M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. versus M. S. MURTHY & ORS. ETC. on 15 June 2023

[2023] 8 S.C.R. 283

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC.

v.

M. S. MURTHY & ORS. ETC.

(Civil Appeal Nos. 4049-4053 of 2023)

JUNE 15, 2023

[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]

Suit – Partition suit – Decree – Preliminary decree – Mathrukaproperty – Whether on facts, the Division Bench of the High Courtwas right in declaring that the preliminary decree dated 28.06.1963was vitiated by fraud and consequently null and void, especiallywhen there was no pleading and no evidence let in – Held: Thepreliminary decree dated 28.06.1963 could not have determinedthe claim to title made by the legal heirs seeking partition, as againstthird parties – Any finding rendered in the preliminary decree, thatthe properties were Mathruka properties liable to be partitioned,was only incidental to the claim of the legal heirs and such a findingwill not be determinative of their title to property as against thirdparties – The manner in which the judgment and preliminary decreedated 28.06.1963 were sought to be used, abused and misused byparties to the proceedings as well as non-parties who jumped intothe fray by purchasing portions of the preliminary decree andseeking to execute them through Court, defeating the rights of thirdparties, is what has prompted the Division Bench of the High Courtto hold that the preliminary decree is vitiated by fraud – What wasa simple suit for partition; and the incidental finding recorded thatthe properties were Mathurka properties, have been used by partiesand non-parties to assert title to the properties against strangers –This was definitely an abuse of the process of law – The judgmentand preliminary decree dated 28.06.1963, though may not be vitiatedby fraud, are certainly not binding upon third parties like the claimpetitioners as well as the Government who have set up independentclaims and whatever was done in pursuance of the preliminary decreewas an abuse of the process of law.

Suit – Decree – Preliminary decree – ‘Paigah’ Estate – Mathrukaproperty – Whether on facts, the concurrent findings of the SingleJudge and the Division Bench of the High Court that Khurshid Jah

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Aa ‘Paigah’ grantee, did not leave behind any Mathruka property,goes contrary to the finding recorded in the Judgment andpreliminary decree that has attained finality – Whether the findingrecorded in the judgment and preliminary decree that the lands inquestion are Mathruka property was binding upon third parties –Held: No finding was ever recorded by the Trial Judge in hisBjudgment dated 28.06.1963 that the properties left behind byKhurshid Jah were Mathruka properties – Therefore, the contentionas though there was such a finding and that the finding has attainedfinality and that the impugned Judgment goes contrary to such afinding, is wholly misconceived – The Single Judge as well as theCDivision Bench (in the impugned judgment) were right in holdingthat the properties were not established to be Mathruka properties –The effect of the order of the Nazim Atiyat was not examined by theTrial Judge – In any case, such an examination had to be doneindependently and not in a partition suit, keeping in view, the 1955Act and various subsequent enactments relating to agricultural landDreforms and urban land ceiling – When the entire claim of theappellants that the properties were Mathruka properties inheritableby the legal heirs had failed, the question of executing a decree onthe strength of the plea that the property is a Mathruka propertydoes not arise – The predecessors of the appellants have hadEknowledge that faisal patti were recorded in the name of the claimpetitioners in 1978 itself – Even the Receiver was aware of this, asseen from the letter written by the Receiver on 09.04.1980 to theCollector – It is too late in the day for the appellants to question asto how the claim of the claim petitioners stood established.FCode of Civil Procedure, 1908 – Order XXI, rr.97- 101 –Enquiry under – Scope of – Held: In an enquiry under Order XXI,rr. 97 to 101, CPC, the Executing Court cannot decide questions oftitle set up by third parties (not claiming through or under the partiesto the suit or their family members), who assert independent title in themselves – All that can be done in such cases at the stage ofGexecution, is to find out prima facie whether the obstructionists /claim petitioners have a bona fide claim to title, independent of therights of the parties to the partition suit – If they are found to havean independent claim to title, then the holder of the decree forpartition cannot be allowed to defeat the rights of third parties inHthese proceedings.

Suit – Partition suit – Preliminary decree – Effect of – Held:A preliminary decree in a suit for partition merely declares the sharesthat the parties are entitled to in any of the properties included inthe plaint schedule and liable to partition – On the basis of a meredeclaration of the rights that take place under the preliminary decree,the parties cannot trade in, on specific items of properties or specificportions of suit schedule properties – Since there are three stagesin a partition suit, namely (i) passing of a preliminary decree interms of Order XX Rule 18(2); (ii) appointment of a Commissionerand passing of a final decree in terms of Order XXVI Rule 14(3);and (iii) taking possession in execution of such decree under OrderXXI Rule 35, no party to a suit for partition, even by way ofcompromise, can acquire any title to any specific item of propertyor any particular portion of a specific property, if such a compromiseis struck only with a few parties to the suit – Code of Civil Procedure,1908 – Order XX, r.18(2); Order XXVI, r.14(3) and Order XXI, r.35.

Suit – Partition suit – Held: In a suit for partition, the CivilCourt cannot go into the question of title, unless the same isincidental to the fundamental premise of the claim.

Disposing of the appeals, the Court

Conclusion

HELD: 1. The way in which the suit claim has been valuedand court-fee paid, demonstrates very clearly that it was not asuit for declaration of title to any property. It was only a suit forpartition. All the suit schedule properties have been valued at aparticular rate and court- fee was paid on the value of the share,of which the plaintiff was seeking partition. If it was a suitcontaining a prayer for declaration of title, the court-fee was liableto be paid on the whole value of the property and not on theshare sought to be partitioned. Therefore, the preliminary decreedated 28.06.1963 could not have determined the claim to titlemade by the legal heirs seeking partition, as against third parties.Any finding rendered in the preliminary decree, that theproperties were Mathruka properties liable to be partitioned,was only incidental to the claim of the legal heirs and such a findingwill not be determinative of their title to property as against thirdparties. [Paras 119 & 120][341-E-H]

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A2. Technically the High Court may not be right, in the truelegal sense, in branding the preliminary decree as vitiated byfraud. But the fact remains that insofar as third parties to thefamily of Khurshid Jah (and those claiming under them) areconcerned, the preliminary decree is nothing more than a merepaper, as those third parties have had nothing to do with the claimBfor partition, though they have had a legitimate claim to title tothe properties, described in the suit schedule. Therefore, thejudgment and preliminary decree dated 28.06.1963, though maynot be vitiated by fraud, are certainly not binding upon third partieslike the claim petitioners and the Government who have set upCindependent claims. Also, in an enquiry under Order XXI, Rules97 to 101, CPC, the Executing Court cannot decide questions oftitle set up by third parties, who assert independent title inthemselves. Marina Beach (in Chennai) or Hussain Sagar (inHyderabad) or India Gate (in New Delhi) cannot be included asDone of the items of properties in the Plaint Schedule, in a suit forpartition between the members of a family and questions of titleto these properties cannot be allowed to be adjudicated in theclaim petitions under Order XXI, Rules 97-101, CPC. [Para126][344-E-H; 345-A]

E3. The judgment and preliminary decree dated 28.06.1963,though may not be vitiated by fraud, are certainly not bindingupon third parties like the claim petitioners as well as theGovernment who have set up independent claims and thatwhatever was done in pursuance of the preliminary decree wasan abuse of the process of law. In an enquiry under Order XXI,FRules 97 to 101, CPC, the Executing Court cannot decidequestions of title set up by third parties (not claiming through orunder the parties to the suit or their family members), who assertindependent title in themselves. All that can be done in suchcases at the stage of execution, is to find out prima facie whetherGthe obstructionists/claim petitioners have a bona fide claim totitle, independent of the rights of the parties to the partition suit.If they are found to have an independent claim to title, then theholder of the decree for partition cannot be allowed to defeat therights of third parties in these proceedings. [Para 139][348-D-G]

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4. Since everyone focused attention only on Hyderabad JagirAbolition Regulations, 1948 and a contention was raised that thepersonal properties of the Jagirs were exempt under Section 18,no one ever examined the impact of 1955 Act. Even if the propertyin question escapes the guillotine under the Jagir AbolitionRegulations, it may meet its fate under the 1955 Act. Therefore,the Single Judge as well as the Division Bench were right inholding that the properties were not established to be Mathrukaproperties. The effect of the order of the Nazim Atiyat was notexamined by the Trial Judge. In any case, such an examinationhad to be done independently and not in a partition suit, keepingin view, the 1955 Act and various subsequent enactments relatingto agricultural land reforms and urban land ceiling. [Paras 159 &160][355-B-E]

5. When the entire claim of the appellants that theproperties were Mathruka properties inheritable by the legal heirshad failed, the question of executing a decree on the strength ofthe plea that the property is a Mathruka property does not arise.[Para 166][356-F-G]

NSS Naryana Sarma v. M/s Goldstone Exports PrivateLtd. (2002) 1 SCC 662 : [2001] 5 Suppl. SCR 327;Venkata Reddy v. Pethi Reddy AIR 1963 SC 992 : [1963]2 Suppl. SCR 616; Raja Ram Chandra Reddy v. RaniShankaramma AIR 1956 SC 319; Sikander JehanBegum v. Andhra Pradesh State Government AIR 1962SC 996 : [1962] 2 Suppl. SCR 226; State of AndhraPradesh (Now State of Telangana) v. A.P. State WakfBoard 2022 SCC OnLine SC 159; Mohd. HabbibuddinKhan v. Jagir Administrator, Government of AndhraPradesh (1974) 1 SCC 82; Rangammal v. Kuppuswami(2011) 12 SCC 220 : [2011] 6 SCR 835; NationalTextile Corporation (Maharashtra South) Ltd. v.Standard Chartered Bank (2000) 10 SCC 592 andLachhman Dass v. Jagat Ram and Others (2007) 10SCC 448 : [2007] 2 SCR 980 – referred to.

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ACase Law Reference

From the Judgment and Order dated 20.12.2019 of the High CourtDfor the State of Telangana at Hyderabad in OSA Nos. 54, 56, 57, 58 and59 of 2004.

With

Civil Appeal Nos. 4054, 4055-4058, 4059, 4060, 4061-4064, 4065,4066, 4067 and 4068-4072 of 2023.E

Gopal Sankarnarayanan, V. V. S. Rao, K. S. Murthy, P.V.Surender Nath, C. S. Vaidyanathan, B Adinarayana Rao, Ranjit Kumar,Hemendranath Reddy, Sr. Advs., Mandeep Kalra, N M Krishnaiah,Ms. Radhika Narula, Ms. Divya Singh Pundir, Rishabh Lekhi, Ms.Tanya Singh, Ms. Anushna Satapathy, Anand Sanjay M. Nuli, SurajFKaushik, Nanda Kumar K. B., Shiva Swaroop, M/s. Nuli & Nuli,Santosh Krishnan, V N Murthy, Ms. Deepshikha Sansanwal, TadimallaBhaskar Gowtham, Sandeep Singh, D. Srinivas, A.V.S. Raju, Mrs.Lekha Sudhakaran, S. Senthil Kumar, V. Senthil Kumar, M. Venkatesulu,Raghavendran, M. Sriharibabu, M. A. Chinnasamy, SriharshaPeechara, Rajiv Kumar Choudhry, Ms. Pallavi, Duvvuri SubrahmanyaGBhanu, Vinayak Goel, Byrapaneni Suyodhan, Bharat J Joshi, KumarShashank, Abhijit Basu, Ms. Tatini Basu, Rohan Divan, BalajiSrinivasan, V. V. S. Rao, K. S. Murthy, Mullapudi Rambabu, K. VenkatRao, M/s. M. Rambabu and Co., Rajnish Kumar Jha, Ms. JasmineDamkewala, Ms. Anu Gupta, Kaushal Yadav, Nandlal Kumar Mishra,HMs. Yashoda Katiyar, Arjun Raghuvanshi, Ritul Tandon, Ram Kishor Singh Yadav, Namit Saxena, Awnish Maithani, Prashanth Reddy,Shivam Raghuwanshi, Ms. Shiksha Ashra, Suyash Vyas, KumarShashank, Nivesh Kumar, Ms. Suditi Singh, Nitish Rai, Piyush Tonk,Vishal Prasad, Advs. for the appearing parties.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

Permission to file special leave petitions is granted in DiaryNo.19266 of 2022.

2. Delay condoned.

3. Leave granted.

4. Aggrieved by a common judgment rendered by the DivisionBench of the High Court for the State of Telangana in a batch of intra-Court appeals, confirming the judgment of the learned Single Judge ofthe High Court in a batch of applications in a civil suit, various partiesincluding the State of Telangana and some third parties have come upwith these civil appeals.

5. We have heard Shri Gopal Sankarnarayanan, learned seniorcounsel appearing for one set of parties who are the appellants herein(and who claim to be the assignees of the decree), Shri B. AdinarayanaRao, Shri Chander Uday Singh, Shri Ranjit Kumar, learned senior counseland Shri Santosh Krishnan, learned counsel appearing for parties whoobstructed the execution of the decree (claim petitioners) and whosucceeded before the High Court, Shri C.S. Vaidyanathan, learned seniorcounsel appearing for the State of Telangana and Shri V.V.S. Rao, ShriHemendranath Reddy and Shri K.S. Murthy, learned senior counselappearing for third parties and Shri Dushyant Dave, learned senior counselappearing for an Asset Reconstruction Company which has filed anapplication for intervention.

Background Facts:

6. Hyderabad was a Princely State until it came to be annexed tothe Union of India on 18.09.1948 through police action which came tobe popularly known as “Operation Polo.” HEH the Nizam was itsRuler till then. While outsourcing is something which we have now cometo be familiar with only in the twentieth century, HEH the Nizam seemsto have adopted the practice of outsourcing even defence services more A

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Athan 200 years ago. It seems that the Nizam had the practice of grantingcertain lands to people for the purpose of supply and maintenance ofArmed Forces. The lands so granted came to be known as “PaigahEstate.”The dispute on hand relates to a Paigah granted to a person byname Khurshid Jah and the grant came to be known as Khurshid JahPaigah. To understand the nature and sweep of the dispute on hand, itBmay be relevant to take a peep into history.

7. It appears that one Mir-Qamar-ud-din Khan (who was giventhe title Asaf Jah) was one of the feudal chiefs of the Moghuls and wasthe Governor of Deccan from 1713 to 1721. Later he proclaimedindependence and founded the Asaf Jahi dynasty in Hyderabad.C

8. As stated by Gribble in his “History of Deccan”, Asaf Jahbrought with him a number of followers, both Mohammadens and Hindus,who were attached to his person and fortunes. To the Mohammedannobles, he granted Jagirs or estates on military tenure and employedthem as his Generals. The Hindus were employed principally in theDadministrative work in the departments of revenue and finance. To themalso he granted Jagirs as remuneration for their services and all theseJagirs whether granted for civil or military purposes came to be regardedas hereditary.

9. Distinguished among the Muslim followers was MohammedEAbul Khair Khan, a member of a noted family which had settled forsome generations in Oudh and afterwards in Agra. He had renderedmeritorious services in battles and was the recipient of several favoursand honours at the hands of the Nizam. He was eventually made a“Commander of 6000 horsemen”, with the title of “Imam Jung”. HeFdied in 1751 A.D. His son, Abul Fateh Khan, who followed in the footstepsof his father, soon rose to great prominence. His services also gotrewarded and his estate swelled up by reason of fresh grants and sanads.

10. Eventually, in or about the year 1198 H. (1784 A.D.) the Jagirsroughly coinciding with what sometime thereafter were called the PaigahGEstates, were granted to him by Nizam Ali Khan under a Perwana. Onhis death, a fresh grant of the same estate and of about the same areawas made in 1205 H. to his son, Fakhruddin Khan, who was a minorthen. This grant seems to have been made as Paigah grant.

11. In fact, the term ‘Paigah’ as used in the Parwan of 1198, and1205 H. connotes an estate granted for maintenance of the army. AbulH

Fateh Khan indeed expressly undertook to maintain a regular number oftroops at a definite cost. In 1253H. on the application of FakhruddinKhan, a regular sanad was granted. That sanad is the foundation of thetitle of the Paigah family. The nature of the grants evidenced by thissanad would show that these grants were burdened with obligations tomaintain Paigah troops for the services of the Nizam.

12. Fakhruddin Khan, however, died in 1863 A.D. He wassucceeded by his eldest surviving son, Rafiuddin Khan, who was co-Regent of the Hyderabad State along with Sir Salar Jung during theminority of the late Nizam Mir Mahboob Ali Khan. On the death ofRafiuddin Khan, disputes arose about the family properties betweenRashiduddin Khan, his brother, and Motashim-ud-Daula and Bashir-ud-Daula (Sir Asman Jah) the two sons of Sultanuddin Khan, another brotherof Rafiuddin Khan. Before these quarrels were settled, Motashim-ud-Daula and Rashiduddin Khan died. Eventually in 1882 A.D., an awardwas madeby Sir Salar Jung,between Asman Jah on the one side andRashibuddin Khan’s two sons, Khurshid Jah and Vikar-ul-Umara on theother, as a result of which certain estates called Paigah Taluqas wereawarded to Asman Jah. The remaining Paigah Taluqas of the familywere divided between Khurshid Jah and Vikar-ul-Umara as a result ofthe award of Mr. Ridsdale. There was a partial division of the familyproperty in 1878 A.D. also. As a result of these arrangements, the originalPaigah Estate become divided into three separate estates known as theAsman Jahi Paigah, Khurshid Jahi Paigah and Vikar-ul-Umrahi Paigah.

13. Thereafter, Asman Jah, Khurshid Jah and Vikar-ul-Umararemained in possession of their respective Paigahs until their deaths.These Paigah grantees, were not the absolute owners of the estates. Infact, the Jagirs in Hyderabad State were neither in the nature ofZamindaries of Madras State nor of Taluqdaris of U.P. While proprietaryrights vested in the Zamindars of Madras and Taluqdars of Oudh, theJagirdars in Hyderabad were entitled only to the usufructs of revenuefrom the estate for life. The grant, in law, on the death of Jagirdarwould revert to the Crown and would be made as a fresh grant to thenew Jagirdar. The Paigah estates with which this case is concerned,was no exception to this. In fact, since they were burdened with theobligation to maintain Paigah troops, they were liable to be resumed bythe Nizam if he so willed. The Nizam could as well commute the militaryburden into an equivalent money payment and require such payment on A

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Apain of resuming the Paigah Jagir. He was, at any time entitled to statethat he does not require troops but requires money in their stead.

14. Besides, Paigahs like Jagirs were inalienable and impartiablesave with the consent of the Nizam. Therefore, the above-mentionedpartitions required the consent of the Nizam. In fact, several partitionsBwhich took place, obviously had the implied consent of the Nizam. On12th Rajab 1337 H. (12-4-1919) the Nizam appears to have orderedthat the Paigah Jagirs were not to be further divided.

15. But the fact that the Paigah Jagirs as they stood at that timewere not to be physically divided, did not prevent such members of theCfamily as are legally entitled thereto, from dividing the shares of theincome of the Jagirs.

16. A special feature of the Paigah, as also of Jagirs and Inamsin Hyderabad State was that possession of the estate was given to asingle person as the Paigah holder (in case of Paigahs) who, in additionDto his own shares, was entitled in respect of the management, a specificshare in the income of the estate and this right was called Haqe Inthezamor right of management. The junior members were entitled to their sharesafter deducting the Haqe Inthezam and other administrative expenses.There used to be others also known as Guzaryats.

E17. The Paigah Estate included some Zat Jagirs as distinct fromthe Paigah taluks granted from time to time. They too were eventuallymerged in the Paigah estates. The holder of the Paigah was calledAmir. Though the holder was the Amir, the heirs of the original grantees,as in the case of any other Jagirs, were entitled to their respectiveshares in the revenue, by inheritance, of course, after deducting theFshare of the Amir and also the administrative expenses. The Amir had aspecial share of his own to support his position as the head and managerof the Paigah and its representative towards the Nizam and the public.This share was previously unascertained. That was the reason why untilthe death of Sir Khurshid Jah and the other respective holders of theGPaigah, the Amirs were practically the only persons to be consideredand they could take for themselves what part of the income they thoughtfit.

