Telangana High Court
R. Jaya Balan vs Mohammad Fazal on 4 June, 2025
Author: T. Vinod Kumar
Bench: T.Vinod Kumar, P.Sree Sudha
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT. JUSTICE P. SREE SUDHA
L.G.A. No. 1 of 2021
JUDGMENT:
(Per Hon’ble Sri Justice T. Vinod Kumar)
This Land Grabbing Appeal is filed against the Judgment
dated. 10.02.2021 in E.A. No.40 of 2018 in E.A No.26 of 2018
in E.P. No.361 of 2017 in L.G.O.P. No.442 of 2003 on the file of
IV Additional District and Sessions Judge, Ranga Reddy District
at L.B. Nagar.
2. The Appellants herein are respondent Nos.14 and 20 in the
underlying E.A. No.40 of 2018, which is filed under Order VII
Rule 11(a) and (d) r/w Section 151 of CPC to reject the claim
petition filed by the third parties under Section 47 r/w Order XXI
Rule 97 to 101 i.e. E.A. No.26 of 2018 filed to declare the order
passed in L.G.O.P No.442 of 2003 as in-executable as void ab
initio.
3. The brief of the case of the appellants is that the respondent
No.19 herein claims to have purchased land in Plot No.220 &
221, to an extent of 600 Sq. Yards in Sy.No.44/1 situated at
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Miyapur Village, Serilingampally Mandal, Ranga Reddy
District, was purchased through a registered Sale Deed dated
09.09.1996, respondent No. 19 had filed L.G.O.P. No.442 of
2003 against the respondent No.21/JDR No.1 to declare him as
land grabber in respect of the Schedule Property i.e. Plot
Nos.220 and 221 in Survey No.44/1 before the tribunal.
4. On the respondent No. 19 filing the petition before the
special tribunal (for short ‘Tribunal’). The tribunal during the
pendency of the above said L.G.O.P. No.442/2003 appointed an
Advocate Commissioner and also the Mandal Surveyor, who had
visited the property under Rule 6 of A.P. Land Grabbing
Prohibition Rules and filed his report. The said report
categorically demarcated that the schedule property is situated in
the Survey No.44/1. Accordingly, the said LGOP was allowed
vide order dated. 14.10.2016 declaring the respondent
No.21/JDR No.1 as land grabber.
5. The Tribunal while allowing the LGOP had directed the
respondent No.21 herein to vacate and handover the possession
within 90 days from the date of the order. Since, the respondent
No.21/JDR No.1 failed to vacate and handover the possession,
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the respondent No. 19 herein had filed the E.P. No.361 of 2017
to direct the Respondent No.21/JDR No.1 to deliver the
possession. The Executing Court had issued notice to the
respondent No.21/JDR No. 1. Despite of service of notice, he
failed to appear in the above said E.P, consequently executing
court issued the warrant of delivery of possession.
6. In furtherance of order in execution petition, the Bailiff of
the Court had visited the E.P. Schedule property on 25.11.2017
and identified the property. Since, there was an existing
construction in the Schedule property, the Bailiff could not
execute the warrant and the same was returned for passing
necessary orders. Therefore respondent No. 19/Decree Holder
had filed E.A. No.13 of 2018 and E.A. No.36 of 2018 to break
open the lock and provide police protection. Upon the executing
court passing orders, the court bailiff along with the Police had
visited the property on 09.07.2018 for execution of the warrant,
but the same was again returned unexecuted.
7. The respondent No.21/JDR No.1 failed to obey the warrant
issued by the court below. However, certain persons including
the appellants herein claiming through the respondent No.21
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have resisted the warrant of delivery of possession. The third-
party claim petitioners thereafter have filed appeal before this
court against the order in L.G.O.P. No.442 of 2003 vide LGA
No.5 of 2018, however the said appeal was dismissed as
withdrawn on 14.08.2018.
8. The respondent No. 19 herein thereafter had pressed for
disposal of execution petition filed by him vide E.P. No.361 of
2017. The third-party claim petitioners thereafter by falsely
claiming that schedule property is in Survey No.44/2 and not in
Survey. No. 44/1 had filed E.A. No.26 of 2018 in the E.P.
