical plea which has been pursued right up to the summit
Court here and has been negative in the judgment just pronounced.”
44. A learned single judge of this Court, in Kodali Rama Devi vs The
State of Andhra Pradesh12, observed thus:
These guidelines as recognized by Common Wealth Countries, the
litigation in the courts would be minimized though the Government of India or
State adopted Litigation Policy, but it did not serve any useful purpose.
Therefore, the Government, being a litigant, is at least expected to follow the
ethical issues and practical considerations while dealing with a citizen in
litigation before the Court and the government is expected to be honest
litigant, to minimize the litigation.
The Andhra Pradesh State also adopted State Litigation Policy dated
30.08.2011 and certain guidelines have been issued with objects mentioned
in second paragraph of litigation policy. The main objects are to manage and
conduct litigation in a coordinated and time bound manner; ensure that
strong cases are won and weak cases are not pursued needlessly; reduce
overall government litigation in courts thereby providing relief to the
judiciary etc., and also issued certain directions to prevent and control11
AIR 1974 SC 130
12
WP 18403 of 2021
Page 25 of 27 SRS,J
W.P.No.41748 of 2017avoidable litigation and settlement of disputes in alternative dispute
resolution system, guidelines for filing of appeals. But without keeping in
mind, the litigation policy, framed by State dated 30.08.2011, government
agencies and authorities are proliferating the litigation by evasive and un-
substantive pleas before court, thereby increasing litigation in the courts,
which is contrary to guidelines issued by Apex Court in the judgments
referred supra.
As per Clause 2.1 of the Andhra Pradesh State Litigation Policy, the
objective of the State is to transform Government from a compulsive litigant
into a responsible and efficient litigant, to:
a. manage and conduct litigation in a coordinated and time bound
manner;
b. ensure that strong cases are won and weak cases are not pursued
needlessly;
c. reduce overall Government litigation load in courts thereby providing
relief to the judiciary.
45. In the guise of protecting the properties, despite the judgment in the
Civil Suit, to overreach the judgment, the communication, impugned, was
made. A judgment rendered by the Court will be set aside or modified by the
appellate Court alone. Even, the legislature cannot overturn a judgment, it can
only take away the basis of the judgment. The 2nd respondent, Wakf Board,
cannot act as an appellate court to annul the judgment by communicating the
list and creating unwarranted litigation. The 2nd respondent should have kept
in mind the litigation policy and its objectives before creating undeserved
litigation.
46. Given the discussion, the writ petition is allowed. The communication
impugned in the writ petition, F.No. 01/Prot/Ap/Genl/2016 dated 10-3-2016 in
respect of Ac.2-00 cts in S.No. 508 of Guntur, is hereby set aside. The 3rd
respondent shall take steps to delete Ac.2-00 cts in S.No.508 (508/2) of
Page 26 of 27 SRS,J
W.P.No.41748 of 2017
Guntur from the list of prohibited properties forthwith. The 5th respondent shall
entertain the documents presented, if otherwise in order, in respect of the
aforementioned properties, and the 6th respondent shall consider building
permissions etc., strictly as per Law. No order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________
SUBBA REDDY SATTI, J
Note: LR Copy to be marked
B/O
IKN
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W.P.No.41748 of 2017
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 41748/2017
Dated: 22.04.2025
Note: LR Copy to be marked
B/O
IKN
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