18. In order to remedy the injustice caused by such arbitrary andcapricious way of appropriation of the income, several committees cameup with proposals. Sir Brain Egerton’s Committee proposed among otherH

things that the Amir should be allowed to take 11D 2 annas in the rupeeof the gross income of the Paigah. The Reilly Commission proposedthat Amir should take a definite portion of the net, instead of the grossincome of the Paigah. In fact, in respect of Jagirs there was also aFarman of 1340 H that the manager should be allowed 4 annas in therupee of the net income.

19. Sir Khurshid Jah died on Rabi-al-Thani, 1320 H (July, 1902)leaving behind him surviving, two sons, by name Imam Jung and ZafarJung as his only recognised legitimate heirs. As already stated, any grantof Jagir, on the death of the grantee would lapse to the Crown and afresh grant could be made to any of the heirs of the previous grantee.The Nizam had ample powers to resume the Jagirs or to appoint anyperson, be he the eldest son or not, as the Amir or make any otherarrangements.

20. On the death of Sir Khursid Jah, no Amir was appointed bythe Nizam in relation to that Paigah until 1345 H (February, 1927) andno member of the family was put in complete charge of the Paigah.Nawab Zafar Jung, under a Farman issued a few weeks after the deathof Sir Khurshid Jah, was put in charge of the Khurshid Jahi Paigah as amere supervisor and trustee to carry on the ordinary routine work andwas directed to take the Nizam’s orders on all important matters and toaccount for the income and expenditure of the estate.

21. The administration of this Paigah estate, as in the case ofother Paigahs in which similar arrangements were made, did not farebetter and in fact all these estates ran into huge debts. A ControllerGeneral of Paigah Affairs called Sadr-Ul-Moham of the Paigahs wasappointed by the Nizam to undertake complete control and managementof the three Paigahs under his orders. This step proved successful andthe able and efficient management of the committee helped to build upappreciable reserves for each of the Paigah estates after wiping outthe huge debts.

22. It was then that Lutfuddaula was appointed Amir under theFarman dated 29[th]Rajjab, 1345 H (2-2-1927) A.D. During the interval,the properties left by Khurshid Jah were not permitted to be divided,though claims were advanced by his two sons and by their children.

23. In connection with the claims made by various heirs, the Nizamappointed as many as three Royal Commissioners: (1) The Egerton A

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ACommittee (2) The Glancy Commission and (3) The Reilly Commission.

24. After a careful consideration of these reports, a th thFarman wasissued on 17January, 1929 (5Shahban1347 H.) The Nizam statedtherein that in regard to the Paigah, he held a three-fold capacity (i) asthe Ruler of the State (ii) as the head of Sarf-i-khas and (iii) as theBpatron of the Paigah family.

25. In Para 2 of the General Orders of the Farman, he directedthat “whatever property had hitherto been acquired or articlespurchased or buildings constructed out of the income of the Paigahswill be considered the property of the Paigahs and not that of anyCindividual, and it will not be liable to division like Mathrukaproperty”.

26. In Order II the Nizam directed that one-third of the grossincome should be appropriated for the administrative charges of the Jagir,and the second-third would constitute the Manager’s share i.e., theDPaigah Amir’s share and the remaining one-third shall form the shareof the other heirs, i.e., the shareholders of the Paigah.

27. In Order III Para 9, he further directed that the precious stones,jewellery and rare articles, which, in accordance with the principles laiddown in Para 2 of the Farman are the property of the Paigah fromEolden times, or have been purchased with money belonging to the Paigahswill remain with the Paigah Amir in trust. Paigah Amir shall not havethe right to sell, pledge, or give them to any person, but they can be lentfor temporary use to members of the Paigah family after obtaining theNizam’s sanction from time to time, provided the Amir holds himselfresponsible for their safety and careful use. In Order III Para 2, theFNizam directed that if there is any property left as intestate property ofany Paigah, the distribution thereof shall also be settled by the Committeeappointed by the Farman.

28. The Nizam stated in Order III, Para 2 that at the time of SirKhurshid Jah’s death, his two sons Imam Jung and Zafar Jung were hisGonly heirs, who, if alive then, would have been entitled to one half shareeach of third part of the gross income, and that since both are dead andthe number of their survivors were large and regarding some of them(especially among Zafar Jung’s heirs) there was difference of opinionas to the legality of certain marriages and the legitimacy of some children,a Committee had to be appointed for the distribution of the third part ofH

the gross income of the Khurshid Jahi Paigah among the heirs ofKhurshid Jah’s two sons.

29. This Committee was presided over by Nawab Mirza Yar Jung,the then Chief Justice of Hyderabad and they submitted their report on17[th]January, 1929. This Committee, known as the Paigah Committee,gave a definite finding that Nawab Khurshid Jah left no property whichwas not acquired or purchased out of the Paigah income within themeaning of Para 2 of the preliminary portion of the Farman. Thus, whatwas left by Sir Khurshid Jah were (1) the properties or articles purchasedor buildings constructed out of the income of the Paigahs and (2) preciousstones, jewellery and rare articles which, in accordance with the principleslaid down in the Farman are the property of the Paigahs from oldentimes, or have been purchased with money belonging to the Paigahswhich are held by the Paigah Amir in trust as heirlooms of the Paigahfamily. Distribution of these two classes of properties, including theiraccretions, could not be made, in view of the Farman, amongst the heirsof Nawab Sir Khurshid Jah, as they were held indivisible, impartible andinalienable. The Amir Paigah was only a supervisor and trustee forthese properties.

30. Twenty years after this report, the political atmosphere changedand the Jagirs and the Paigahs were abolished by means of the JagirAbolition Regulations (Hyderabad Regulation No. 69 of 1358 F) witheffect from 15.08.1949. The Jagirs and the properties connected withthe Jagirs were taken over by the Jagir Administrator and the Jagirdarswere declared entitled only to the commutation amount. The otherproperties and estates unconnected with the Jagirs, however, wereallowed to remain with the Jagirdars.

31. In the year 1955-56, a lady by name Dildar-Un-Nissa Begum,who was one of the lineal descendants of Khurshid Jah filed a suit inO.S.No.41 of 1955-56 on the file of the City Civil Court, Hyderabad,claiming (i) that the Estate left behind by Nawab Khurshid Jah was aMathruka Estate; and (ii) that she is entitled to 29/2944 share. It mustbe mentioned at this stage that the fight in O.S. No. 41 of 1955 as it wasoriginally instituted, was actually between the surviving heirs of NawabZafar Jung on the one hand and the surviving heirs of Nawab ImamJung on the other hand. (Nawab Zafar Jung and Nawab Imam Jungwere the sons of Khurshid Jah). To be precise, the surviving heirs ofNawab Zafar Jung were arrayed as, (i) the plaintiff; and (ii) defendant A

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ANos. 1-35 and 44-49. Similarly, the surviving heirs of Nawab Imam Jungwere arrayed as defendant Nos. 36-42 and 50. Defendant No.43 wasthe Jagir Administrator of the Government of Hyderabad. It may alsobe mentioned here that at the time of the institution of the suit, therewere only 43 defendants with the Jagir Administrator being the last,namely defendant No.43. However, subsequently the number ofBdefendants swelled to unmanageable proportions both on account of thedeath of the original defendants one after the other and various otherfactors which we shall see later.

32. The reliefs sought for in the suit were as follows:- C“The Plaintiff therefore prays that a preliminary decree be passed:- (a) directing that the properties detailed in Schedule IV which arein the possession of the part as detailed therein and the other (b)category properties detailed in para (12) above which are in thepossession of defendant No. 43 and all other properties whatsoeverDthat may be found to belong to the Mathruka of the late NawabKhurshid Jah be divided by metes and bounds and plaintiff begiven her 29/2944th share therein; (b) appointing, a Commissioner-Receiver to take charge of thesaid properties and divide the same between persons who areElegitimately entitled thereto;

(c) directing the Defendants Nos 1 to 43 to account for all mesneprofits and income accruing in respect of the said Mathrukaproperties upto the date of suit and there after during the pendenceof this suit; and F

(d) restraining the defendants from changing, alienating onencumbering any of the aforesaid properties in any manner duringthe pendency of this suit. If any properties of the Mathruka estatehave been alienated by any of the defendants the same be debitedto their share or ordered to be recovered from them if it is inGexcess of their share.

The plaintiff further prays that appropriate orders be passed forpayment plaintiff costs out of the Mathruka Estate.

And such further and other reliefs be granted and orders be passedwhich this Hon’ble court may deem fit.”

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33. For reasons which are not immediately decipherable, the saidsuit filed in the City Civil Court, Hyderabad was withdrawn by the HighCourt and transferred to itself for being tried and disposed of. Thiswithdrawal and transfer could have happened (only a presumption) eitherin terms of Clause 13 of the Letters Patent or in terms of Section 24(1)(b)(i)of the Code of Civil Procedure, 1908[1]. It must be remembered that untilthe High Court was renamed as the High Court of Andhra Pradesh inNovember, 1956 under the States Reorganisation Act, 1956, the High Courtwas the High Court of Hyderabad. The suit as it was originally filed wasin the year 1955-56, but the withdrawal and transfer took place in the year1958 and the suit was re-numbered as CS No.14 of 1958.

34. Since the genesis of the present dispute should be traced tothe plaint in CS No.14 of 1958, it is necessary to extract the main part ofthe plaint as such. Therefore, paragraphs 6 to 17 of the plaint read asfollows:- “6.After the death of Nawab Khurshid Jah in 1320-H, neither thePaigah Estate nor the Mathruka was permitted to be dividedthrough claims were advanced by his two sons and later by theirchildren. The reason for not permitting the division of the PaigahEstate or the Mathruka of Nawab Khurshid Jahappears to bethat His Exalted Highness the Nizam was against further partitionand wanted to preserve this ancient family as a whole and preserveits integrity, and grandeur. This is evident from the two Farmansof His Exalted Highness dated 11[th]Rajab 1337H, Correspondingto 8[th]Khurdad 1328 Fasli and 5[th]Shaban 1347 H, corresponding to15[th]Isfandar 1338 Fasli (17. 1.1929). Copies of the said twoFarmans are herewith filed and marked II and III.

7. In connection with the claims of various heirs His ExaltedHighness the Nizam appointed as many as three RoyalCommissions namely:

(1) The Egerton Committee,

(2) Glancey Commission, and

(3) Railey Commission

After considering the Reports of these three Commissions,His Exalted Highness issued the last mentioned Farman dated 1 Hereinafter referred to as”CPC”

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17-1-1929, (marked III supra) with a view to preserve the PaigahEstate and perpetuate the Paigah Family.

8. In para 2 of the above-said Farman dated 17-1-1929 (markedIII) His Exalted Highness the Nizam directed as follows:- “Whatever property has hitherto been acquired or articlepurchased or building constructed out of the income of the Paigahswill be considered the property of the Paigahs and not that of anyindividual, and it will not be liable to division as an inheritance(Mathruka)”

9. H.E.H the Nizam further directed as per the said Farman inOrder III Para 9 thereof as follows:- “Precious Stones, Jewellery, and rare articles which in accordancewith the principles laid down in the above (Farman para 2) are theproperty of the Paigahs from olden times, or have been purchasedwith money belonging to the Paigahs, will remain with the PaigahAmir in Trust as heirlooms of Paigah family. The Paigah Amirshall not have the right to sell, pledge, or give them to any person.They can however be lent for temporary use to members of thePaigah family, after obtaining my sanction from time to time,provided the Amir holds himself responsible for their safe andcareful use.”

10. In order III, Para (2) of the Farman (marked III supra) H.E.H.the Nizam referred to another and third class of property anddirected as follows:- “If there is any property left as intestate property (Mathruka) inany Paigah the distribution thereof shall also be settled by thesame Committee”

The Committee referred to in the portion of the Farmanextracted above is Nawab Mirza Yar Jung Committee whose reportwas submitted on 9[th ]April 1929. H.E.H. the Nizam accepted thesaid report and issued a Farman accordingly.In the said report ofMirza Yar Jung Committee, a definite finding was given that itwas not proved by claimants that Nawab Khurshid Jah left anyproperty which was not acquired or purchased out of the Paigahincome within the meaning of para (2) of the preliminary portionof the Farman.

11. By reason of the finding of the Mirza Yar Jung Committeenegativing the existence of any Mathruka acquired or purchasedfrom sources other than paigah income there were only twocategories of Mathruka property of Nawab Khurshid Jah viz, (a) properties or articles purchased or buildings constructed outof the income of the Paigah, (b) Precious stones, Jewellery and rare articles purchased withmoney belonging to the Paigah and held in trust by Paigah Amiras heirlooms of Paigah family.

12. As per Firman dated 5[th] Shaban 1347 H (17-1-1929-A.D),H.E.H. the Nizam prevented the distribution of the two classes ofMathurka properties aforesaid and lists of properties belonging tocategory (a) including all accreations and additions thereto, so faras plaintiff is aware are set out in the schedule herewith filed andmarked IV and IV(a) are of the approximate value ofO.S.Rs.652058-2-0 and they are in the possession of personsreferred to in the said schedule. The plaintiff is not aware of theextent and value of precious stones, jewellery and rare articlesreferred to in category (b) mentioned in para 11 above. The lastmentioned properties which ought to have been in the possessionof the Defendant No.1 as Amir Paigah were left for safe-custodyin the Government Treasury during the days of police action andsubsequently passed into the custody of Jagir Administrator theDefendant No. 43 herein. The plaintiff tentatively values the saidproperties mentioned in Category (b) aforesaid at O.S. Rupeesone lakh and claims her legitimate share therein after the full extentand value thereof are ascertained.

13. The Jagirs in Hyderabad State including Paigah having beenabolished by Jagir Abolition Regulation No. 69 of 1358 F, witheffect from 15[th]August 1949 the Said Firmans precluding thepartition of the aforesaid two categories of Mathruka properties,ceased to be operative and plaintiff became entitled to claim herlegitimate share of Mathurka Estate of the late Nawab Khurshid.Jah viz, her 29/2944[th] share which she tentatively values at theaggregate sum of O.S. Rs 7408-1-1 as detailed in the ScheduleIV and IV(a) para 12 referred to above of the aggregate tentativevalue of O.S. Rs. 752058-20.

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14. The cause of action for this suit arose at Hyderabad-Dn, On15[th]August 1949 when the Jagir Abolition Regulation came intoforce and the Firmans of H.E.H. the Nizam preventing the partitionof the suit properties ceased to be operative.The suit is in time, inany event, as the bulk of the properties in Schedule IV And IV(a)are immovable properties and the other properties in category (b)And referred to in para 13 were held by the Defendant No. 1 theAmir Paigah In trust and are now with Defendant No.43. Furtherthe 14[th]and 15[th]August 1955 were holidays on account of Sundayand Independence Day.

15. The plaintiff values this suit claim tentatively for purpose ofcourt-fees and jurisdiction at O.S.Rs. 7405-1-1, the same beingthe value of her share of the properties detailed in Schedule IVand IV(a), para 13 above and plaintiff pays a Court-fee of O.SRs. 562-7-0, and undertakes to pay such additional court-fee, ifany, after the divisible properties are ascertained and theircorrectvalues are fixed.

16. The plaintiff submits that the Schedule IV and the values statedtherein are by no means exhaustive or complete and similarly thevalues of precious stones and jewellery are equally approximateand tentative. It is possible that there may be other Mathrukaproperties also which are divisible between the parties. The plaintiffclaims her legitimate share of 29/2944[th] in whatever propertiesthat may be found to belong to the Mathruka of the late NawabKhurshid Jah and undertakes to pay the appropriate court-fee.

17. This Hon’ble court has the jurisdiction to try this Suit as thebulk of the immovable properties the subject matter of this partitionare situated in Hyderabad city and all the Defendants exceptDefendant No.36 reside in Hyderabad City.”

35. Interestingly, the plaint was amended first in the year 1957and paragraph 17A was inserted, more by way of response to the writtenstatement filed by defendant No.1 in respect of the properties mentionedat Serial Nos.29 and 30 of Plaint Schedule IV. Subsequently, the plaintwas amended twice in the year 1958 so as to insert paragraphs 17B,17C and 17D. These amendments resulted in the impleadment of someadditional defendants in the suit, including the State of Andhra Pradeshand the State of Mysore as defendant Nos. 53 and 55 respectively.

36. These paragraphs 17A, 17B, 17C and 17D of the plaint areextracted as follows:- “17A. According to para 7 of the written statement the defendantNo.1 has asserted that the Matruka properties mentioned in thelist enclosed with plaint at serial No.29 and 30 of schedule No.4,Zamutanpur Ramdhan Chowdry and Najeeb Bagh are in thepossession of Misbahuddin Khan and Ghousuddin Khan, by Virtueof right. This assertion has been made by the defendant No.1, theLegal and sharia guardian of both the said minors. This plaintiffdoes not Admit the contention of ownership of both the abovesaid sons of the Defendant No.1. The names of both of themhave been included among the array of defendants. Thus theplaintiff is entitled to sue and both the above said sons of thedefendant No.1 are liable to answer (the para 17A is added asper order dated 20.9.57)

17B. That the plaintiff has come to know through the writtenstatement of the defendant No.1 that the properties mentioned initems Nos.37 & 40 of schedule 4 and Nos 13 to 15 of the schedule4A are in the possession of the state of A.P. As these form thesuit properties the state of A.P. is a proper and necessary party tothe suit. This hon’ble court has accorded permission to impleadthe said state as defendant, so it is impleaded as a party by way ofamendment. This defendant had no right whatsoever to possessthe said properties, as the said defendant is liable to pay mesneprofit of the same also and the plaintiff is entitled to them. Hencethe plaintiff is entitled to sue and the defendant is liable to besued. Notice u/s 80 CPC has been issued to the said defendants.Having received the same the defendant has not given any replythereof in spite of the fact that two months have elapsed since thereceipt thereof.

17C. That as per written statement of the defendant No.1 BalRaj, the defendant No.54 is in possession of the Bagh HussainShah Vali, which is a suit property, so, he is impleaded as a partyand he is liable to pay mesne property also. Amended as per orderdated 25.1.58.

17D. that the plaintiff has come to know through the writtenstatement of the defendant no.1, that the properties in items No.35 & 36 of the schedule IV item No.16 of schedule IVA

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A(immovable) are in the possession of the state of Mysore. Asthese are a part of the suit properties, the state of Mysore is aproper and necessary party, to the suit, this Hon’ble court hasaccorded permission to implead the state as defendant. So it isimpleaded as a party by way of amendment. This defendant hasno right whatsoever to possess the said properties, so the saidBdefendant is liable to pay mesne profits also to plaintiff accordingto a share, she is entitled to. Hence the plaintiff is entitled to suethe said defendant and the defendant is liable to be sued. Noticeu/s 80 cpc had been issued to the said defendant of two monthstime passed after the receipt thereof, but no convincing reply wasCgiven to the plaintiff. (amended as per orders dated 4.10.58).”

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37. In the year 1961, some of the parties to the suit entered into acompromise. The parties who entered into the said compromise wereplaintiff Nos. 1 and 2 and defendant Nos.1, 5, 6, 7, 9, 11-14, 16-34, 35,36, 37, 40-42, 44, 45, 46, 48, 49-52, 56-62, 90-94, 97, 99 and 100. It mustDbe recorded at this stage that there was only one plaintiff at the beginningnamely Dildar-Un-Nissa Begum. But subsequently, defendant No.38got transposed as plaintiff No.2 and that is how there were two plaintiffs.