No.361 of 2017.
9. By the said application, the claim petitioners had sought to
declare the decree/orders/judgement in L.G.O.P. No.442/2003
passed by Special Tribunal as void abinitio and is not executable
against the claim petitioners claiming that their land lies in Sy.
No.44/2, Miyapur village of Serilingampally Mandal, Ranga
Reddy District.
10. During the pendency of the above said E.A. No.26 of 2018,
the respondent No. 19/Decree Holder had filed E.A. No.40 of
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2018 under Order 7 Rule 11(a) and (d) r/w Section 151 of CPC
for rejection of the claim petition filed by the Applicants/claim
petitioners.
11. Based on the above pleadings, the following point was
framed by the Tribunal for consideration in the above EA. No.40
of 2018:
“Whether the claim petition filed by respondents
herein under section 47 of CPC vide E.A. No. 26 of
2018 in E.P. 361 of 2017 is liable to be rejected?”
12. The Court upon perusal of the material evidence produced
in support of the case, observed that the there is no dispute that
the appellants are claiming title through respondent No.21/JDR
who sold the subject property during the pendency of LGOP
No.442 of 2003. Thus, as per Rule-102 of Order-XXI, the
petitioners herein have no right to resist or create obstruction in
execution of the decree for possession of the immovable
property. Thus, the claim petition is clearly hit by Order-VII,
Rule-11 (a) and (d) of CPC.
13. The trial Court further observed that the Claim petition i.e.
E.A. No.26 of 2018 filed by the respondents 1 to 20/claimants
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under Section 47 and Rule-97 to 101 of Order-XXI of CPC do
not disclose a cause of action and the same is barred by Section
52 of Transfer of Property Act and Order-XXI, Rule- 102 of
CPC.
14. Accordingly, the executing court by its order dated.
10.02.2021 allowed the said E.A. No.40 of 2018 and rejected the
claim petition filed by the appellants herein vide E.A. No.26 of
2018.
15. Aggrieved by the aforesaid order of the Trial Court, the
Appellants/respondent Nos.14 and 20 filed the present Appeal.
16. Heard Sri. J.C. Francis learned Counsel for the Appellants
and Sri. M.A. K. Mukheed, learned Counsel for Respondents and
perused the record.
17. At the outset it is to be noted that by the present appeal the
appellants while seeking to lay challenge to order dated.
10.02.2021 in E.A. No.40 of 2018 in E.A No.26 of 2018 in E.P
No.361 of 2017 in L.G.O.P No.442 of 2003, in fact are resisting
the execution of the order in L.G.O.P. No.442 of 2003 against
which they having filed L.G.A No.5 of 2018 and the same
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having dismissed as withdrawn. The appellants having availed
the remedy of appeal against the order in L.G.O.P cannot
maintain their claim by filing E.A. No.26 of 2018 and also this
appeal against the order of the Executing Court.
18. Further the case of the appellants is that the petition filed by
respondent No.19 herein under Order 7 Rule 11(a) and (d) r/w
Section 151 of CPC for rejection of the claim petition filed by
them is not maintainable, as the said provision is applicable only
in case of pre-decretal orders and does not apply to execution
proceedings. It is contended that in the instant case the claim
application filed by the respondents herein is under section 47 of
CPC which cannot be rejected through Order VII Rule 11 of
CPC inasmuch as the claim petition and the plaint are distinct
and different in nature. Further it is contended that LGOP
proceedings are not a suit or a civil proceeding for applying
provisions of CPC.
19. The appellants contend that the alienation during the
pendency of the LGOP proceedings do not attract the doctrine of
Lis pendence under Section 52 of Transfer of Property Act
inasmuch as the definition of property as contemplated in the
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section 52 of TPA only refers to the property in issue in a suit,
and does not include a claim petition in execution proceedings or
proceedings under the Land Grabbing Act, 1882.
20. The appellants further contend that respondent No.19 herein
is wrongfully claiming the land in Survey. No.44/2 as land in
Survey No. 44/1 which in turn belongs to the claim petitioner’s
and the property under execution is entirely distinct from the
property claimed to have been purchased by the respondent No.
19/Decree Holder.