38. The parties who entered into a compromise filed an applicationin Application No.264 of 1961 under Order XXIII Rule 3 CPC, forErecording the compromise and passing a preliminary decree. The reliefssought in Application No.264 of 1961 make an interesting reading andhence they are extracted as follows:- “Application under Order 23, rule 3, Civil Procedure Code,praying that in the circumstances stated in the memorandum ofFcompromised filed herewith the High Court may be pleased

1) to pass a preliminary decree in terms of the compromise afterdeciding the contentions questions mentioned in paras 18 and 19of the compromise and the rights of those who have not joint thecompromise.

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iii) to pass a final decree in favour of defendants Nos. 1, 51, 52and 42 to the extent of properties given to their exclusive sharesas mentioned in paras 4, 7, 9 and;

IV) to appoint Shri Hafeez Ahmed Khan Retired Sessions Judge,Advocate, residing at Fateh Sultan Lane, Nampally, HyderabadHas Receiver-cum-Commissioner with the powers set out in the memo of compromise and to proceed with the case against theother defendants”

39. It appears that the defendant Nos. 1, 2, 5 to 18, 21 to 29, 33,34, 36 to 43, 47, 49 to 55, 77, 78 and 95 to 97 filed their written statements.The other defendants did not file any written statement. Defendant Nos.3, 4, 19, 29 to 32, 35 and 48 were set ex parte.

40. On the basis of the pleadings, the Court framed as many as 50issues. Some of the issues also had sub issues.

41. But after trial, the Court struck off issue Nos.14(e) and 21.

42. During trial, six witnesses were examined on behalf of theplaintiff. Eleven witnesses were examined on behalf of defendant No.1.One witness was examined on behalf of each of the defendant Nos.2, 8,10, 15, 17, 41, 43, 47, 56 to 62, 86 and 87 and 88. Two witnesses wereexamined on behalf of defendant Nos.12 and 13, defendant Nos. 48 and49 and defendant No.97. Six witnesses were examined on behalf ofdefendant No.39 and four on behalf of defendant No.53.

43. On the side of the plaintiff, 30 documents were marked asExhibits P.1 to P.30. Defendant No.1 produced 52 documents whichwere marked as Exhibits D.1(1) to D.1(52). Other defendants also markedsome documents.

44. Eventually, the learned Judge of the High Court sitting as aTrial Judge, passed a judgment and decree on 28.06.1963, both in thesuit and in the application under Order XXIII Rule 3 CPC. The operativepart of the judgment which contained the decree intended to be passed,comprised of two portions, one relating to the defendants who were notparties to the compromise and the other relating to those who wereparties to the compromise. The operative portion of the judgment isextracted as follows:

“The result of the above discussion is that the suit of the plaintiffsin relation to the defendants other than the parties to thecompromise shall be decreed in the following terms:-

(1) That the properties.

(a) Mentioned in plaint schedule IV as also detailed in list‘A’ forming annexure to Application No.37/59, exceptingitems 26, 29, 30, 34, 35 and 36 and houses bearing municipalNos. 28 and 29 in item No.22 of the Schedule; A

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(b) Khurshid Bagh at Lallaguda;

(c) The oil paintings, chandeliers and furniture isBaradari.(Item No.1 in schedule IV) and Ligampalli Garden(Item No.27) referred to in the first part of Schedule IV-B,the number and the value of which shall be determined inthe final decree proceedings; (d) The fire arms and weapons and their sale proceeds,referred to in part-II of Schedule IV-b, the number andvalue of which shall be decided in the final decreeproceedings as per the decision under issues 16 and 18.

(e) The articles in Part III, sub-item I of schedule IV-b, asdetailed in Exe.P-10 and P-12 taken over by the JagirAdministrator and deposited in the Bank.

(f) The gold coins referred to in sub-item II of ScheduleIV-b which are taken under Ex.P-9 by the JagirAdministrator; and (g) The jewellery as contained in Ex.P-8 and inventoryprepared by the Receiver are properties coming from Khurshid Jah’s time, coveredby para-2 of the Firman Ex.P-30 dated 5[th] Shabban, 1347H. and Order 3 Clause 9 of the same Firman and are liableto be partitioned among the surviving legal heirs of lateNawab Khurshid Jah;

(2) That properties items 37 and 40 in Schedule IV will also beavailable for partition only in case they happen to be released bythe Government;

(3) That plaintiff No.1 and defendants 1 (since dead) to 35, 44,to 49, 51, 52, 56 to 62, 90, 94, 98, 100 and 102 to 112 are the heirsthrough Zafar Jung in the line of succession of Khurshid Jah, andplaintiff No.2 and defendants 36, 37, 39 to 42, 50, 97, 99 and 113to 118 are the heirs through Imam Jung, in the line of successionof Khurshid Jah, as detailed in Annexure II to the judgment;

(4) That in the aforesaid properties as also those included inAnnexure IV to the Judgment, defendant No.1 being dead, hislegal representatives 51, 52 and 102 to 112 are entitled to a 1/3[rd]

share; and in the remaining 2/3rds, the surviving legal heirs in theline of Imam Jung are entitled to one half and the surviving legalheirs in the line of Zafar Jung, excluding defendants 51, 52, 102 to112 to the other half, and their individual shares are as detailed inAnnexure III to this judgment.

(5) That Mr. P. Ram Shah, Advocate of this Court, is appointedCommissioner and he shall partition the same subject to thedirections contained in this judgment and to such further directionsas may be given from time to time by this Court;

(6) That the Commissioner shall take accounts from the heirsof defendant No.1 and submit his report on the following matters; (a) The income and savings from the suit property duringthe period defendant No.1 was in management as AmirPaigah, from 1950 upto the date of his death 26-11-1961,as per the decision on issue No.37; (b) The sale proceeds of items 51 to 53 of Schedule IVrealized by defendant No.1;

(c) The excess expenditure alleged to have been met bydefendant No.1 to the extent of one lakh of rupees referredto in the judgment in connection with issue No.40; (d) Expenses incurred by defendant No.1 for repairs,extensions and improvements in Bagh Lingampally (itemNo.27) as per the decision on issue No.22;

(7) The Commissioner while partitioning the property shall alsotake into account the amounts from defendants 9, 10, 11, 14, 15,16, 18, 19, 21, 22, 24, 25, 30, 31, 32, 40, 42, 48, 49, 62, and 93 asper Annexure V towards damages caused by them to the suitproperties, in determining the extent of their share;

(8) The defendants 86-88 being alienees in relation to shopsbearing Municipal Nos.III C-113 to 120, which is a portion of itemNo.45; house bearing municipal No.20-3-842 situate at Shah Gunjcomprising 420 sq.yds; house bearing No.2-2-722 and tinshedbearing No.2-2—723 situate at Shibli Gunj (both known as RathKhana) ; and Baggi Khana, bearing Municipal No.2-3-184 situateat Shibli Gunj, the equities of these alienees may be worked out sofar as possible by setting apart the alienated properties to the A

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share of the alienor, defendant No.10, if that can be done withoutinjustice to the other sharers.

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The remuneration of the Commissioner is tentatively fixed atRs.600/- per month.

The plaintiffs will be entitled to the costs from out of the assets.

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Court fee shall be collected as and when the properties arevalued and partition is being effected.

So far as the parties to the compromise are concerned, a decreeshall follow in terms of the compromise, excluding such terms asCrelate to appointment of and directions to Receiver andCommissioner and also terms regarding the properties which havebeen held to be the properties of defendants 2 and 39, viz., itemNo.26 and house Nos. 28 and 29 in item No.22 in Schedule IV;and so far as item No.34 of Schedule IV is concerned, that propertyas also the sale proceeds connected thereto shall be available forDpartition amongst the parties to the compromise, only after settingapart the due shares of defendants 2 to 4, 10, 47, 94 and 98 as theheirs of Zafar Jung, which work out at double the shares enteredin Annexure III.

While allotting the shares to the parties to the compromise,equities of alienees, defendants 119, 120 and 121 as also ofdefendant No.77 may be worked out as far as possible by settingapart the alienated properties to the share of the respective alienorsas directed in the judgment under issues 41 and 49.

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The Commissioner appointed under para(5) of this order shallpartition the property and carry out the terms of the compromisesubject to the directions contained in the judgment and such otherdirections as may be given from time to time.

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45. There were five annexures to the judgment. Annexure-Icontained the list of heirs in the line of succession of Khurshid Jah andthe shares to which they were entitled. Annexure-II contained the list ofsurviving legal heirs in the line of succession of Khurshid Jah and theirrespective heirs. Annexure-III indicated the amount of each share ofHthe respective sharers. Annexure-IV contained the list of immovable properties which were held to be Mathruka of late Khurshid Jah. Infact, Annexure IV to the judgment was actually the reproduction ofPlaint Schedule IV except those not decreed. Annexure-V containedthe list of properties damaged and the extent of damage caused by therespective parties.

46. It must be mentioned here that the suit CSNo.14 of 1958 onthe file of the present High Court for the State of Telangana is not merelya strange and curious case but is one which continues to baffle both thelegal and the jural fraternities, for more reasons than one, both right andwrong. One of the curious aspects of this case was the description ofthe immovable properties listed in Plaint Schedule IV. Though a copy ofthe original plaint has been filed before us as part of the paper books, itdoes not contain the Schedules. However, Annexure-IV to the judgmentdated 28.06.1963 in support of the preliminary decree, contains areproduction of Plaint Schedules IV, IV (a) and the items described inLists A, A-2, A-3 and A-4 of Application No. 37/59. The same will providethe reader a fair opportunity to understand as to how innumerable itemsof immovable properties were sought to be described in the PlaintSchedules. Hence, we are constrained to reproduce the same as follows:

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310SUPREME COURT REPORTS

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47. After the preliminary decree dated 28.06.1963, some of theparties to the suit transferred their undivided shares in the suit scheduledH

properties in favour of (i) the Nizam and (ii) another person by nameNawab Khasim Nawaz Jung. These two persons were impleaded asdefendant Nos. 156 and 157 respectively. It may be recalled at thisstage that when the suit was originally filed, there were only 43defendants. At the time when arguments were advanced in the suit, thenumber of defendants went up to 119 and when the preliminary decreewas passed, the number of defendants became 135. It increased furtherafter the decree and the Nizam and Nawab Khasim Nawaz Jung cameto be impleaded as defendant Nos.156 and 157, after they purchasedthe undivided shares to the extent of 80% from the decree-holders.

48. After three years of the preliminary decree, the AdvocateCommissioner-cum-Receiver filed an application in Application No. 268of 1966 to take over possession of the lands, including the land in SurveyNo. 172 at Hydernagar village, which was part of Item No.38 of PlaintSchedule IV. No counter was filed by the respondents. Though the PlaintSchedule and the preliminary decree did not mention specific Surveynumber(s) in Hydernagar, the Receiver claimed in his report that hestudied the Revenue Records/Pahani Patriks/Khasra Pahanis andfound that Survey No. 145 (220.10 acres), Survey No. 163 (175.06 acres),and Survey No. 172 (196.20 acres), were all situated at Hydernagar,and were part of Item No.38 Schedule IV of the plaint.

49. In the meantime, HEH the Nizam (defendant No. 156) vide aregistered sale deed dated 23.02.1967, sold his undivided half share infavour of F.E. Dinshaw Ltd., which later became M/s. Cyrus InvestmentsPvt. Ltd.[2] This transfer was recognized, and consequently, Cyrus wasimpleaded as defendant No. 206 in the suit CS No.14 of 1958.

50. The High Court vide order dated 24.03.1967, passed inApplication No. 268 of 1966, directed the District Collector, Hyderabad(who was in possession of the properties on behalf of the StateGovernment) to deliver possession of the properties to the Receiver ontwo grounds namely: (i) that the State Government was a party to thepreliminary decree; and (ii) that the property in question was declaredto be “Mathruka” property.

51. Thereafter, the Receiver vide Application No. 73 of 1970 inCS No. 14 of 1958, submitted a scheme of partition with respect to thesuit schedule movable and urban immovable properties. The High Court 2 For short, “Cyrus”

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Avide order dated 29.01.1971 accepted the scheme, and directed theReceiver to also submit a scheme with regard to the suit scheduleagricultural lands.

52. The Commissioner-cum-Receiver then filed a curiousapplication in Application No. 139 of 1971 in CS No. 14 of 1958 seekingBorders as to whether he should prepare a scheme of partition with regardto claims only (but not actual physical land).This was on the ground thatthe Government as well as third party-protected tenants were in actualpossession of the suit schedule agricultural lands. An explanatory notewas attached to the application stating that the Collector, who was orderedCto hand over the possession of Hydernagar lands, was raising an objectionthat it is Government land.

53. By order dated 16.09.1972passed in Application No.139 of1971, the High Court allowed the Receiver to partition only the claims interms of value of the lands as the lands were not in possession of theshareholders.D

54. Accordingly, the Receiver submitted a scheme of partition on03.12.1972, distributing only the claims with regard to survey numbersincluding Survey Nos.145, 163 and 172 of Hydernagar.

55. The Receiver then filed Application No. 19 of 1973 in CS No.E14 of 1958,impleading only the State of Andhra Pradesh as a party, prayingfor a direction to the Collector to hand over the possession of SurveyNos.145, 163 and 172 of Hydernagar village. None of the parties whowere likely to be dispossessed were made parties to this application.

56. The High Court allowed Application No. 19 of 1973, videForder dated 05.07.1974 directing the Government to give symbolicpossession of lands measuring acres 220 guntas 18 in SurveyNo. 145and measuring acres 175 guntas 6 in Survey No.163 to the Receiver.Insofar as the other lands are concerned, the High Court recorded thatthe Government is not in a position even to give symbolic delivery andGhence the Receiver was directed to take steps available in law for takingpossession from the actual occupants of the lands including the land inSurveyNo. 172, Hydernagar village.

57. Since the parties were unable to agree upon allotment of shareof the lands, the High Courtvide order dated 31.01.1976, passed inHApplication No. 139 of 1971, referred the matter to the District Collector under Section 54 of the CPC for division and allotment to the sharers.TheDistrict Collector directed the Revenue Divisional Officer[3], Chevella topartition the schedule lands. The RDO, Chevella divided and allotted thelands in Survey Nos.163 and 145 of Hydernagar village to the sharers indifferent extents, but no such exercise was undertaken in respectofSurveyNo. 172.

58. Insofar as the land in survey No.172 was concerned, it wasfound that Faisal Patti for 1978-79 had been issued by the MandalRevenue Officer, Balangar, Ranga Reddy District mentioning 25 sub-divisions in Survey No. 172 made during the tenure of the Paigah. Thenames of 24 persons [including Boddu Veeraswamy, Ruquia Begum,Waris Ali and Ghani Shareef] who were allegedly given Pattas prior to1948 by the Nizam/his Revenue Secretariat were also mentioned in thesaid Faisal Patti.

59. The Receiver therefore filed a report, on which the Courtpassed an order dated 12.06.1981 in Application No. 139 of 1971. TheCourt noted that the Receiver’s report was with respect to partition ofall other survey numbers other than Survey No. 80 of Hafizpet andSurvey No.172 of Hydernagar. The Court directed the copy of thereport to be published.

60. Upon coming to know of the steps so taken by the Receiver,the State Government filed an application in Application No. 44 of 1982in CS No. 14 of 1958 seeking amendment of the preliminary decree todelete Item Nos.35 to 38 and 40 of Schedule IV, contending that thedecree was not in consonance with the judgment. This application wasdismissed by the High Court vide order dated 18.12.1982.

61. At this stage, Nawab Khasim Nawaz Jung (defendantNo.157) and Cyrus (Defendant No. 206) filed several applicationsbefore the High Court in CS No. 14 of 1958, including Application No.266 of 1983. The relief sought in Application No. 266 of 1983 was “toissue an order for handing over possession of Survey No. 80 ofHafeezpet village, measuring 48,477.5 cents (about 484 acres)andSurvey No.172 of Hydernagar measuring 19,650 cents (about196.5 acres) to defendant Nos. 157 and 206 and for directing theReceiver-cum-Commissioner to execute the warrant of possession 3 For short, “RDO”

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Athrough City Civil Court and put defendants 157 and 206 inpossession of Survey No. 80 of Hafeezpet and Survey No. 172 ofHydernagar respectively”. The sole respondent to the application,namely the Receiver reported “no objection.” None of the persons inpossession of the lands in Survey No. 172 through Pattas wereimpleaded as parties to the Application No. 266 of 1983. The HighBCourt vide orderdated 20.01.1984 allowed the application, directingthe Receiver-cum-Commissioner to hand over possession of the landin Survey No.80 of Hafeezpet and Survey No. 172 of Hydernagar toKhasim Nawaz Jung (defendant No.157) and Cyrus (defendant No.206) by executing a warrant of possession through the City Civil CourtCand putting Khasim Nawaz Jung (defendant No.157) and Cyrus(defendant No. 206) in possession. It is stated by the parties that thoughHigh Court issued warrant of possession to the Receiver, the samecould not be executed (probably because the lands were in possessionof third parties).

D62. Eventually, the High Court, vide order dated 16.11.1984 passedin Application No.276 of 1984 in CS No. 14 of 1958, discharged theReceiver on the ground that he had not submitted a scheme for distributiondespite a specific earlier order dated 27.10.1984 to this effect and directedthe Receiver to hand over the records to the Deputy Registrar of theHigh Court by 01.12.1984.E

63. Pursuant to the said order, the Receiver handed over the chargeof his office to the Deputy Registrar of the High Court, thereby endingthe role of the Receiver in CS No.14 of 1958 with regard to land inSurvey No. 172. The net result is that the order and the warrant dated20.01.1984 stood unimplemented or unexecuted by the Receiver.F

64. Thereafter, Cyrus (defendant No.206) and Nawab KhasimNawaz Jung (defendant No.157) executed a Deed of Assignment on29.11.1995 in favour of M/s Goldstone Exports Pvt. Ltd.[4] to the extentof 98.10 acres in Survey No.172, Hydernagar. On the basis of thisassignment, Goldstone filed four Applications namely, (i) ApplicationGNo. 992 of 1995 for recognition of the assignment of the rights to landof the extent of acres 98.10 guntas in Survey No. 172 at Hydernagarvillage; (ii) Application No. 993 of 1995 for impleading them as partiesto the suit; (iii) Application No.994 of 1995 for modification of the H4 For short, “Goldstone”

order passed on 20.01.1984 in Application No. 266 of 1983 bysubstituting the names of the petitioners and directing delivery ofpossession of the land of the extent of half share out of acres 196.20guntas in Survey No.172, Hydernagar; and (iv) Application No. 995 of1995 for a direction to the revenue authorities to enter their names inthe concerned records.

65. In the aforesaid applications, only the Assignors i.e., KhasimNawaz Jung (defendant No.157) and Cyrus (defendant No.206) wereimpleaded as parties. Third parties who were in possession as per theFaisal Patti of 1978-79 were not impleaded as respondents in theseapplications.

66. These applications, I.A. Nos.992, 993, 994 and 995 of 1995were allowed unopposed, by the High Court by order dated 28.12.1995.

67. Thereafter, Goldstone and others filed an execution petition inE.P. Nos.3 of 1996 under Order XXI Rule 35 CPC before the DistrictCourt, Ranga Reddy District seeking delivery of Item No. 38 of PlaintSchedule IV (survey No. 172 of Hydernagar) pursuant to the preliminarydecree dated 26.08.1963 in CS No.14 of 1958. The Assignors namely,Khasim Nawaz Jung (defendant No.157) and Cyrus (defendant No.206) alone were arrayed as respondents- judgment-debtors in the saidexecution petition. Third parties in actual physical possession were notimpleaded.