21. Appellants further contended that they having invoked the
jurisdiction of the executing court under Section 47 of the CPC,
are entitled to question the legality and propriety of the execution
proceedings, and the application filed by the respondent No.19
for rejection is not maintainable and is liable to be dismissed;
and that the executing Court has erred in allowing the same.
22. Per contra, the respondent No.19 contends that he had
purchased land to an extent of 600 Sq.yards in Sy. No.44/1 with
reference to Plot Nos.220 & 221, Situated at Miyapur Village,
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Serilingampally Mandal, Ranag Reddy District vide registered
Sale Deed dated 09.09.1996.
23. The respondent No.19 further contends that instant case is
covered under Order 21 Rule 102 of CPC, where the appellants
being claim petitioners are claiming title of the schedule property
through the judgment-debtor having purchased the same during
the pendency of L.G.O.P. No.442/2003, are barred from resisting
or obstructing the execution of the decree. In accordance with
Order-XXI, Rule-102 of CPC, the transferee pendente lite has no
right to resist the execution of the warrant and the same is barred
under Section 52 of Transfer of Property Act.
24. The Respondent No.19 contends that a claim petition can be
treated as a plaint under Order VII of the CPC, and is therefore
amenable to rejection under the grounds enumerated in Order
VII Rule 11. In the present case, the invocation of Order VII
Rule 11(a) and (d) of the CPC, for rejection of the claim petition,
is justified, as the provisions of the CPC are applicable to
Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, to the
extent they are not inconsistent with the special enactment. The
Respondent No.19 further contends that if the present appeal is
10
entertained, then he may not enjoy the fruits of the decree passed
by court below.
25. We have taken note of the respective contentions urged.
26. It is pertinent to note that the appellants are claiming title
over the subject property through the respondent No.21/JDR,
from whom they purchased the property during the pendency of
LGOP. No.442 of 2003. However, since the appellant’s vendor,
i.e., Respondent No.21 / JDR, has been declared a land grabber
by the Tribunal, the appellants/Respondent Nos.14 and 20 cannot
claim any better title to the subject property than that of their
vendor.
27. Since, the appellants/respondent Nos.14 and 20 are
claiming subject property having purchased from the respondent
No.21/JDR, who is declared as land grabber, have to be
considered as successor in interest and would be liable for all the
actions of their vendor.
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28. The Supreme Court in Konda Lakshmana Bapuji v. Govt.
of Andhra Pradesh and Ors 1 has held that:
“25….A combined reading of Clauses (d) and (e) would suggest
that to bring a person within the meaning of the expression “land
grabber” it must be shown that: (i)(a) he has taken
unauthorisedly, unfairly, greedily, snatched forcibly, violently or
unscrupulously any land belonging to the Government or a local
authority, a religious or charitable institution or endowment,
including a wakf, or any other private person; (b) without any
lawful entitlement; and (c) with a view to illegally taking
possession of such lands, or enter or create illegal tenancies or
lease and licence agreements or any other illegal agreements in
respect of such lands or to construct unauthorised structures
thereon for sale or hire, or give such lands to any person on
rental or lease and licence basis for construction, or use and
occupation of unauthorised structures; or (ii) he has given
financial aid to any person for taking illegal possession of lands
or for construction of unauthorised structures thereon; or (iii) he
is collecting or attempting to collect from any occupiers of such
lands rent, compensation and other charges by criminal
intimidation; or (iv) he is abetting the doing of any of the
abovementioned acts; or (v) that he is the successor-in-interest of
any such persons.”
29. Further, it is also to be noted that the transfer of immovable
property by the respondent No.21/JDR to the appellants herein
attracts Section 52 of Transfer of Property Act, (for short TP
Act) which bars the transfer during the pendency of suit or
proceeding. Section 52 of Transfer of Property Act reads as
follows:
1
AIR 2002 SC 1012
12
52. Transfer of property pending suit relating thereto-
During the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or
established beyond such limits by the Central Government of
any suit or proceedings which is not collusive and in which any
right to immoveable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the
rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the
Court and on such terms as it may impose.