68. The District Court, Ranga Reddy District passed an orderdated 29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of that Courtto deliver land of the extent of 98.10 acres in Survey No. 172 to thepetitioners in E.P. No. 3 of 1996, in accordance with the assignmentrecognised by the High Court and in pursuance of the order dated28.12.1995 passed in Application No. 994 of 1995.The Bailiff of theCourt then submitted a report dated 19.04.1996 stating that there wasno resistance from the judgment-debtors and that he had delivered thepossession of the land to Goldstone.

69. Upon coming to know of the same, several persons who werein possession of portions of the land in Survey no. 172, Hydernagar, filedseparate applications seeking various reliefs. They may be tabulated foreasy appreciation as follows:

A

B

C

D

E

F

G

H

ABC

70. The District Court, Ranga Reddy District refused even toDentertain the above applications on the ground that it cannot go beyondthe mandate of the High Court issued in Application No 994 of 1995.

71. Aggrieved by the refusal of the District Court even to entertaintheir applications, a society by name Sri Sathya Sai Cooperative HousingSociety Ltd. filed a revision petition in C.R.P. No. 4921 of 1996 beforeEthe High Court. Some members of another society by name Set-winEmployees Housing Cooperative Society and 33 members of Sri SatyaSai Co-operative Housing Society Ltd. filed OSA Nos.10, 11 and 20 of 1996 questioning the High Court’sorder dated 28.12.1995 in Application No. 994 of 1995; and F

OSA No.19 of 1996 against the High Court’s orders inanother Application No. 963 of 1995 in C.S.No.14 of 1958pertaining to another E.P. No.4 of 1996.

72. A Division Bench of the High Court allowed those originalside appeals by order dated 06.11.1996 and:G

Directed the District Court, Ranga Reddy Dist. to entertainand dispose of the claim petitions on merits; Directed the restoration of possession of the land to theclaim petitioners and to hear their objections before passingany orders in the E.P(s).H

73. A similar order was passed in C.R.P. No.4921 of 1996 directingthe District Court, Ranga Reddy District to register and dispose of theclaim petitions on merits.

74. Challenging the said orders, Goldstone Exports and othersfiled, S.L.P. (C) Nos.8787-8789 of 1997 challenging the HighCourt’s order dated 06.11.1996 in OSA Nos.11 and 20 of1996; and S.L.P. (C) No. 23706 of 1996 against the orders in OSANo. 10 of 1996 (pertaining to Application No. 994 of 1995and E.P. No. 3 of 1996).

75. By order dated 14.08.1997, this Court allowed all those SLPsand remanded OSA Nos.10, 11 and 20 of 1996 back to the High Court.This was the first order of remand.

76. In the interregnum, Goldstone and 15 others filed ApplicationNo. 517 of 1998 in CSNo.14 of 1958 praying for passing a final decree,impleading the LRs of Nawab Khasim Nawaz Jung (defendant No.157) with regard to 98.10 acres in SurveyNo.I72 of Hydernagar villageon the ground that they have been delivered possession of the propertyby the District Judge, Ranga Reddy District on 17.04.1996 pursuant tothe direction of the High Court dated 28.12.1995 in Application No.994of 1995.This application was allowed by the High Court by orderdated24.04.1998 and a final decree came to be passed in favour ofGoldstone, recording that possession of the property measuring acres98.10 guntas in Survey No. 172, Hydernagar village (Item No.38 ofSchedule-IV)had been delivered to them by the Bailiff of the Court ofthe District Judge, Ranga Reddy District on 17.04.1996 in E.P. No. 3 of1996. Perhaps this must be the first order of its kind, in the historyof a partition suit, where a final decree came to be passed after theexecution of the preliminary decree and taking delivery of possessionof the property.

77. Within a few months of the passing of the final decree, theoriginal side appeals remanded back from this Court were taken by theDivision Bench of the High Court and they were dismissed by orderdated 10.11.1998. It was held therein that the claim petitions were notmaintainable and that the claimants therein were claiming rights throughthe parties to the decree in CS No.14 of 1958. In effect, it was held thatthe claims of the obstructionists are through some of the judgment-debtors A

B

C

D

EF

GH

Aand that therefore applications under Rule 97 or 99 of Order XXI arenot maintainable, at the instance of the judgment-debtors, or personsclaiming through them.

78. The order of the High Court dated 10.11.1998 became thesubject matter of challenge before this Court in Civil Appeal Nos.7983Bof 2001 with Civil Appeal Nos.7984-85 & 7986-88 of 2001.These appealswere allowed by this Court by a decision dated 23.11.2001, reported inNSS Naryana Sarma vs. M/s Goldstone Exports Private Ltd.[5] ThisCourt took the view that the claim petitions were very much maintainable,as the claim petitioners were claiming rights independently under theprovisions of the Jagir Abolition Regulations. After so holding, this CourtCremanded the matter back to the High Court for a fresh consideration ofthe claim petitions. This Court directed that the petitions filed by theappellants before this Court (in that case) had to be placed before aSingle Judge for consideration.

79. Accordingly, all the applications including Application No.994Dof 1995 were placed before L. Narasimha Reddy, J., (as he then was).The learned Judge framed as many as 11 issues and 2 additional issuesas arising for consideration in all those applications.

80. Eventually, the learned Judge disposed of all the applicationsby an order dated 26.10.2004, whose operative portion, extractedEhereunder, is self-explanatory:

“68. For the foregoing reasons;

(a) Application No.994 of 1995 is dismissed.

(b) Application Nos.585 and 708 of 2002, and 1318 to 1320Fof 2003 are allowed.

(c) The petitioners pleaded throughout that the land inquestion was vacant. It has already been found that the filingof E.P. in the Court of District Judge, Ranga Reddy Districtand the various steps taken therein are contrary to law. Hence,Gthe alleged delivery of possession in favour of the petitioners,is held to be symbolic.

(d) The respondents are found to be holding title andpossession of the lands covered by the respective sale deeds H5 (2002) 1 SCC662

in their favour. Inasmuch as the delivery of possession wasonly symbolic, that too as regards vacant land, it shall beopen to them to remain in possession of the said land. Thepetitioners do not have ony right. title and interest in respectof the land. which constituted the subject matter of E.P.No.3of 1996.

(e) In case there is any resistance from the petitioners as tothe right of the respondents to remain in possession of theland, the District Court, Ranga Reddy shall direct re-deliveryof possession of such land to the respondents, if an applicationis filed for this purpose.

(f) It shall be open to the petitioners to take such steps as areopen to them in law, in relation to the assignment of rights intheir favour.”

81. Aggrieved by the said order of the learned Single Judge dated26.10.2004, the assignees of decrees filed a batch of appeals in OSANos. 52 to 59 of 2004. By a common order on 23.06.2006 the DivisionBench of the High Court allowed the appeals holding that the claimpetitioners failed to establish their independent right, title and interestmuch less possession of whatsoever nature.

82. Against the order dated 23.06.2006, the claim petitioners filedappeals in C.A. Nos. 3327-3331 of 2014 before this Court. When theappeals came up for hearing before this Court, it was noticed by thisCourt that one of the Judges of the Division Bench (JusticeB.Seshasayana Reddy) which passed the order impugned therein, hadearlier passed an order, while he was a District Judge, Ranga ReddyDistrict in favor of the claim petitioners. Therefore, all the counselrepresenting various parties conceded before this Court that the commonjudgment of the Division Bench dated 23.6.2006 in the OSAs be setaside and the matter remanded back once again. Accordingly, this Courtallowed the appeals by order dated 05.03.2014 and set aside the orderof the Division Bench of the High Court dated 23.06.2006 and remandedthe OSAs back to the High Court.

83. After the order of remand, the original side appeals were listedfor hearing before a Division Bench of the High Court along with severalapplications. On 14.03.2018, the Division Bench of the High Court passedan order merely categorizing all pending appeals and applications arising A

B

C

D

E

F

G

H

Aout of CS No.14 of 1958 into 14 types and directing the parties to getready for arguments in all those appeals and applications from the nextdate of hearing.

84. Though it was not a decretal order, but was one for house-keeping so that the hearing of all appeals and applications could proceedBin a structured way, the said order was challenged by the legal heirs ofNawab Khasim Nawaz Jungand Goldstone/Trinity before this Court inS.L.P. (Civil) Diary No. 40990 of 2018. The grievance projected bythese persons against the order of the High Court dated 14.03.2018 wasthat by categorizing the appeals and applications for hearing, the HighCourt was likely to reopen even the appeals already disposed of.C

85. This Special Leave Petition was disposed of by this Court on16.11.2018 at the stage of admission itself, without ordering notice to therespondents. The order reads as follows:

“Delay condoned.

D

Mr. Gopal Shankarnarayan, learned counsel, submits thatthe High Court is likely to reopen even those second appeals,which had already been disposed of.

The apprehension of. is based on the following observationmade by the High court in the impugned order : - E

“All the writ petitions falling under category-XIII andXIV will be taken up for hearing from 10th April 2018 ona day- today basis on a specific understanding that thelearned Government Pleader will get ready to argue thewrit petitions from 10th April 2018 onwards. For theFpurpose of convenience, the cause list will be printed assuch without any modification, since the learned counselappearing on all sides today have had the benefit of thememo filed by the Receivers-cum Commissioners and it isup to them to come prepared with respect to the cases thatfall under these categories.”

G

It is made clear that the execution will pertain only to thosewrit petitions which have otherwise survived on account ofthe remand.

In view of the above, the Special Leave Petition is disposedof.”

H

86. Not satisfied with the above disposal, the above Special LeavePetition was brought up for hearing once again on 28.11.2018 upon beingmentioned for a clarification. On such mentioning, this Court passed anorder on 28.11.2018 to the following effect:

“The operative portion of the order dated 16.11.2018 ismodified to the following extent (with underlyingmodifications}

“It is made clear that the adjudication will pertain only tothose writ petitions and appeals {OSAs} which have otherwisesurvived on account of the remand,”

Rest of the order shall remain as it is.”

87. Thereafter, the Division Bench of the High Court took up allthe original side appeals and disposed of the same by a common judgmentdated 20.12.2019. The operative portion of the order of the DivisionBench reads as follows:

“414. In the result:

(a) OSA NOs. 54, 56, 57, 58 of 2004 are dismissed and thecommon order of the learned single Judge dt.26.10.2004 inclaim petitions Application No.585 of 2002, ApplicationNo.708 of 2002, Application No.1319 of 2003 and ApplicationNos. 1320 of 2003 filed under Or.21 Rule 97-101 CPC inE.P.3 of 1996, is affirmed; (b) It is declared that the claim petitioners/ respondents in theO.S.A.s have established their right, title and interest in theproperties claimed by them in the claim petitions/ ApplicationNo.585 of 2002, Application No.708 of 2002, ApplicationNo.1319 of 2003 and Application Nos. 1320 of 2003.

(c) We declare that appellants have failed to establish thatthe land in Hydernagar village (including Sy.No.172 therein)is Matruka property of Khursheed Jah Paigah, from whomthey were claiming under the preliminary decree; (d) We declare that the land in Hydernagar village was Jagirland, but prior to 1948, pattas were granted to cultivatingryots under the Khursheed Jah Paigah like Ruquia Begum,Waris Ali, Ghani Shareef, Boddu Veeraswamy and otherdeemed pattedars by the Revenue Secretariat of HEH the A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Nizam in 1947. So title to this land passed on to the saidcultivating ryots prior to 1948 itself and they validly conveyedtitle to the claim petitioners. This land therefore did not vestin the State Government after the Hyderabad Jagir AbolitionRegulation, 1358 Fasli came into operation.

(e) Though there is no remand of OSA No.59 of 2004 by theSupreme Court to this Court, the order dt.23.6.2006 in thesaid OSA is declared to be passed by a coram non Judiceand to be a nullity and consequently we hold that it is notbinding on any body including the claim petitioners inApplication No.585 of 2002, Application No.708 of 2002,Application No.1319 of2003 and Application No. 1320 of2003; we also hold that the entire order is void including allfindings/observations made in it including the finding thatclaim petitioners did not prove their title to lands in theiroccupation; (f) We declare that the preliminary decree dt.28.6.1963 in CSNo.14 of 1958 as regards the lands in Hydernagar village isobtained by practicing fraud both on the Court as well as onthe claim petitioners and other occupants of lands in the saidvillage and is declared void ab initio.

(g) We declare that the order dt.20.1.1984 in ApplicationNo.266/1983 and order dt.28.12.1995 in Application no.994/1995 passed by this Court are orders obtained by theapplicants therein by playing fraud both on the Court and onthe claim petitioners and also to be collusive in nature.Consequently they cannot be allowed to be executed againstthe claim petitioners and third parties.

(h) We declare that the order dt.24.4.1998 passing Final decreein Appln. No.517 of 1998 in CS No.14 of 1958 is null andvoid and it is further declared that there is no Final decreewith regard to the Ac.98- 10 gts in Sy.No.172 of Hydernagarvillage, Ranga Reddy District of Item 38 of Schedule IV.

(i) We declare that the order of the District Judge, RangaReddy dt.29.03.1996 in E.P.No.3 of 1996 in C.S.No.14 of1958 as well as the bailiff report dt.19.04.1996 executing thewarrant dt.29.03.1996 are non-existent and to be null and

void, and the appellants are precluded from placing anyreliance on them in any proceeding against the claimpetitioners or against any third party.

(j) We direct the appellants to forthwith restore to the claimpetitioners in Application No.585 of 2002, Application No.708of 2002, Application No.1319 of 2003 and Application No.1320 of 2003 lands claimed by the claim petitioners inSy.No.172 of Hydernagar village (which were taken from thempursuant to the Bailiff report dt.19.4.1996 in E.P.No.3 of 1996)and the appellants are further injuncted from interfering withtheir possession and enjoyment of the said land.

(k) The following implead applications are dismissed.

1. I.A.No. 1 of 2014 in OSA No.54 of 2004

2. I.A.No.2 of 2014 in OSA No.54 of 2004

3. I.A.No.2 of 2019 in OSA No.54 of 2004

4. I.A.No.3 of 2019 in OSA No.54 of 2004

5. I.A.No.1 of 2014 in OSA No.56 of 2004

6. I.A.No.2 of 2014 in OSA No.56 of 2004

7. I.A.No.2 of 2019 in OSA No.56 of 2004

8. I.A.No.3 of 2019 in OSA No.56 of 2004

9 I.A.No.2 of 2014 in OSA No.57 of 2004

10. I.A.No.3 of 2019 in OSA No.57 of 2004

11. I.A.No.5 of 2019 in OSA No.57 of 2004

12. I.A.No.2 of 2014 in OSA No.58 of 2004

13. 1.A.No.2 of 2019 in OSA No.58 of 2004

14. I.A.No.2 of 2014 in OSA No.59 of 2004

15. I.A.No.3 of 2014 in OSA No.59 of 2004

16. I.A.No.4 of 2014 in OSA No.59 of 2004

17. I.A.No1 of 2017 in OSA No.59 of 2004

18. LA.No.2 of 2017 in OSA No.59 of 2004

19. I.A.No.1 of 2018 in OSA No.59 of 2004

20. I.A.No.2 of 2018 in OSA No.59 of 2004

A

B

C

D

E

F

G

H

A21. I.A.No.2 of 2019 in OSA No.59 of 2004

22. I.A.No.3 of 2019 in OSA No.59 of 2004

23. 1.A.No.5 of 2019 in OSA No.59 of 2004

24. I.A.No.4 of 2019 in OSA No.59 of 2004

B(k) The appellants shall pay costs of Rs.10,000/- to each ofthe respondents in the OSAs 54, 56-58 of 2004 /claimpetitioners/applicants in Application No.585 of 2002,Application No.708 of 2002, Application - No.1319 of 2003and Application No. 1320 of 2003.”

C88. Before coming to the above conclusions, the Division Benchrecorded certain findings. The Bench held that the appellants therein(who are the appellants herein) failed to establish that the land inHydernagar village is Mathruka property of Khurshid Jah Paigah andthat the preliminary decree dated 28.06.1963 as regards the lands inHydernagar village was vitiated by fraud. The Division Bench furtherDheld that the orders obtained in Application No.266 of 1983 and ApplicationNo.994 of 1995 are also vitiated by fraud and hence cannot be executedagainst the claim petitioners and third parties. Even the final decreepassed on 24.04.1998 in Application No.517 of 1998 with regard to acres98.10 guntas in Survey No.172 of Hydernagar was held by the DivisionEBench to be a nullity.

89. Insofar as applications for impleadment made by various partiesin OSA Nos.54 and 56 to 58 of 2004 were concerned, they were dismissedby the Division Bench on the ground that third parties cannot getimpleaded in a claim petition filed by somebody else and that any oneFclaiming a right to property should have filed a separate claim petition.Insofar as the impleading applications in OSA No.59 of 2004 wereconcerned, the Division Bench felt that there was no remand of OSANo.59 of 2004 and that therefore, applications for impleading in an appealnot remanded by the Supreme Court cannot be allowed.

90. Challenging the common order dated 20.12.2019 passed bythe Division Bench of the High Court for the State of Telangana, severalparties have come up with the appeals on hand. The parties who havecome up against the impugned judgment include those, (i) who areassignees of the decrees and who wanted the decree to be executedand possession handed over to them; (ii) whose applications for G

H

impleadment in OSA Nos.54 and 56 to 58 of 2004 have been dismissed;(iii) whose applications for impleadment in OSA No.59 of 2004 havebeen dismissed; (iv) who are concerned about the other half of the landin Hydernagar (Item No.38 of the Plaint Schedule IV), but who havesuffered a collateral damage on account of the preliminary decree beingheld void ab initio; (v) defendant No.58 in the suit, who was not a partybefore the High Court, but who claims that the extent of land in SurveyNo.172 of Hydernagar village to which she became entitled, is nowaffected by the preliminary decree being held void; and (vi) the State ofTelangana.

91. To put it in simple terms, (i) persons whose intra-Court appealswere dismissed by the High Court; (ii) persons whose applications forimpleadment were dismissed by the High Court; (iii) persons who werenot party before the High Court but whose rights in respect of the otherpart of Survey No.172, or other items of properties, are perceived to beaffected by the impugned judgment; and (iv) the State Government,have come up with the appeals. The non-parties have come up withapplications for leave to file Special Leave Petitions and those applicationshave already been allowed.

92. Apart from the appeals, there were also a few applicationsfor impleadment, which may have to be addressed separately. Therefore,for the purpose of clarity, we shall divide this judgment into nine parts, asdetailed hereunder:

Part-I — will contain the meaning of certain peculiar words andexpressions used throughout.

Part-II— will contain details about who is pitted against whom inthis battle.

Part-III— will contain details as to how (i) the appellants;(ii)claim petitioners; and (iii)the State Government are claiming title to thevery same property.

Part-IV— will deal with the issues arising for consideration inthis batch of appeals (including the appeals filed by the State ofTelangana).

Part-V — will deal with the claims of those whose impleadmentapplications were dismissed by the High Court but whose cases aresimilar to that of the claim petitioners.

A

B

C

D

E

F

G

H

Part-VI— will deal with appeals by non-parties to the impugnedjudgment challenging one portion of the impugned judgment.

A

Part-VII – will deal with I.A. No. 118143 of 2022 filed by Mohd.Mustaffuddin Khan and others (legal heirs of defendant No.52) seekingto intervene in the appeal arising out of SLP (Civil) No. 8884 of 2022.

B

Part-VIII— will deal with I.A. No.112090 of 2022 filed by anAsset Reconstruction Company.

Part-IX— will deal with I.A.No. 36422 of 2023 filed by DurgaMatha Co-operative House Building Society Ltd.

Part-I:CDecoding certain words and expressions

93. Before we proceed further, it may be necessary to decodecertain words and expressions used in these proceedings from thebeginning. If not, they will continue to haunt and frighten the reader.DTherefore, a glossary is presented as under:

E

FG

6 (2001) 8 SCC 599 titled “Jamil Ahmad and Others vs. Vth Addl. Distt. Judge,Moradabad and Others”

7 (1987) 1 SCC 52 titled “Himmatsinghji v. State of Rajasthan”.

8 AIR 1955 SC 504, 520, 521: (1955) 2 SCR 303 titled “Thakur Amar Singhji v. StateHof Rajasthan”

Part-II:

Who is fighting whom?

94. Unlike the routine run-of-the mill matters that come up beforethis Court where there are usually two parties to the disputes, there areseveral parties to the dispute on hand. On the one hand we have personsclaiming title to the property on the basis of a preliminary decree andfinal decree in a suit for partition. On the other hand, we have persons(who were claim petitioners before the Executing Court) who claimedindependent title on the basis of pattas granted to their predecessors,after the abolition of Jagir. We also have the State of Telangana stakinga claim to the property in entirety on the ground that the property hadvested in them long time ago. Interestingly, those who claim title on thebasis of the preliminary and final decrees in the partition suit, were initiallyprepared to give up their claim to a portion of the property which is in theoccupation of those who are before the Executing Court as obstructionists/claim petitioners. But the claim petitioners have taken a tough stand,exhibiting a willingness to do or die. But insofar as claim of the StateGovernment is concerned, both the decree holders as well as the claimpetitioners stand united in their opposition. Apart from these three setsof main contestants, there are also others including (i) those who areafraid of the potential of the impugned judgment to harm their interest inrespect of other properties covered by the decrees in the civil suit; and(ii) an Asset Reconstruction Company to whom the mortgage of one ofthe properties has been assigned along with the debt.

A

B

C

D

EFGH

A95. For the purpose of easy appreciation, we shall refer to theparties as (i) decree holders and assignees of the decrees; (ii) claimpetitioners who were parties before the High Court; (iii) claim petitionerswhose impleadment applications were dismissed by High Court; (iv)third parties; and (v) State Government.

BPart-III:

How do the different parties to the dispute claim title?

96. Persons who challenge the impugned judgment fall under threecategories, namely, (i) the assignees of decrees; (ii) claim petitionerswhose impleadment applications have been dismissed by the High Court;Cand (iii) the State Government.

The basis of the claim of the assignees of decrees

97. The parties to the suit, the decree holders and the assigneesof the decrees (Cyrus/Gold Stone/Trinity) claim title to the land of extentDof about 98 acres in Survey No.172 of Hydernagar primarily on thebasis:

(i) that it was the Mathruka property of Khurshid Jah;

(ii) that Dildar-Un-Nissa Begum sought partition of this propertyalong with other properties on the basis that it wasEinheritable;

(iii) that in the judgment and preliminary decree passed on28.06.1963 the Court had adjudicated that the property wasa Matruka property;

(iv) that even the proceedings before the Nazim Atiyat and theFMuntakhab issued thereafter confirm the entire village ofHydernagar asInam Altamgha in the name of Khurshid Jah;

(v) that Inam Altamgha is hereditary and transferable;

(vi) that pursuant to the preliminary decree, Receiver-cum-GCommissioner appointed by the Court sought directions fromthe Court to the Collector to hand over possession of theland by filing an application in IA No.268 of 1966;

(vii) that on 23.02.1967, HEH Nizam (defendant No.156) soldhis decretal rights to Cyrus (defendant No.206) by way ofa registered sale deed;H

(viii) that on 24.03.1967 Application No.268 of 1966 was allowedAby the High Court directing the Collector to deliverpossession to the Receiver;

(ix) that on 05.11.1970 the High Court passed an order in theapplication filed by Khasim Nawaz Jung (defendant No.157)and Cyrus (defendant No.206) for partition of the propertyBinto half amongst themselves holding that immediately afterallotment of shares, D-157 and 206 may exercise theirchoice and move the commission to take steps in thisregard;

(x) that on 15.03.1972, the Receiver-cum-Commissioner fileda memo before the Court specifically in regard to ItemNo.38-Hydernagar stating that he has verified the recordsavailable in Tehsil Office and the pahani patrikas and foundthat the patta has been shown in the name of NawabHimayath Nawaz Jung (Ameer-E-Paigah) in respect of thelands in Survey Nos. 145, 163 and 172 of Hydernagar villageto a total extent of 591.36 acres and that Survey No.172 isfound to be 196 acres, 20 guntas; C

D

(xi) that on 03.12.1972, the Receiver-cum-Commissionerprepared a scheme of partition for agricultural landsmentioned in List I, including Hydernagar and a person-wise (Statement 1) and survey-wise (Statement 1A) schemeof partition for Hafizpet and Hydernagar were prepared; E

(xii) that on 28.03.1973, the Special Deputy Collector, Hyderabadfiled a counter stating that Survey No.172 was grazing landand not cultivable land; F

(xiii) that on 05.07.1974, the Court allowed Application No.19 of1973 and directed the Government to hand over symbolicpossession of the lands situated in Survey Nos. 145 and163 of Hydernagar village measuring Acres 220 guntas 18and Acres 175 guntas 6 respectively to the Receiver; G

(xiv) that in so far as other lands were concerned, the Courtrecorded in its order dated 05.07.1974 that the Governmentwas not even in a position to hand over symbolic possessionand that therefore it is for the Receiver-cum-Commissionerto take such steps as are available in law; H

A(xv)that the Court vide order dated 31.01.1976 referred thematter to the Collector for partition and allotment of sharesunder Section 54 CPC, but the Collector never submitted areport in respect of Survey No.172;

(xvi) that on 09.04.1980, the Receiver-cum-CommissionerBaddressed a letter to the Collector stating that despite theCourt’s order dated 31.01.1976, the Collector had not takenany steps to divide the lands in Hydernagar, but on the otherhand Taluq Office had granted pattas in the names ofseveral persons, forcing the Receiver to file a contemptpetition against Wasim-e-Jamabandi and to seek cancellationCof pattas;

(xvii) that on 05.08.1983, the application filed by Nawab KhasimNawaz Jung (defendant No.157) and Cyrus (defendantNo.206) for deletion of names of plaintiff Nos.1 and 2 andother defendants and substitute them in their place (due toDsale of their decretal rights) was allowed;

(xviii) that in 1983, the Receiver-cum-Commissioner submitted areport stating that as per the scheme of partition, NawabKhasim Nawaz Jung (defendant No.157) and Cyrus(defendant No.206) are entitled to receive possession ofEthe entire Survey No.172 Hydernagar as it was allotted topersons who have sold their decretal rights to them andthat Survey No.172 does not need to be partitioned andpossession can be given to Nawab Khasim Nawaz Jung(defendant No.157) and Cyrus (defendant No.206); F(xix)that on 20.01.1984, Application No.266 of 1983 filed byNawab Khasim Nawaz Jung (defendant No.157) and Cyrus(defendant No.206) seeking possession was allowed andthe Receiver-cum-Commissioner was directed to hand overthe possession anda warrant for possession was also issued; G(xx)that the Receiver-cum-Commissioner in his report dated13.07.1984, noted that the entirety of 196.20 acres of SurveyNo.172 has been allotted to Nawab Khasim Nawaz Jung(defendant No.157) and Cyrus (defendant No.206) pursuantto the sale of decretal rights by all parties who were allottedlands in Survey No.172 in the scheme of partition;H

(xxi) that in 1991, since Nawab Khasim Nawaz Jung (defendantNo.157) and Cyrus (defendant No.206) held whole of the196.20 acres in Survey No.172, they came to an internalarrangement to assign their respective rights andfor Cyrus’share, 10 plots were to be allotted to 16 petitioners;

(xxii) that on 29.11.1995, Cyrus (defendant No.206) executedAssignment Deeds in favour of Goldstone and others fortheir half share in Survey No.172 of Hydernagar and NawabKhasim Nawaz Jung (defendant No.157) executedAssignment Deed in favour of Nazeer Baig and others;and

(xxiii) that the petitioners thus came to hold full rights over theland measuring 98.10 acres in Survey No.172.

The basis of the claim of the claim petitioners

98. The case of the claim petitioners was:

(i) that their predecessors were the original cultivators of theland in Survey No.172 of Hydernagar village;

(ii) that they became pattadars for the extents of land undertheir cultivation by operation of law, namely Rules 2 and 3of the Rules Relating to Grant of Pattadari Rights in Non-Khalsa Villages;

(iii) that thereafter a Zamina Sethwar was also issued to thateffect in 1947 itself with tonch map and Pote numbers bysub-dividing Survey No.172 into Survey Nos.172/1 to 172/25;

(iv) that the original Sethwar was obtained by the Collectorfrom the State archives and forwarded to the Tehsildar(West), Hyderabad for recording the same in the revenuerecords vide the letter dated 19.05.1979, as evidenced byFaisal Patti;

(v) that the portions of the land in Survey No.172 weredeveloped into a colony of residential plots by CooperativeHousing Societies and that the claim petitioners boughtindividual housing plots from the Cooperative HousingSocieties; and A

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A(vi)that the claim petitioners thus became the owners ofindividual plots.

The basis of the claim of the State of Telangana

99. The claim of the State is:

(i) that Khurshid Jah left no Mathruka property at the time ofhis death in 1902; B

(ii) that he only had Paigah/Jagir property at that time;

(iii) that such Jagir property vested in the State by virtue ofJagir Abolition Regulations, 1949; C

(iv) that these facts were confirmed by the Paigah Committeethrough the then Chief Justice of Hyderabad-Mirza Yar Jungin 1929;

(v) that the determination by the Paigah Committee isconclusive and binding on the parties;D

(vi) that the findings of the Paigah Committee were furtherconfirmed by the royal prerogative of Nizam, as seen fromFarman;

(vii) that it is settled law that all Jagir lands vest in the State andEthey are inalienable and non-heritable, as opined by twoConstitution Benches of this Court in Raja Ram ChandraReddy vs. Rani Shankaramma[9]and Sikander JehanBegum vs. Andhra Pradesh State Government[10]and twoother decisions of this Court in State of Andhra Pradesh(Now State of Telangana) vs. A.P. State Wakf Board[11]Fand Mohd. Habbibuddin Khan vs. Jagir Administrator,Government of Andhra Pradesh[12];

(viii) that the State was made party to the suit as defendant No.53only after defendant No.1 filed a written statement indicatingthat Item Nos.37 to 40 of the Plaint Schedule IV were takenGover by the State; 9 AIR 1956 SC 31910 AIR 1962 SC 99611 2022 SCC OnLine SC 159H12 (1974) 1 SCC 82

(ix) that as held by this Court in Rangammal vs.Kuppuswami[13], a suit for partition is not a suit fordeclaration or determination of title; A

(x) that the findings recorded as though the properties areMathruka properties, were a product of collusion on thepart of the defendants who originally opposed the suit butBwho later entered into a compromise;

(xi) that as held by the High Court in the impugned judgment,the preliminary decree itself was vitiated by fraud and henceno findings recorded therein can be relied upon; C

(xii) that even the proceedings before the Atiyat Court werenot with respect to declaration of title but only for theapportionment of shares in the compensation;

(xiii) that the State in fact paid compensation; and

(xiv) that the land which vested in the State by virtue of JagirAbolition Regulations, cannot be gifted away either to thedecree holders or to the claim petitioners.

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Part-IV:

Issues arising for consideration

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100. A careful consideration of the judgment of the learned SingleJudge and that of the Division Bench impugned herein and a considerationof the rival contentions, would show that the following issues arise forour consideration: -

(i) Whether the Division Bench of the High Court was rightin declaring that the preliminary decree dated 28.06.1963was vitiated by fraud and consequently null and void,especially when there was no pleading and no evidencelet in?

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(ii) Whether the concurrent findings of the Single Judge andGthe Division Bench of the High Court that Khurshid Jah didnot leave behind any Mathruka property, goes contrary tothe finding recorded in the Judgment and preliminary decreethat has attained finality?

A(iii)Whether the finding recorded in the judgment andpreliminary decree that the lands in Hydernagar areMathruka property is binding upon third parties?

(iv) What is the scope of the enquiry under Order XXI Rules97-101, CPC ?B

(v) Whether the claims of the claim petitioners stoodestablished? and

(vi) Whether the State of Telangana has any legitimate claimand whether any such claim would still survive after a seriesof setbacks to the State Government in the Court room?

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Issue No. (i) and (iv):

(i) Whether the Division Bench of the High Court was rightin declaring that the preliminary decree dated 28.06.1963 wasvitiated by fraud and consequently null and void, especially whenDthere was no pleading and no evidence let in? and

(iv) What is the scope of the enquiry under Order XXI,Rules 97-101, CPC ?

101. As rightly contended by Shri Gopal Sankarnarayanan, learnedsenior counsel for the assignees of decrees, no one pleaded that theEpreliminary decree was vitiated by fraud. Allegations of fraud, as rightlycontended, require special pleadings in terms of Order VI, Rule 4 CPC.

102. In fact, the impugned judgment of the Division Bench aroseout of a challenge to the judgment of the learned Single Judge dated26.10.2004. In paragraph 19 of his judgment, the learned Single JudgeFframed certain issues as arising for consideration. Paragraph 19 of thejudgment of the learned Single Judge reads as follows:

“19. On the basis of the pleadings of the parties, the followingissues and additional issues have been framed in all theapplications:

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1) Whether the land covered by S.No.172 of Hydernagarvillage is the matruka property of late Nawab KursheedJha Paigah?

2) Whether the Nizam administration has been prohibitedby means of Farman by the Nizam prior to the abolition H

of inams from transferring the land in favour of anypersons?

3) Whether the lands in question are inam (Jagir) landsand stand vested in the Government after the abolitionof inams (jagirs)?

4) Whether the patta was granted in favour of Boddu VeeraSwamy and others in 1947?

5) Whether the alleged pattas said to have been executedin favour of Boddu Veeraswamy and others are genuinedocuments or not?

6) Whether the claimants have been in possession andenjoyment of the property since the time of BodduVeeraswami (grant of pattas)?

7) Whether the claim is barred by limitation?

8) Whether the judgment and decree in C.S. No.14 of 1958is binding on the petitioners/claimants?

9) Whether the claimants have any right, title and interestover the property in question?

10) Whether the claim petition is barred by limitation in viewof the remand order of the Supreme Court?

11) to what relief?

Additional Issues:

1) Whether the alleged delivery of possession on 17.4.1996is not valid illegal and has no legal effect, since, finaldecree has not been engrossed on proper stamp paperand property has not been divided by metes and bounds?

2) Whether the claimants have otherwise protected theirtitle by adverse possession?

No issues were framed in Appln. No.994 of 1995. However,issues referred to above will cover the controversy in thatapplication also.”

103. As may be seen from the above issues, fraud was not one ofthe issues framed nor was there any finding recorded by the learned A

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ASingle Judge about fraud. But the Division Bench read such a findinginto the order of the learned Single Judge.

104. In addition, the Division Bench, while dealing with the scopeof the enquiry under Order XXI Rules 97 to 101 CPC, went into thequestion (from paragraph 149 onwards) as to whether the issue of fraud,Bif raised in a claim petition, can be gone into by the Executing Court.After referring to the decision of this Court in National TextileCorporation (Maharashtra South) Ltd. vs. Standard CharteredBank[14] and the decisions of the Bombay and Calcutta High Court, theHigh Court held in the impugned judgment that an issue of fraud, ifraised in a claim petition, can be gone into by the Executing Court. AfterCso holding, the High Court first came to the conclusion that the report ofthe Bailiff dated 19.04.1996 as though possession of the land was taken,was fraudulent. After so holding in paragraph 203, the High Court opinedin paragraph 208 that if fraud is borne out from the record of the Courtitself, there is no necessity for a separate and specific pleading. To comeDto the said conclusion, the High Court drew inspiration from the decisionof this Court in Lachhman Dass vs. Jagat Ram and Others[15], whereinthis Court held that where collusion between the parties is apparent onthe face of the record, the absence of specific pleading was immaterial.The High Court then proceeded to hold that specific boundaries andsurvey numbers of the properties were not indicated in the Plaint ScheduleEbut the Receiver curiously identified those properties and that when theland in Survey No.172, Hydernagar was in the possession of third parties/pattadars for a long time, from a period prior to 1948, the attempt of theplaintiff to get a decree behind their back was fraudulent and thattherefore the preliminary decree as regards the lands in HydernagarFvillage was void ab initio. The High Court also found that there wassuppression of facts in Application Nos. 994 of 1995 and 266 of 1983and that such suppression was sufficient to uphold the plea of fraud.

105. But the difficulty with above finding of the High Court is thatnone of the parties to the preliminary decree challenged the same on theGground that it was vitiated by fraud. Though persons obstructing executionand making claims in terms of Order XXI, Rules 97 to 101 CPC are alsoentitled to attack the decree on the ground of fraud, such claim petitionersare obliged to make pleadings as to how fraud is borne out by the records.

14 (2000) 10 SCC 592H15 (2007) 10 SCC 448

106. We must remember that persons obstructing or resisting theexecution of a decree for possession may fall under different categories.An obstructionist may be one claiming to have been put in lawfulpossession by one of the parties to the decree itself. An obstructionistmay also be a person claiming independent title in himself.

107. In fact, an application under Order XXI Rule 97 CPC is tobe filed by the decree-holder (or purchaser in execution of the decree),as can be seen from the statutory provision. Order XXI Rule 97 readsas follows:

“97. Resistance or obstruction to possession of immovableproperty.—(1) Where the holder of a decree for the possessionof immovable property or the purchaser of any such property soldin execution of a decree is resisted or obstructed by any personobtaining possession of the property, he may make an applicationto the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Courtshall proceed to adjudicate upon the application in accordancewith the provisions herein contained.”

108. In contrast, an application under Order XXI Rule 99 is to befiled by the person dispossessed of immovable property, by the holder ofa decree for possession.

109. Though by virtue of Rule 101 of Order XXI, all questionsincluding questions relating to right, title or interest in the property arisingbetween the parties to a proceeding on an application under Rule 97 orRule 99 shall be determined by the Executing Court and not by a separatesuit, any order passed under Rule 101 is subject to the result of a suitwhere the obstructionist seeks to establish a right.

110. Rules 101 and 104 read as follows:

“101. Question to be determined.—All questions (includingquestions relating to right, title or interest in the property) arisingbetween the parties to a proceeding on an application underrule 97 or rule 99 or their representatives, and relevant to theadjudication of the application, shall be determined by the Courtdealing with the application, and not by a separate suit and forthis purpose, the Court shall, notwithstanding anything to thecontrary contained in any other law for the time being in force,be deemed to have jurisdiction to decide such questions.

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A104. Order under rule 101 or rule 103 to be subject tothe result of pending suit.—Every order made under rule101 or rule 103 shall be subject to the result of any suit thatmay be pending on the date of commencement of theproceeding in which such order is made, if in such suit theparty against whom the order under rule 101 or rule 103 isBmade has sought to establish a right which he claims to thepresent possession of the property.”

111. It may be of interest to note that while Rule 101 allows theExecuting Court to decide all questions including questions relating toright, title or interest in the property, Rule 103 creates a deeming fictionCthat the orders so passed under Rule 101 shall be deemed to be a decree.

112. Despite Rules 101 and 103, the order passed under Rule 101is made, under Rule 104, subject to the result of any pending suit.

113. In the case on hand, the obstructionists do not claim titleDunder any one of the parties to the litigation. They set up independenttitle in themselves. What was filed by Dildar-Un-Nissa Begumwas onlya suit for partition. In a suit for partition, the Civil Court cannot go intothe question of title, unless the same is incidental to the fundamentalpremise of the claim.

E114. Take for instance a suit filed for partition by a member of theHindu Undivided Family. If one of the coparceners or an alienee fromsuch coparcener, claims independent title to one of the properties boughtin his individual name, it may be open to the Court while trying the suitfor partition to decide whether such a property belongs exclusively tothe defendant.To this limited extent, examining the title of a party to theFsuit schedule property is permissible even in a suit for partition.