30. Since, Section 52 of TP Act uses the expression ‘any suit or
proceedings the claim of the appellants that the said provision
applies to only suits is without any merit. Further, the use of
expression ‘any court’ would take within its ambit the tribunal
constituted under the Act. That apart Section 17 of the Act also
prohibits alienation of lands grabbed. As the respondent No.19
herein by filing the underlying O.P. had alleged the respondent
No.21 having grabbed the petition schedule property, the
alienation of the same by the respondent No.21/JDr in favour of
appellants herein would also stand hit by the provisions of
Section 17 of the Act. Thus, the contention of the appellants on
this aspect has to fail.
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31. Thus, the appellants being transferee pendente lite as per
order XXI rule 102 of CPC have no right to resist the execution
of the warrant and are barred from resisting or obstructing the
execution of the decree. Order XXI Rule-102 of CPC reads as
follows:
102. Rules not applicable to transferee pendent lite.
Nothing in rules 98 and 100 shall apply to resistance
or obstruction in execution of a decree for the
possession of immovable property by a person to whom
the judgment-debtor has transferred the property after
the institution of the suit in which the decree was
passed or to the dispossession of any such person.
32. Order XXI Rule 102 clarifies that Rule 98 and Rule 100
shall not apply in a case where resistance or obstruction in
execution of a decree for the possession of immovable property
is offered by “transferee pendente lite” i.e. the person to whom
the property is transferred by the judgment-debtor after
institution of the suit, decree of which is sought to be executed
was passed. (Sriram Housing Finance & Investment (India)
Ltd. v. Omesh Mishra Memorial Charitable Trust 2)
2
(2022) 15 SCC 176
14
33. It is to be noted that resistance or obstructions made by a
third party to the decree of execution cannot be gone into under
Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the
Code are subsumed under the caption “Resistance to delivery of
possession to decree-holder or purchaser”. Those rules are
intended to deal with every sort of resistance or obstructions
offered by any person and rule 102 explicitly bars the third party
from resisting the execution pf proceedings.
34. The Apex Court in Silverline Forum (P) Ltd. v. Rajiv
Trust 3, has observed that:
10. It is true that Rule 99 of Order 21 is not available to any
person until he is dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all questions “arising
between the parties to a proceeding on an application under
Rule 97 or Rule 99” shall be determined by the executing court,
if such questions are “relevant to the adjudication of the
application”. A third party to the decree who offers resistance
would thus fall within the ambit of Rule 101 if an adjudication is
warranted as a consequence of the resistance or obstruction
made by him to the execution of the decree. No doubt if the
resistance was made by a transferee pendente lite of the
judgment-debtor, the scope of the adjudication would be shrunk
to the limited question whether he is such a transferee and on a3
(1998) 3 SCC 723
15finding in the affirmative regarding that point the execution
court has to hold that he has no right to resist in view of the
clear language contained in Rule 102. Exclusion of such a
transferee from raising further contentions is based on the
salutary principle adumbrated in Section 52 of the Transfer of
Property Act.
12. The words “all questions arising between the parties to a
proceeding on an application under Rule 97” would envelop
only such questions as would legally arise for determination
between those parties. In other words, the court is not obliged to
determine a question merely because the resister raised it. The
questions which the executing court is obliged to determine
under Rule 101, must possess two adjuncts. First is that such
questions should have legally arisen between the parties, and
the second is, such questions must be relevant for consideration
and determination between the parties, e.g., if the obstructor
admits that he is a transferee pendente lite it is not necessary to
determine a question raised by him that he was unaware of the
litigation when he purchased the property. Similarly, a third
party, who questions the validity of a transfer made by a decree-
holder to an assignee, cannot claim that the question regarding
its validity should be decided during execution proceedings.
Hence, it is necessary that the questions raised by the resister or
the obstructor must legally arise between him and the decree-
holder. In the adjudication process envisaged in Order 21 Rule
97(2) of the Code, the execution court can decide whether the
question raised by a resister or obstructor legally arises
between the parties. An answer to the said question also would
be the result of the adjudication contemplated in the sub-section.
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35. It is eventually settled position of law that an application
filed under Rules 58, 97 or 99 of Order XXI is required to be
decided as though it is a suit, as is evident from the language
employed in Rules 58, 101 and 103 of Order XXI. Once an
application under this provision is equated to a suit, the
procedure prescribed for a suit would apply to the applications
filed thereunder. (See: T.N.V. Ravi Kumar Vs. Sumeet Pal
Singh 4).