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115. But in a simple suit for partition, the parties cannot assert titleagainst strangers, even by impleading them as proforma respondents.The strangers who are impleaded in a partition suit, may have nothing tosay about the claim to partition. But they may have a claim to title to theGproperty and such a claim cannot be decided in a partition suit.

116. Realising this difficulty, it was contended by Shri GopalSankarnarayanan, learned senior counsel for the appellants that the suitwas not just a suit for partition simpliciter, but a suit for declaration thatthe properties are Mathruka properties of late Nawab Khurshid Jah.H

He drew our attention in this connection to the relief sought in paragraph18(a) of the plaint.

117. At the cost of repetition, we shall extract the relief sought inparagraph 18(a) of the plaint once again as follows:

“directing that the properties detailed in Schedule IV whichare in the possession of the party as detailed therein and theother (b) category properties detailed in para (12) above whichare in the possession of defendant No.43 and all other propertieswhatsoever that may be found to belong to Mathruka of thelate Nawab Khurshid Jah be divided by metes and bounds andplaintiff be given her 29/1944[th] share therein.”

118. Since the relief sought in paragraph 18(a) of the plaint refersto paragraph 12 of the plaint, we may have to take a look at paragraph12 of the plaint. Paragraph 12 of the plaint (extracted elsewhere) statesthat as per Farman dated 17.01.1929, the Nizam prevented thedistribution of two classes of Mathruka properties and that the list ofproperties purchased out of the income of the Paigah, detailed inSchedule IV and IVA are of the approximate value of Rs.6,52,058-2-0.But in paragraph 13 of the plaint, the approximate aggregate tentativevalue of the suit schedule properties is mentioned as O.S. Rs.7,52,058-20. The value of the plaintiff’s share namely 29/2944[th] share, is arrivedat in paragraph 13 as O.S. Rs.7,408-1-1.

119. The way in which the suit claim has been valued and court-fee paid, demonstrates very clearly that it was nota suit for declarationof title to any property. It was only a suit for partition. All the suit scheduleproperties have been valued at a particular rate and court-fee was paidon the value of the share, of which the plaintiff was seeking partition. Ifit was a suit containing a prayer for declaration of title, the court-feewas liable to be paid on the whole value of the property and not on theshare sought to be partitioned.

120. Therefore, we are of the view that the preliminary decreedated 28.06.1963 could not have determined the claim to title madeby the legal heirs seeking partition, as against third parties. Anyfinding rendered in the preliminary decree, that the properties wereMathruka properties liable to be partitioned, was only incidental tothe claim of the legal heirs and such a finding will not bedeterminative of their title to property as against third parties.

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A121. In fact, we have already noted that as many as 50 issueswere framed for trial in the suit. But all these 50 issues were found inthe judgment and preliminary decree to revolve only around 10 broadpoints, both of fact and of law. Those 10 points read as follows:

“The questions at issue arising in the suit revolve round theBfollowing ten broad pointes both of fact and of law.

I.Whether Nawab Khurshid Jah left any property of thedescription covered by para 2 of the Farman Ex. P 30dated 5[th] Shahabad, 1347 (corresponding to 17-1-1929)and Or.3 clause 9; and what is its extent.

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II.Whether that property is liable to be divided amongstthe surviving legal heirs in the line of his succession?

III.Whether the claim for such division is within time?

IV.Who are various heirs?

DV.What are the respective rights of those heirs, includingthe rights of the Amir Paigah who has been in possessionof these properties?

VI.Is defendant No.1 liable for rendition of accounts andmesne profits, as claimed?

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VII.Whether any of the defendants have cause damage ordestruction to the Matruka property as alleged by theparties, if so, what is their extent?

VIII. Whether they or any of them made any alienation; towhat extent, and how the equities in case of transfereesFon record be adjusted?

IX.Whether the suit is bad for misjoinder of parties or causesof action.

X. Whether the court-fee paid is correct.”

G122. None of the above 10 points relate to the assertion of theclaim of third parties (except the Government) to title to the properties.

123. Therefore, the manner in which the judgment andpreliminary decree dated 28.06.1963 were sought to be used, abusedand misused by parties to the proceedings as well as non-partiesHwho jumped into the fray by purchasing portions of the preliminary decree and seeking to execute them through Court, defeating therights of third parties, is what has prompted the Division Bench ofthe High Court to hold that the preliminary decree is vitiated byfraud. Though we may not go to that extent, we would certainly holdthat, (i) what was a simple suit for partition; and (ii) the incidental findingrecorded that the properties were Mathurka properties, have been usedby parties and non-parties to assert title to the properties against strangers.This was definitely an abuse of the process of law.

124. There are two more aspects which highlight the abuse ofthe process of law in this case. They are as follows:

(i) The preliminary decree for partition was passed on28.06.1963; the Executing Court passed an order on29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of theCourt to deliver possession of the land in Survey No. 172of Hydernagar to the decree holder; and thereafter a finaldecree was passed in Application No. 517 of 1998 on24.04.1998. Normally a final decree follows a preliminarydecree and execution follows the final decree. But strangely,the final decree followed execution, in this case.

(ii) The order passed by the Executing Court on 29.03.1996 inE.P. No. 3 of 1996 directing the Bailiff of the Court to deliverpossession of the land in Survey No. 172 of Hydernagarwas a specimen of a unique kind. It may be recalled that anapplication was taken out by the Receiver-cum-Commissioner way back in 1973, in Application No. 19 of1973, praying for a direction to the Collector to hand overpossession of the lands in Survey Nos. 145, 163 and 172 ofHydernagar. On this application, the High Court passed anorder on 05.07.1974, directing the Government to hand oversymbolic possession of the lands situate in Survey Nos. 145and 163 of Hydernagar village measuring acres 220 guntas18 and acres 175 guntas 6 respectively to the Receiver.But insofar as other lands were concerned (i.e., SurveyNo. 172), the Court recorded in its order dated 05.07.1974that the Government was not even in a position to handover symbolic possession and that therefore it is for theReceiver-cum-Commissioner to take such steps as areavailable in law. In other words, even symbolic possession A

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of the land in Survey No. 172 was not possible in theyear 1974, but actual possession became possible in theyear 1996 after the decrees were sold by way ofassignments. We do not know what magic was playedby Goldstone, like a philosopher’s stone[16], to make this miracle possible.

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125. It is on record that taking advantage of the finding renderedin the judgment and preliminary decree dated 28.06.1963, severalassignments of the decree had taken place and the assignees have madeseveral applications seeking a final decree as well as possession of partof the properties described in the suit schedule, on the basis ofCcompromise entered into with the assignors of the decree. The numberof final decree applications disposed of by the High Court so far and thenumber of final decree applications now pending on the file of the HighCourt bear ample testimony to a gross abuse of the process of law,which has prompted the High Court to brand the preliminary decree asDvitiated by fraud and consequently null and void. In fact, we may takejudicial notice of the fact that during 2017-19, the High Court constituteda Special Division Bench to hear and dispose of hundreds of such finaldecree applications filed on the basis of alleged compromises betweenfew parties. Most of them are still pending.

E126. Technically the High Court may not be right, in the true legalsense, in branding the preliminary decree as vitiated by fraud. But thefact remains that insofar as third parties to the family of Khurshid Jah(and those claiming under them) are concerned, the preliminary decreeis nothing more than a mere paper, as those third parties have had nothingto do with the claim for partition, though they have had a legitimate claimFto title to the properties, described in the suit schedule. Therefore, wewould only say and hold on question Nos. (i) and (iv) that the judgmentand preliminary decree dated 28.06.1963, though may not be vitiated byfraud, are certainly not binding upon third parties like the claim petitionersand the Government who have set up independent claims. We also holdGthat in an enquiry under Order XXI, Rules 97 to 101, CPC, the ExecutingCourt cannot decide questions of title set up by third parties, who assertindependent title in themselves. Marina Beach (in Chennai) or HussainSagar (in Hyderabad) or India Gate (in New Delhi) cannot be included 16 A mythical substance supposed to change any metal into Gold or Silver or to cure allHdiseases and prolong life indefinitely.

as one of the items of properties in the Plaint Schedule, in a suit forpartition between the members of a family and questions of title to theseproperties cannot be allowed to be adjudicated in the claim petitionsunder Order XXI, Rules 97-101, CPC.

127. Insofar as the Government is concerned, heavy reliance isplaced by the learned senior counsel for the appellants on the fact thatthe State of Andhra Pradesh was impleaded as defendant No.53 andthat they have not only filed the written statement but also examinedfour witnesses and that therefore the claim of the Government is sealed.

128. It is true that Item Nos.35 to 40 of Plaint Schedule IV weretaken up for consideration in the judgment in support of the preliminarydecree, under Issue Nos.13(c) and 14(a). It is also true that the Courtconsidered the evidence of DWs 26 and 32 to 34. Eventually, the Courtcame to the conclusion (in the judgment in support of the preliminarydecree) that while Item Nos.38 and 39 had admittedly come fromKhurshid Jah’s time, there was no evidence that they were taken overby the Government at the time of integration. Not stopping at that, theCourt recorded a finding in the judgment and preliminary decree that themere denial of defendant No.1would not defeat the plaintiffs’ claim.Such a finding was recorded in the teeth of a categorical stand taken bydefendant No.1 that Item Nos.38 and 39 are in the possession of theState Government.

129. In fact, all the parties before us admitted that in one portionof the property there is a building housing the Hyderabad Metro WaterWorks and Sewerage Board. We do not know how despite such anadmission, the Government can be said to be an interloper and a meddler.

130. As we have stated elsewhere, it can be seen from the PlaintSchedule IV which was made part of the judgment and decree dated28.06.1963,that the property which is the subject matter of the litigationon hand, finds a place at Serial No.32 of Annexure IV to the judgmentand decree and it corresponds to Item No.38 of Plaint Schedule IV. Thedescription of this property in the Plaint Schedule IV reads as follows:- “Hydernagar patta lands. Compact area of 1210 acres”

131. What was included as Item No.38 of Plaint Schedule IV andenlisted at Serial No.32 of Annexure IV to the judgment and decree, didnot contain (i) either the survey numbers of Patta lands; or (ii) theboundaries of the land. Column No.4 of the table in Annexure IV to the A

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Ajudgment and decree, contains details of the name of Mahalla or place.As against Hydernagar Patta lands, what was indicated in Column No.4was “Hydernagar Taluk: Garbi”. Nobody knew and nobody cared tofind out before the delivery of the judgment dated 28.06.1963 as towhether Hydernagar was a village or Taluk and whether the whole ofHydernagar comprised of land, only of the total extent of 1210 acres orBsomething more. If the total extent of land available in Hydernagar wasonly 1210 acres, it would have been mentioned in the Plaint Schedule as“the whole of Hydernagar”. On the other hand, if what was includedwas only part of Hydernagar, the survey numbers and boundaries oughtto have been mentioned. But it was not done.C

132. In fact, the judgment in support of the preliminary decreecontains a conundrum. The Court first recorded that 50 issues arose forconsideration in the suit. Out of the 50 issues originally framed forconsideration, Issue No.14(a) concerned Item No.38 (Hydernagar)specifically. This issue reads as follows:-D

“14(a). Are the properties mentioned in Items 37 to 40 ofSchedule IV, the maktas and inam properties and, if so,whether the civil court has no jurisdiction in relation tothe same?”

133. The above Issue No.14(a) which directly concerned ItemENo.38 of Plaint Schedule IV, was taken up by the learned Judge alongwith Issue No.13(c), which related to Item Nos. 35 and 36, in whichcertain office buildings in the possession of the Government were inexistence.

134. On these two issues, namely Issue Nos. 13(c) and 14(a),Fwhich were taken up together, the learned Judge rendered the followingfindings:-

(i) that Item Nos. 35 and 36 are office buildings at Shahbadand Bhalki, taken over by the Government after the JagirAbolition Regulations and that after the StatesGReorganisation, these buildings came to be located withinthe territorial limits of Mysore State and that they had beenhanded over to the Government of Mysore;

(ii) that since these properties have vested with the Governmentby virtue of the provisions of the Jagir Abolition Regulations,H

the parties were not entitled to claim the same as KhurshidJah’s Mathruka; A

(iii) that Item Nos.37, 38 and 40 are within the territorial limitsof the district of Hyderabad and Item No.39 is in the districtof Nalgonda; B

(iv) that no claim was set up by the Government in relation toItem Nos.38 and 39 and the witnesses do not say that theywere Makta lands or that they were taken over by theGovernment;

(v) that as regards Item No.40, the title was in doubt; C

(vi) that therefore Item Nos.35, 36, 37 and 40 must be deletedfrom the Plaint Schedule IV;

(vii) that Item Nos.37 and 40 will be available for partition incase the Government released the same as a result ofenquiry; D

(viii) that enquiry into Inams or maktas is certainly not withinthe exclusive jurisdiction of the Civil Court; and

(ix) that therefore, Issue No.14(a) must be answered in theaffirmative and Issue No.13(c) against the plaintiff.

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135. The entire discussion on Issue Nos.13(c) and 14(a) showsthat the Trial Court did not actually record a clear finding as to how ItemNo.38 of Plaint Schedule IV belonged to the family and became liablefor partition. The entire discussion revolved around Item Nos.35 to 40.By a process of elimination, the Court first deleted Item Nos.35 and 36,Fon the ground that they were taken over by the Government after JagirAbolition Regulations and that those properties had vested with the Stateof Mysore. Then the Court deleted Item Nos.37 and 40 on the groundthat the title to the same was in suspension and that the answer to thequestion would depend upon the decision of the concerned Authorities.After thus eliminating Item Nos. 35, 36, 37 and 40, the Court simplyGjumped to the conclusion that Item Nos. 38 and 39 were available forpartition. This was despite the fact that even according to defendantNo.1, these items were in the possession of the Government. The logicthat the Court applied to Item Nos.35 and 36 were not applied to ItemNos.38 and 39.

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A136. What is interesting is the way in which Issue No.14(a) wasframed and the way it was answered. At the cost of repetition, we will

137. extract Issue No.14(a) which reads as follows:- “14(a). Are the properties mentioned in Items 37 to 40 ofSchedule IV, the maktas and inam properties and, if so,Bwhether the civil court has no jurisdiction in relation tothe same?”

The answer to this question was rendered by the Court as follows:

“Issue No.14(a) must be answered in the affirmative.”C

138. If Issue No.14(a) is answered in the affirmative, all theproperties in Item Nos. 37 to 40 are Maktas and Inam properties andthe Civil Court has no jurisdiction. This is the conundrum presented bythe preliminary decree. Therefore, the holders of the preliminary decreeand their assignees and purchasers cannot claim that the GovernmentDhad already become a persona non grata.

139. Therefore, in fine, we hold on Issue No. (i)that thejudgment and preliminary decree dated 28.06.1963, though maynot be vitiated by fraud, are certainly not binding upon third partieslike the claim petitioners as well as the Government who have setEup independent claims and that whatever was done in pursuanceof the preliminary decree was an abuse of the process of law. Wealso hold on Issue No. (iv) that in an enquiry under Order XXI,Rules 97 to 101, CPC, the Executing Court cannot decide questionsof title set up by third parties (not claiming through or under theFparties to the suit or their family members), who assert independenttitle in themselves. All that can be done in such cases at the stage ofexecution, is to find out prima facie whether the obstructionists/claimpetitioners have a bona fide claim to title, independent of the rights ofthe parties to the partition suit. If they are found to have an independentclaim to title, then the holder of the decree for partition cannot be allowedGto defeat the rights of third parties in these proceedings.

Issue Nos. (ii) and (iii)

(ii) Whether the concurrent findings of the single Judgeand the Division Bench of the High Court that Khurshid Jah didHnot leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree thathas attained finality? and

(iii) Whether the finding recorded in the Judgment andpreliminary decree that the lands in Hydernagar are Mathrukaproperty are binding upon third parties?

140. The answer to Issue No.(iii) is not very difficult to be found.While dealing with Issue Nos.(i) and (iv), we have already held that anyfinding relating to title to a property, recorded in a simple suit for partitioncannot be binding on third parties. The same would hold good even inrelation to the finding in the preliminary decree that most of the suitschedule properties were Mathruka properties. Making this clear let usgo back to Issue No.(ii).

141. Issue No.(ii) arising before us is as to whether the findingrecorded by the learned Single Judge in Application No.994 of 1995 andthe finding recorded by the Division Bench in the impugned judgmentthat Khurshid Jah did not leave behind any Mathruka property is contraryto the finding recorded in the preliminary decree that has attained finality?

142. For finding an answer to this question, let us first go back tothe judgment in support of the preliminary decree and see if at all theTrial Judge came to the conclusion that most of the suit properties leftbehind by Khurshid Jah were Mathruka properties.

143. In the judgment in support of the preliminary decree, theTrial Judge framed two issues as Issue Nos.7(a) and 7(b). Issue No.7(a)was as to whether the suit property detailed in Plaint Schedules IV, IVAand IVB were the Mathruka properties of Khurshid Jah. Issue No.7(b)was about the effect of the conclusions reached by Mirza Yar JungCommittee in this behalf.

144. In the judgment in support of the preliminary decree, thediscussion under Issue Nos. 7(a) and 7(b) begins on a correct note tothe effect that for a success in the case, the plaintiffs have to provethat the property was the property left behind by Khurshid Jah. It isalso noted at the very beginning of the discussion that the Mathrukaproperty of Zafar Jung and Imam Jung is distinct from the Mathrukaof Khurshid Jah. Interestingly, the judgment in support of the preliminarydecree records that while considering Issue No.7(a) it would benecessary to consider other connected issues, such as Issue No.8(a)which dealt with a settlement made by Khurshid Jah; Issue No.9 which A

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Adealt with the claim of defendant No.1 to be the sole owner of certainitems of properties; Issue Nos.10 and 11which dealt with the ownershipof two items and four items of property, respectively; Issue No.12which dealt with the claim of defendant No.1 to specific items ofproperties; and Issue No.20 which dealt with the claim of defendantNo.1 to be in adverse possession.B

145. Therefore, the discussion on Issue Nos.7(a) and 7(b) weredivided by the Trial Judge into separate parts, with the first part dealingwith Issue Nos.8(a), 11 and 12 and the next part dealing with IssueNos.9 and 20 along with Issue Nos.7(a) and (b).

C146. By combining all these issues with Issue Nos. 7 (a) and (b),the Trial Judge seems to have simply lost his way out,resulting in nodirect finding on Issue Nos.7(a) and 7(b).

147. The findings recorded by the Trial Judge under the heading“Issues 7(a) and 7(b) covering Issues 8(a) and 8(b), 9, 11, 12 and20” are as follows:D

(i) that there were two documents, one of partition and anotherof gift marked as Exhibits D.1(6) and D.1(29), relied uponby defendant Nos.1 and 2;

(ii) that under these documents, Khurshid Jah made aEdisposition of all his properties;

(iii) that in one of the recitals contained in the document, hedirected that the immovable properties divided among histwo sons shall remain in his possession and at his disposal;

(iv) that this recital gave the document, the colour of a Will;F

(v) that the second document was in the nature of a codicil;

(vi) that under Muslim law, a testamentary disposition can bemade in respect of not more than 1/3[rd] of the properties;

(vii) that if the disposition is in favour of an heir, it is invalidGunless consented to by the other heirs;(viii) that one of the heirs of Khurshid Jah did not give his consentand hence the Will was of no avail;

(ix) that according to the testimony of DW-25 (Vittal Rai, anold employee of the Paigah), after the death of KhurshidH

Jah, the property of the Paigah was kept under thesupervision of Zafar Jung who was never designated asAmir Paigah; A

(x) that after the death of Zafar Jung, the whole property ofKhurshid Jah was taken over by the Court of Wards, whichmanaged the same till 1338 F;B

(xi) that after Farman of 1338F, all the properties were declaredas properties belonging to the estate of Khurshid Jah;

(xii) that till the abolition of Paigah the properties were managedby the Committee Intezami Paigah; C

(xiii) that Exhibit P.7(a) relates to lands and maktajat;

(xiv) that they were Hashmatpet, Hafeezpet, Hydernagar, etc;

(xv) that the documents Exhibit P.2(a), P.3(a), P.4(a), P.6(a) andP.7(a) were all copies of the statements of income andexpenditure obtained from the Central Records Office; D

(xvi) that the claim of defendant No.1 that under Exhibits D.1(6)and D.1(29) the properties belonging to Khurshid Jah weregifted away and partitioned, cannot be accepted;

(xvii) that the property left by Khurshid Jah was never partitionedand they continued to be in possession of successive AmirPaigah; E

(xviii) that till the abolition of Paigahs, these properties weremanaged by the Committee of Amir Paigahs; F

(xix) that the estate of Khurshid Jah, for some time prior to theabolition of the Jagirs, was put under a Special Court ofWards;

(xx) that though under Exhibit D.1(3) dated 25.04.1950, theestate was directed to be released under a Farman, thesupervision of the estate nevertheless continued under ordersof the Chief Minister of Khurshid Jah Paigah; G

(xxi) that merely because the Government handed over the estateto Himayat Nawaz Jung, in recognition of his right as AmirPaigah, he cannot be deemed to be the exclusive owner;and H

A(xxii) that defendant No.1 cannot possibly set up title to Item No.1of Plaint Schedule IV against any other defendant whocomes in the line of succession of Khurshid Jah.

148. In the preceding paragraph, we have summarised all thefindings recorded by the Trial Judge under Issue Nos.7(a) and 7(b) takenBup together with Issue Nos.8(a) and 8(b), 9, 11, 12 and 20. In fact, thediscussion on Issue Nos. 7(a) and 7(b) starts at internal page No.198 ofthe certified copy (photocopy) of the judgment dated 28.06.1963 and itgoes up to internal page No.224. In all these 27 pages, the word‘Mathurka’ appears perhaps only in one place namely page No.212and that too as a statement made by one of the witnesses to the effect thatCMathruka was never partitioned between Zafar Jung and Imam Jung.

149. In other words, no finding was ever recorded by the TrialJudge in his judgment dated 28.06.1963 that the properties leftbehind by Khurshid Jah were Mahtruka properties. Therefore, thecontention as though there was such a finding and that the findingDhas attained finality and that the impugned Judgment goes contraryto such a finding, is wholly misconceived.

150. The portions of the judgment dated 28.06.1963 reliedupon by the appellants to show that the properties were held to beMathruka properties left by Khurshid Jah, were all not findingsErecorded under Issue Nos. 7(a) and 7(b). They were either part ofthe pleadings or part of the findings recorded under Issue No. 6(b),which related to the report of the Mirza Yar Jung Committee withparticular reference to who constituted the surviving legitimate heirs.Therefore, the reliance placed by the appellants on some portions of theFjudgment dated 28.06.1963, to say that the property was held to beMathruka, is misplaced.

151. For claiming that the suit properties were Mathrukaproperties, reliance is placed by the appellants also upon:- •The sanad dated 03.12.1877; G

•GOMS No.1106 dated 06.06.1959 issued by the State ofAndhra Pradesh ordering an Inam Enquiry; •The orders passed by the Nazim Atiyat Court first on11.09.1959 and then on 30.10.1968; and H•The Muntakhab issued by the Commissioner on 14.02.1983.

152. But we do not know how the appellants are placing relianceupon these documents in support of the contention that the propertiesleft behind by Khurshid Jah are Mathruka properties. If we have a lookat the chronology of events, it may be seen that the sanad relied uponby the appellants merely state as follows:- “It is stated that Nazra (i.e. the Farm Land) of Hafiz Peth andMazra (i.e. the Farm Land) of Hydernagar, as per the oldboundaries, out of Sivar (i.e. Limits) of village Miyanpur of thesaid Parganna Sarka and of the said Sba with the Nahasil i.e., theLand Revenue assessment of Rupees One thousand one hundredand thirty four and annas ten, given in lieu of Mazna Timmaeepalliof Sivar of Village Amir Khanguda of Pargana.

Ibrahimpatan which has been included in “Khalsa” i.e., inGovernment lands and the Land of Khurshid Nagar which hasgone under Railway Road, both of which had belonged to KhurshidJah as his purchased ones (i.e. being his ‘Zar Kharid i.e. purchasedlands) and ‘Kharij’ ‘Jama’ i.e. excluded from Government demand.Hence from the commencement of the year 1286 Fasli weredetermined under the heading ‘Inam Altamgha’ and Kharij” Jama’(i.e. excluded from Government demand) in the name of the saidBahadur i.e. Khurshid Jah Bahadur and his descendants andsuccessor without the condition of Asami i.e. without naminganyone particularly, along with the remission of ‘Chowth’ etc items.You, by contracting the Naib of the said Bahadur i.e. the Deputyof Khurshid Jah Bahadur, should continue to make payment ofthe due amount of revenue assessment, in time and at the season.Treating this to be a strict order i.e., ‘Takeed’ in this matter, actionbe taken as stated above.”

153. The sanad merely states that the Government lands andland of Khurshid Nagar were acquired for the Railway Road and thatthe acquired land was the purchased land of Khurshid Jah. If on accountof the said statement, the land has to be construed as Mathruka, we donot know how and why after the death of Khurshid Jah these lands alsowent into the hands of Paigah Committee. In any case, these are thequestions which could not have been decided by the Court in a suit forpartition.

154. The order of the Nazim Atiyat dated 30.10.1968 and theMuntakhab issued by the Commissioner on 14.02.1983 could not have A

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Abeen produced before the Trial Judge in CS No.14 of 1958, as thesedocuments came into existence after the judgment and preliminary decreedated 28.06.1963.

155. It must be remembered that the entire basis of the claim ofthe appellants is that as per the preliminary decree these properties wereBMathruka properties. But the same is not borne out by the findingsrecorded by the Trial Judge in 27 pages of his judgment dated 28.06.1963on Issue Nos. 7(a) and 7(b).

156. Much was sought to be made, out of the finding recorded bythe Nazim Atiyat Court that the lands in Hafeezpet and HydernagarCincluded at Serial Nos.380 and 381 in the notification as per Appendix‘F’ to the order of Nazim Atiyat was Inam-al-Tamgha. The annexureto the order of the Nazim Atiyat describes what Inam-al-Tamghais. Itreads as follows:- “1. The villages of S.No.380 and No.381 have been verified as“INAM AL-TAMGHA” in the name of Khurshid Jah BahadurDas per “KAIFIYAT-I-JAGIRDARAN” of 1296H.

The word “Tamgha” means “Royal Charter.” In the documentsused for grant of Jagir or Inam to the Jagirdars or anyone else,there used to be a checklist of information about the Jagir/Inam/EGrant, to describe its nature, labelled as “Type of Jagir/Inam/Grant”of land. The Jagir granted to Nawab Khurshid Jah Bahadur was“Inam-al-Tamgha”, granted to him either in recognition of hisservices or in lieu of any Jagir/land or plot of land acquired by theGovt. out of his personal property for any specific purpose likelaying of road/railway line or construction of any public facilityFetc.”

157. As we have stated elsewhere, the order of the Nazim Atiyatwas not before the Trial Judge. The Trial Judge did not record a findingthat it was Inam-al-Tamgha. In any case, it was only a suit for partition.

158. Even if we assume that it was Inam-al-Tamgha, then aGquestion arises as to whether the same stood abolished after the adventof the Hyderabad Abolition of Inams Act, 1955 (Act No.VIII of 1955)[17].This Act defines the word “Inam” under Section 2(1)(c) to meanthe land held under a gift or a grant made by the Nizam or by any Jagirdar, holder of a Samsthan or other competent grantor andcontinued or confirmed by virtue of a Muntakhab or other title deed,with or without the condition of service. Therefore, if at least the orderof Nazim Atiyat and the Muntakhab had come into existence beforethe preliminary decree and they had been produced as exhibits in thesuit, the Trial Judge could have had an opportunity to apply his mind tofind out the effect of the 1955 Act on Inam-al-Tamgha.

159. Since everyone focused attention only on Hyderabad JagirAbolition Regulations, 1948 and a contention was raised that the personalproperties of the Jagirs were exempt under Section 18, no one everexamined the impact of 1955 Act. Even if the property in question escapesthe guillotine under the Jagir Abolition Regulations, it may meet its fateunder the 1955 Act.

160. Therefore, we hold on Issue Nos.(ii) and (iii) that theSingle Judge as well as the Division Bench (in the impugnedjudgment) were right in holding that the properties were notestablished to be Mathruka properties. The effect of the order of theNazim Atiyat was not examined by the Trial Judge. In any case,such an examination had to be done independently and not in apartition suit, keeping in view, the1955 Act and various subsequentenactments relating to agricultural land reforms and urban landceiling.

Issue No.(v):

Whether the claims of the claim petitioners stoodestablished?

161. It was contended by Shri Gopal Sankaranarayanan, learnedsenior counsel for the appellants that the claim petitioners (obstructioniststo the execution) could not produce a single scrap of paper to show howthey derived the title to the portions of land in Survey No.172 ofHydernagar.

162. But the said contention does not appear to be wholly correct.Paragraph 58 of the order of the learned Single Judge dated 26.10.2004,a portion of which is extracted in the impugned judgment of the DivisionBench, states that these claim petitioners had filed originals or certifiedcopies of the pattas granted in favour of their predecessors-in-title.From paragraph 59 up to paragraph 61, the learned Single Judge dealtwith Issue No.4 as to whether patta was granted in favour of Boddu A

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AVeeraswamy and others. He also dealt with additional Issue No.2 asto whether the claimants have otherwise perfected title by adversepossession. The learned Single Judge recorded that Boddu Veeraswamyand others were granted pattas in the year 1947 and that since thesedocuments were more than 30 years old, no further proof of thesedocuments was necessary in view of Section 90 of the Evidence Act,B1872. The learned Single Judge also recorded that there was ampleevidence in the form of sethwar, faisal patti, jamabandi, tax receiptsand proceedings before various authorities. Eventually, the learnedSingle Judge concluded in paragraph 61 of his judgment that even ifthe documents relied upon by the claimants are found to be defective,Cthe possession of the claimants have become adverse to the appellantsherein.

163. Assailing the said finding, it was contended by Shri GopalSankaranarayanan, learned senior counsel for the appellants that thepresumption under Section 90 will apply only when an original documentDis produced and only after it is proved that it has come from propercustody.

164. But the Explanation under Section 90 makes it clear that nocustody is improper if it is proved to have had a legitimate origin or thecircumstances of the particular case are such as to render such an originEprobable.

165. In any case, the learned Judge was not dealing with a titlesuit. Assuming that the claim petitioners could not produce documents toprove flow of title, they were admittedly in possession and they weresought to be dispossessed through the District Court, Ranga ReddyDistrict.F

166. When the entire claim of the appellants that the propertieswere Mathruka properties inheritable by the legal heirs had failed, thequestion of executing a decree on the strength of the plea that the propertyis a Mathruka property does not arise.G167. It was argued by the learned senior counsel for the appellants G167. It was argued by the learned senior counsel for the appellantsthat the High Court wrongly relied upon sub-sections (2) and (3) ofSection 86 of the Hyderabad Land Revenue Act, 1317 F. (1907 A.D.)to provide pattadar status to the claimants. It was pointed out by thelearned senior counsel that sub-sections (2) and (3) of Section 86 wereomitted by the A.P. Adaptation Order, 1957.H

168. But the above argument does not advance the cause of theappellants. The moment the claim of the appellants that it was aMathruka property fails, the appellants lose their claim to property. It isonly after they establish successfully their claim to title, that the burdenshifts on the claimants.

169. An original Map of Hydernagar verified by the Survey andLand Records Department was sought to be produced before us to showthat the land in Survey No.172 could not have been sub-divided into 24/25 parts in the year 1978-79, as contended by the claim petitioners. Butthis Map, secured recently, was not before the learned Single Judge orthe Division Bench. Therefore, we cannot look into the same to test thecorrectness of the impugned judgment.

170. Moreover, the argument that Survey No.172 could not havebeen sub-divided into 24/25 parts in the year 1978 is a self-defeatingone. While setting up a claim to title, some of the appellants and theirpredecessors relied upon a report of the Receiver-cum-Commissionerand an order passed by the Trial Judge in Application No.139 of 1971dated 31.01.1976. It was under this document that defendant Nos.50, 51and 52 as well as defendant No.116 claimed title to some portions of theland sub-divided in Survey No.172.It is true that Cyrus/Goldstone/Trinitydid not rely upon the order in Application No.139 of 1971. They claimtitle from defendant Nos.157 and 206 but their claim could be tracedonly to the scheme of partition prepared by the Receiver-cum-Commissioner. It was either based upon the division purportedly madeby the Revenue Divisional Officer under orders of the Collector in termsof Section 54 CPC or on the basis of the scheme submitted by theReceiver-cum-Commissioner. Defendant Nos. 51 and 52 are the legalheirs of defendant No.1. The appellants Cyrus/Goldstone/Trinity couldnot have had any claim, but for the purchase of 80% of undivided sharesby HEH the Nizam, later impleaded as defendant No.156. Therefore, itis clear that the predecessors of the appellants rely upon these very sub-divisions, but the appellants negate the same. Thus, the appellants areguilty of approbating and reprobating.

171. The predecessors of the appellants have had knowledge thatfaisal patti were recorded in the name of the claim petitioners in 1978itself. Even the Receiver was aware of this, as seen from the letterwritten by the Receiver on 09.04.1980 to the Collector. Yet the Receiverinformed the Court that possession of the land in Survey No.172 could A

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Abe granted to defendant Nos.157 and 206. The report of the Receiver-cum-Commissioner in this regard and the order passed thereon bythe Court dated 20.01.1984 for handing over possession, is shocking,in the light of the fact that the Receiver himself recorded in hisletter dated 09.04.1980 that faisal patti stood in the name of theclaim petitioners. Therefore, it is too late in the day for the appellantsBto question as to how the claim of the claim petitioners stood established.We accordingly answer this issue No. (v) in favour of the claim petitioners.

Issue No.(vi) :

Whether the State of Telangana has any legitimate claimCand whether any such claim would still survive after a series ofsetbacks to the State Government in the Court room?

172. In paragraph 244 of the impugned judgment, the High Courtrecorded a finding that pattas were granted to cultivating Ryots prior to1948 and that therefore the land did not vest in the State GovernmentDafter the Hyderabad Jagir Abolition Regulations. The High Court wenton to hold further that the Revenue Department of the subsequent StateGovernment accepted these pattas as genuine and implemented thesethwar issued in 1947 and faisal patti issued in 1978-79.

173. Following the aforesaid finding, the High Court declared inEparagraph 414(d) that the land did not vest in the State Governmentafter the Hyderabad Jagir Abolition Regulations. Aggrieved by such afinding and conclusion, the State of Telangana originally came up withan application in I.A. No. 75869 of 2022 to implead themselves as partiesto SLP (Civil) Nos. 2373-2377 of 2020. But subsequently, the State hasfiled an independent appeal in SLP (Diary) No. 19266 of 2022.FTherefore, the application for impleadment is unnecessary andhence it is dismissed.

174. Coming to the appeal filed by the State of Telangana, it isseen from the impugned judgment that the State was not a party beforethe Division Bench of the High Court. Therefore, the aforesaid findingsGare not binding upon the State of Telangana. In fact, the State of Telangananeed not have filed any appeals against the impugned judgment, as thedeclaration in paragraph 414(d) should be understood as a finding withregard to the claim of the claim petitioners qua the appellants.

175. Since the State of Telangana has come up with appeals, theHappellants (decree holders) as well as the claim petitioners have taken advantage of the same to launch an attack on the State on the groundthat the State has lost its claim at least in three earlier rounds and thattherefore they cannot be given one more life. It was pointed out that theState moved an application way back in 1982 for amendment of thepreliminary decree and for the deletion of Item Nos. 35-38 and 40 ofPlaint Schedule IV, but the same was dismissed by the High Court by anorder dated 18.12.1982. The appeal filed by the State in OSANo.1 of1985 was dismissed on 24.12.1999. The special leave petition filed againstthe same was withdrawn on 05.05.2000 with liberty to file a regularappeal against the preliminary decree. But the appeal so filed in the year2000 against the preliminary decree was dismissed on the ground ofdelay of 38 years. The said order was confirmed by this Court. Therefore,it is contended that the fate of the claim of the State should be sealed atleast now.

176. But we must remember that what is sauce for the goosemust be a sauce for the gander. If in a suit for partition, the title to aproperty cannot be decided in favour of the parties claiming partitionqua strangers, the same logic would apply even to the claim petitionersqua the State Government. As rightly contended by Shri C.S.Vaidyanathan, learned senior counsel for the State, lot of issues remainunresolved in this regard. There was no occasion for the Court so far, toconsider the effect of the 1955 Act. Assuming that the claim petitionershad title to a portion of the land in Survey No.172 of Hydernagar (roughlyworking out to about 11 acres out of a total of acres 196.20), the questionas to who holds title to the remaining part of the land will still remain atlarge, if the assignees of the decree go out. If the appellants have no titleto the rest of the lands on account of the Jagir Abolition Regulations andif the claim petitioners have title only to one portion of the land on accountof the pattas granted prior to 1948, there must be somebody who ownsthe remaining extent of land. Assuming that somebody else owns theland, the effect of agricultural land reforms and urban land ceilingenactments were still there to be considered.

177. But as we have stated earlier, we are not deciding the title toland in these proceedings. Therefore, all that we would hold in answerto Issue No. (vi) is that the finding recorded in paragraph 244 andthe conclusion reached in paragraph 414(d) of the impugnedjudgment, is not binding on the State Government.

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APart-V:

Appeals by persons whose impleadment applications weredismissed by the High Court, but whose cases are similar to thatof the claim petitioners

178. As many as 24 impleadment applications were dismissed byBthe Division Bench of the High Court in the impugned judgment, on theground, that no third party can implead in a claim petition filed bysomebody else and that the only remedy of such parties is to file separateclaim petitions.

179. All the 24 impleadment applications fall under differentCcategories namely:

(i) those claiming to be in possession of a portion of the landrepresenting the half share purportedly purchased by Cyrus/Goldstone/Trinity in Survey No.172 of Hydernagar;

(ii) those who claim to be in possession of a part of the land inthe other half of Survey No.172 of Hydernagar; D

(iii) those who claim to be in possession of lands in other surveynumbers;

(iv) the Asset Reconstruction Company which claims to be theEmortgagee; and

(iv) those who filed applications for impleadment in OSA No.59of 2004.

180. Out of the aforesaid categories of persons whose impleadmentapplications were dismissed, the case of the Asset ReconstructionFCompany has been dealt with by us in the next part of the judgment.

181. Insofar as the other persons whose impleadment applicationswere dismissed are concerned, we do not know why they considerthemselves to be affected by the impugned judgment. In paragraph 414(e)of the impugned judgment, the Division Bench of the High Court hasGheld the entire order of the previous Bench dated 23.06.2006 to be voidas a consequence of this Court setting aside the same on the principle ofcoram non judice. In paragraph 414(f), the High Court had declared theentire preliminary decree as regards the lands in Hydernagar village(not confined to any particular survey number) as void ab initio. InHparagraph 414(g), the order dated 20.01.1984 in Application No.266 of 1983 and the order dated 28.12.1995 in ApplicationNo.994 of 1995, have been held to be inexecutable not only againstthe claim petitioners but also against third parties. In paragraph414(h), the High Court has declared even the final decree to benull and void. In paragraph 414(i), the order dated 29.03.1996 in EPNo.3 of 1996 passed by the District Court and the Bailiff’s Report dated19.04.1996 have been held to be non-existent and null and void notonly as against the claim petitioners but also as against any thirdparty. In other words, despite the dismissal of the impleadmentapplications, the High Court has protected the interest of persons againstwhom the decree is sought to be executed. In any case, those personswho have identical claim as the obstructionists, who have filedindependent appeals against the impugned judgment will have thebenefit of the judgment. But the benefit of this judgment will notinure to (i) those third parties claiming title under any of the partiesto CS No.14 of 1958 and (ii) those claiming to have decrees orassignment of decrees in CS No. 14 of 1958.