36. It is also noted that the Order XXI Rule 101 of CPC deals
with Question to be determined, which was introduced by
amendment to CPC in the year 1976. Prior to the amendment,
any third party who resisted delivery of possession in execution
of a decree had to institute a separate and independent civil suit
to assert their rights. The executing court had no jurisdiction to
adjudicate upon claims of ownership or possession raised by
persons who were not parties to the original decree. Whereas
post amendment the executing court is empowered to entertain
and decide all questions, including those relating to right, title, or
interest in the property arising between the decree-holder and
4
2015 (3) ALT12
17
any person obstructing execution, even if such a person is a third
party. As a result of the amendment, all such claims can now be
adjudicated within the scope of the execution proceedings and in
accordance with the procedure prescribed under CPC. The
parties are barred from filing separate civil suits, and the decision
of the executing court under these provisions is final.
37. The Supreme Court in Ashan Devi v. Phulwasi Devi5 while
dealing with the amendment of CPC in 1976 had observed that:
“It is necessary at this stage to take into account the objects of
drastic amendments introduced to the Code of Civil Procedure
by Act 104 of 1976. This Court in the case of Shreenath 6 has
compared the unamended provisions of the Code in Order 21
and the provisions introduced after amendment. It is noticed
that earlier under the Code, the third party “dispossessed” in
the execution of the decree was required to institute an
independent suit for adjudication of its right and claims. In
order to shorten the litigations concerning same properties
between same and third parties, claims of third parties to the
property in execution are now required to be determined by the
executing court itself in accordance with provisions under
Order 21 Rule 101 with right of appeal to the higher court
against such adjudication treating it to be a “decree” under
Order 21 Rule 103 of the Code.”
5
(2003) 12 SCC 219
6
(1998) 4 SCC 543
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38. Having regard to the law as enunciated by the Hon’ble
Supreme Court, merely on account of amendment to CPC made
in order to shorten litigation, it cannot be said that the respondent
No.19 herein who having a right to file petition under Order VII
Rule 11 of CPC, prior to 1976 amendment has lost such right
post 1976 Amendment to CPC.
39. Considering the appellants herein have filed claim petition
making a claim to the land held by the tribunal as belonging to
the Respondent No.19, the claim petition would have to be
considered as plaint and having regard to the provisions of
Section 7 and 7A of the Act which categorically states that
provisions of the CPC are applicable to Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982, to the extent they are not
inconsistent with the special enactment and Special Tribunal
shall, in the trial of cases before it, follow the procedure
prescribed in the Code of Civil Procedure,1908, this Court is of
the view that respondent No.19/DHr is entitled to maintain
petition.
40. In light of the foregoing discussion, as it is evident that the
appellants are claiming title to the subject property through
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Respondent No.21 / Judgment Debtor (JDR) who had transferred
the property during the pendency of LGOP No. 442 of 2003, the
same is hit by the doctrine of lis pendence as embodied under
Section 52 of the Transfer of Property Act, 1882, and is therefore
invalid. Furthermore, as the appellants derive their claim
pendente lite, they are barred from resisting or obstructing
execution proceedings under Order XXI Rule 102 of the Code of
Civil Procedure. Consequently, the claim petition filed by the
appellants is not maintainable and the tribunal has rightly
rejected the same by allowing the petition under Order VII Rule
11 of the C.P.C by the respondent No. 19n herein.
41. For the aforesaid reasons, this Court is of the view that the
Appeal vide LGA. No.1 of 2021 filed by the
appellants/respondent Nos.14 and 20 as against the order, dated.
10.02.2021 in E.A. No.40 of 2018 does not suffer from any
infirmity or error for being interfered by this Court in the appeal,
and thus, LGA. No.1 of 2021 is devoid of merit and is
accordingly, dismissed.
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As a sequel, miscellaneous petitions pending if any shall
stand closed. No order as to costs.
____________________
T. VINOD KUMAR, J
_________________
P. SREE SUDHA, J
Date:04-06-2025
MRKR/VSV