Part-VI:

Appeals by non-parties to the impugned judgment,challenging only one portion of the impugned judgment

182. A few individuals, namely Sameena Kausar and four others,all of whom are the daughters of late Mirza Mazahar Baig, have comeup with separate appeals against the judgment in OSA Nos.54, 56, 58and 59 of 2004, challenging (as per paragraph 1 of the Civil Appeals)only that part of the impugned judgment found in paragraph 414(f), bywhich the Division Bench of the High Court declared the preliminarydecree to be vitiated by fraud.

183. Similarly, one Sahebzadi Hameedunnissa Begum, wife oflate Nawab Ghousuddin @ Mohd. Ghouse Mohiuddin Khan, has comeup with a separate appeal challenging the decision in OSA No. 54 of2004. As seen from paragraph 1 of the Civil Appeal, this appellant alsochallenges only that portion of the impugned judgment found in paragraph414(f).

184. The appellants in these appeals were not parties to theimpugned judgment of the High Court. Their claim is that defendantNo.52 in the suit was one Nawab Ghousuddin @ Mohd. GhouseMohiuddin Khan. His wife Sahebzadi Hameedunnissa Begum was A

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Adefendant No.58. Ghousuddin Khan was the son of the first defendant.It is the case of the appellants that Ghousuddin Khan (defendant No.52)was allotted land of the extent of acres 62.02 guntas in Survey No.172of Hydernagar by the orders of the High Court in Application No.139 of1971 and Application No. 185 of 1973. According to the appellants, theBGovernment accepted the report of the Nazim Atiyat Court dated30.10.1968 and issued Muntakhab No.4 of 1983 dated 14.02.1983declaring that Ghousuddin Khan and his two brothers were entitled to 2/5 share in Hydernagar village. Thereafter, Ghousuddin Khan (defendantNo.52) gifted the land of the extent of acres 60.00 guntas in favour ofMahaboob Baig, as seen from the confirmation document datedC19.12.1978.Sameena Kausar and others (appellants in four Appeals)are the granddaughters of Mahaboob Baig. They, along with other legalheirs of Mirza Mahaboob Baig claim to have inherited the land of theextent of acres 60 in Survey No.172 of Hydernagar. Thereafter, theyalso sold away acres 30 out of the total extent of acres 60.00 to M/s.DJayaho Estates.

185. To put in a nutshell, Sameena Kausar and four others, whoare the appellants in four appeals, claim title to the land of the extent ofacres 60.00 in Survey No.172 of Hydernagar, by virtue of a gift made byGhousuddin Khan (defendant No.52). Sahebzadi Hameedunnissa BegumEwho is the appellant in one appeal was defendant No.58 in the suit. Allthese appellants are aggrieved, by the declaration contained in theimpugned judgment that the preliminary decree is vitiated by fraud andhence null and void.

186. Interestingly, paragraph No.1 of the Civil Appeals filed byFthese persons expressly states that the appeals are confined only to achallenge to paragraph No. 414(f) of the impugned judgment. But in thecourse of arguments, Shri V.V.S. Rao, learned senior counsel appearingfor the appellants also assailed paragraph Nos. 414(c) and 414(d) of theimpugned judgment. In paragraph 414(c), the High Court declared thatGthe appellants before the High Court had failed to establish that the landin Hydernagar village was the Mathruka property of Khurshid Jah. Inparagraph No.414(d), the High Court declared that the land in Hydernagarvillage was Jagir land, but prior to 1948 pattas were granted to cultivatingRyots and that therefore title to the land passed on to the cultivatingRyots before 1948 itself.H

187. But as we have observed elsewhere, the High Court wascompelled to hold that the preliminary decree was vitiated by fraud, dueto certain circumstances. The way in which a very innocuous suit forpartition was converted into a suit on title, the way in which tens ofhundreds of final decrees came to be passed solely on the basis ofcompromises entered into between few of the parties, the way in whichportions of the decree were assigned and/or sold to third parties, theway in which directions were obtained from the High Court to theRevenue Authorities for effecting mutation, the way in which possessionwas claimed to have been taken, through or otherwise than throughexecution proceedings even before the passing of the final decree,demonstrated that the process of law was abused and misused. Todaythe position is that any property in the city of Hyderabad and some partsof Telangana can be traced to some property included in Plaint ScheduleIV. Plaint Schedule IV included villages and villages without surveynumbers and boundaries. Even today, lot of final decree applications arepending in respect of portions of properties described in the suit schedule.Any number of compromises, any number of final decrees and anynumber of executions have taken place in CS No. 14 of 1958. As rightlycontended by Shri C.S. Vaidyanathan, learned senior counsel appearingfor the State what started off as a civil suit (CS) actually turned out to bea civil scandal. Instead of building castles in the air, the parties theretowere actually building castles out of CS No.14 of 1958.

188. The contention of Shri V.V.S. Rao, learned senior counsel isthat the preliminary decree has already attained finality, with the Stateof A.P. filing an application for deletion of Item Nos.35 to 38 and 40 ofPlaint Schedule IV, from the preliminary decree. The said applicationwas dismissed on 18.12.1982. The appeal arising out of the same inOSA No.1 of 1985 was dismissed on 24.12.1999. Though the State fileda Special Leave Petition, the same was withdrawn on 05.05.2000, butwith liberty to go back to the High Court. On the basis of the liberty sogranted, the State again filed an appeal in OSA SR No.3526 of 2000against the preliminary decree. But the same was dismissed by theDivision Bench of the High Court on 07.02.2001. The Special LeavePetition arising out of the same in SLP (C) Nos.10622-23 of 2001 wasdismissed by this Court on 16.07.2001. Therefore, it is contended byShri V.V.S. Rao, learned senior counsel that a preliminary decree whichhad attained finality, cannot be challenged subsequently, as held by this AB

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ACourt in Venkata Reddy vs. Pethi Reddy[18]. The learned senior counselalso drew our attention to the observation made in Narayan Sarma(supra) that no appeal having been made against the preliminary decree,it had attained finality.

189. But as we have pointed out earlier, the judgment andBpreliminary decree dated 28.06.1963 and whatever happened subsequentthereto, were not in accordance with, (i) the procedure to be followed ina partition suit; and (ii) the scope of enquiry in a suit for partition.

190. A careful look at the way in which the proceedings in CSNo.14 of 1958 progressed would show that the High Court followed aCseparate Code for itself and not the Code of Civil Procedure, 1908.

191. It must be remembered that Order XX Rule 18 of the Codeof Civil Procedure, 1908, lays down a procedure to be adopted by aCourt while passing a decree in a suit for partition. There are two sub-rules to Rule 18 of Order XX. As per the first sub-rule, the Court passingDa decree for partition may direct the partition or separation to be madeby the Collector or any gazetted subordinate deputed by him, if the decreerelates to an estate assessed to the payment of revenue to theGovernment. This shall be done, after first declaring the rights of severalparties interested in the property. Under the second sub-rule, the Courtmay, if it thinks that the partition and separation cannot be convenientlyEmade without further enquiry, pass a preliminary decree declaring therights of several parties and giving such further directions as may berequired, if the decree relates to any other immovable property not coveredby sub-rule (1).

192. Obviously, the preliminary decree passed on 28-06-1963 inFCS No.14 of 1958 did not belong to the category indicated in Order XXRule 18 (1). It belonged to the category mentioned in Order XX Rule 18(2).

193. As to what should be done in such cases, is provided in OrderXXVI Rule 13 of the Code. Order 26 Rule 13 provides that where aGpreliminary decree for partition has been passed, in any case not coveredby Section 54 {and Order XX Rule 18 (1)}, the Court should issueCommission to such a person as it thinks fit, to make partition andseparation according to the rights as declared in such a decree. The Commissioner so appointed should conduct an enquiry, divide the propertyinto as many shares as may be and allot such shares to the parties,awarding wherever required and authorized, such sums to be paid forthe purpose of equalizing the value of the shares, under Order XXVIRule 14 (1). The Commissioner should then file a report into Court undersub-rule (2) of Rule 14 of Order XXVI. The Court may give anopportunity to the parties to file objections to the report and thereafterconfirm, vary or set aside the recommendations made in the report ofthe Commissioner. After this is done by the Court, a decree should bepassed by the Court under Order XXVI Rule 14 (3) of the Code.

194. Therefore, in a case of partition and separate possession notcovered by Section 54 of the Code, a preliminary decree is first passedin terms of Order XX Rule 18 (2) of the Code, a Commissioner isappointed in a subsequent proceeding under Order XXVI Rule 13 andon the basis of his report, a final decree is passed under Order XXVIRule 14 (3) of the Code. Thereafter, the possession of such property, ifit is an immovable property, is taken by executing such final decree interms of Order XXI Rule 35 of the Code.

195. Therefore, the question of specific immovable properties orspecifically identified portions of immovable properties getting allottedto any person merely holding a preliminary decree with respect to anundivided share does not arise. A preliminary decree in a suit forpartition merely declares the shares that the parties are entitled toin any of the properties included in the plaint schedule and liable topartition. On the basis of a mere declaration of the rights that takeplace under the preliminary decree, the parties cannot trade in, onspecific items of properties or specific portions of suit scheduleproperties. Since there are three stages in a partition suit, namely (i)passing of a preliminary decree in terms of Order XX Rule 18(2); (ii)appointment of a Commissioner and passing of a final decree in terms ofOrder XXVI Rule 14 (3); and (iii) taking possession in execution ofsuch decree under Order XXI Rule 35, no party to a suit for partition,even by way of compromise, can acquire any title to any specific item ofproperty or any particular portion of a specific property, if such acompromise is struck only with a few parties to the suit.

196. In fact, Sameena Kausar and others stake claim to the landof the extent of acres 60.00 in Survey No.172 of Hydernagar, on thebasis of a gift made by defendant No.52. Even admittedly, Sameena AB

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AKausar and others have sold half of that land way back in 1997 to M/sJayaho Estates. Yet Sameena Kausar and others have come up withappeals.

197. Be that as it may, a look at the Memorandum of Oral Giftdated 19.12.1978 executed by Ghousuddin Khan (defendant No.52)Bshows that the said document purports to be a record of the oral gift(hiba) already made on 10.10.1978. This Memorandum of Oral Giftdeclares that the donor have also delivered possession of the giftedproperty to the donee. Interestingly, this Memorandum of Oral Gift doesnot contain a Schedule of property, but contains very strangely, theboundaries alone. It will be useful to extract the last part of thisCMemorandum of Oral Gift dated 19.12.1978. It reads as follows:- “Today on 19[th] December 1978 I have confirmed the oralgift made on 10[th] October 1978 in favor of the Donee and executedthis Memorandum of gift in presence of the following witnesses.

DHence these few words are written by me as aMEMORANDUM OF GIFT so that it may remain as an authorityand used at time of need.

Dated : 19[th] December 1978.

Boundaries:ENorth: Nizampet village

South: Bombay High way

East: Hydernagar village,

West: Survey No. 28land of Jeelani Begum.F

Sd/-DonorGhouse Mohiuddin Khan.

Sd/- witnessSd/- witness”

198. It is true that in the body of the Memorandum, the donorclaims to be the owner in possession of the land measuring acres 60 inGSurvey No.172 of Hydernagar. But Survey No.172 of Hydernagar hasland of a total extent of acres 196.20. The claim of defendant No.52 toacres 60 out of the total extent, is on the basis of an order purportedlypassed first on 31.01.1976, in Application No.139 of 1971. But the onlyorder passed in this application is to the effect that the parties have notbeen able to agree upon the allotment of shares and that therefore, theH

matter had to be forwarded to the Collector under Section 54 CPC. Butall of a sudden, a final report filed by one P. Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the basis of a compromise decreein ApplicationNo.185 of 1973. In the table contained in the said finalreport, Survey No.172 is shown to have been sub-divided into 25 differentparts bearing Survey Nos.172/1 to 172/25. What is shown therein tohave been allotted to defendant No.52 were the following:

199. Interestingly, the order passed in Application No.139 of 1971is dated 21.01.1976. If pursuant to the said order, Survey No.172 hadbeen sub-divided and different parcels of land in various sub-divisions ofSurvey No.172 stood allotted to defendant No.52, the Memorandum ofGift dated 19.12.1978 should have contained all these sub-divisions ofsurvey numbers and a proper description. Without giving the sub-divisionnumbers of Survey No.172 and without describing different parcels ofland as per the allotment allegedly made by the Advocate Commissioner,the Memorandum of gift proceeds to mention mere boundaries.Interestingly, Northern boundary is stated to be Nizampet village, Southernboundary is stated to be Bombay Highway and Western boundary isstated to be Survey No.28 belonging to Jeelani Begum. Therefore, theentire claim made by persons claiming under defendant No.52, appearsto be a hoax.

200. In fact, Shri V.V.S. Rao, learned senior counsel attempted totrace the title of the appellants, to the report of the Nazim Atiyat Courtand the Muntakhab issued by the Commissioner of Survey, Settlementsand Land Records. But as we have already pointed out, the suit was notone for title.

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A201. Interestingly, the appellants in these appeals represented byShri V.V.S. Rao, learned senior counsel, also attack the claim made byGoldstone/Trinity, on the ground that the sale deed dated 23.02.1967executed by Nizam through his Constituted Attorney C.B. Taraporwalain favour of F.E. Dinshaw Company is not valid. The contention in thisregard is that though the Nizam executed a power of attorney onB17.11.1962, he became seriously ill and his condition deteriorated on22.02.1967 and that he was put on oxygen. The sale deed by his poweragent was prepared on 23.02.1967. The Nizam passed away on24.02.1967. But the sale deed was presented for registration byTaraporwala on 17.03.1967. Therefore, according to the appellants, theCsale made by the Agent after the termination of his agency under Section201 of the Indian Contract Act is wholly invalid.

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202. If what the appellants say is true, no marketable title couldhave passed on from Nizam to Cyrus to Goldstone. Therefore, it is notmerely those claiming under defendant No.52 but also Cyrus/Goldstone/DTrinity, should sink together.

203. Appearing along with Shri V.V.S. Rao, learned senior counsel,for some of the appellants, it was contended by Shri K.S. Murthy, learnedsenior counsel that Hydernagar village came to be declared as a grantvillage and that it was covered by Altamagha which is a Royal decree.EThe learned senior counsel also drew our attention to the Inam enquiryand the order of the Revenue Board and the Muntakhab.

204. But as we have stated earlier, what was in hand was a suitfor partition and all parties have not only created confusion but alsostarted fishing in troubled waters.

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205. Shri V.V.S. Rao, learned senior counsel also appears foranother set of appellants, namely Fareeduddin Khan and two others,who have come up with a challenge to the impugned judgment. Theseappellants claim title to the land of the extent of acres 30.00 in SurveyNo.145/2, acres 62.00 in Survey No.145/1 and acres 30.00 in SurveyGNo.163/3 of Hydernagar village. There are three appellants in thesefour appeals arising out of SLP (C) Nos.8888-8891 of 2022. But appellantNo.2 has sold the land of the extent of acres 42, out of the total extent ofacres 62 in Survey No.145/1 to a Co-operative Housing Building Society.Appellant No.3 claims to have sold the entire extent of acre 30.00 inSurvey No.163/3 of Hydernagar village to third parties.H

206. We do not know how persons can sell identified parcels ofland purportedly allotted to them, out of undivided shares of land in apartition suit in which final decrees and Receiver’s reports galore.

207. The argument of Shri V.V.S. Rao, learned senior counsel onbehalf of these appellants who claim to be the legal heirs of defendantNo.1, is that in a dispute arising out of claim petitions under Order XXIRules 97 to 101 CPC relating to land in Survey No.172, the High Courtcould not have set at naught the transactions relating to Survey Nos.145and 163.The declaration that the preliminary decree is vitiated by fraud,has affected the claim of these appellants to other lands in Survey Nos.145 and 163 and hence these appellants have come up with a limitedchallenge to the impugned judgment.

208. All that we can say in response to this argument is that ifparties can hoodwink the Court and take the Court on a detour up toMysore (two suit schedule properties were located in Mysore) and makea simple suit for partition into a suit for all kinds of disputes, the Courtalone cannot stick to the boundaries.

209. In view of the above, all the appeals arising out of SLP(C) Nos.8884-8887 of 2022, SLP (C) Nos.8888-8891 of 2022 andSLP (C) No.24098 of 2022 are liable to be dismissed. Accordingly,they are dismissed.

Part-VII :

I.A. No. 118143 of 2022 in SLP (C ) No. 8884 of 2022

210. This application has been filed by Mohd. Mustafauddin Khanand another seeking intervention in the appeal arising out of SLP (C)No.8884 of 2022 filed by Sameena Kausar and others.

211. The applicants herein are the legal heirs of Mohd. GhousuddinKhan, who was defendant No.52 in the suit. The applicants claim thatdefendant No.52 was allotted land of the extent of acres 62 in SurveyNo.172 of Hydernagar. Interestingly, they assail the very sale deed dated30.08.1964 under which HEH the Nizam allegedly bought the decretalrights over the said property. According to the applicants, defendantNo.52 never sold his share in favour of HEH the Nizam and KhasimNawaz Jung. They also contend that the sale was not supported by anyconsideration and that in any case the sale is void for want of permissionunder Sections 47 and 48 of the Andhra Pradesh (Telangana Area)Agricultural Lands Act, 1950.

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A212. Another interesting aspect brought to light by these applicantsis that HEH the Nizam died even during the pendency of the applicationfor impleadment in Application No.109 of 1966 and that thereforeeverything that happened pursuant to the impleadment were null andvoid.B213. Unfortunately, the date on which HEH the Nizam was A

B213. Unfortunately, the date on which HEH the Nizam wasimpleaded as defendant No.156, is not brought on record before us. Butit is on record that he died on 24.02.1967. Before his death, his poweragent namely, Taraporwala seems to have executed a sale deed in favourof Dinshaw Company (later Cyrus). However, the sale deed waspresented for registration after the death of the Nizam. Therefore, weCare not in a position to verify the correctness of the contention thatdefendant No.156 (Nizam) died even before he was impleaded as aparty to the suit. If what the applicants say is true, then they may beright in the contention that whatever was done in the name of the deadperson is null and void.

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214. But for want of particulars regarding the date of the orderimpleading HEH the Nizam as defendant No.156, we are not pronouncingour final word on this aspect. Suffice to note for the present that in viewof the dismissal of the appeals filed by Sameena Kausar and others, thisintervention application is liable to be dismissed without getting into theEmerits of their contention.

Part-VIII

I.A. No.112090 of 2022 in Special Leave Petition (C)

Nos.2373-2377 of 2020

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F215. This application has been taken out by an AssetReconstruction Company, by name M/s Rare Asset Reconstruction Ltd.(formerly Raytheon Asset Reconstruction Pvt. Ltd.). They seek toimplead themselves as parties to the Special Leave Petitions, on theground that a company by name of M/s MBS Jewellers Pvt. Ltd. availedcertain credit facilities from the Punjab National Bank, Andhra BankG(now Union Bank of India) and Indian Overseas Bank and that as securityfor due repayment of the loans, third parties created an equitable mortgageby deposit of title deeds relating to plot No.10 in Survey No.172 measuringacres 196.20 guntas in Hydernagar village. The third parties who createdsuch equitable mortgage were M/s India Telecom Finance CorporationHLtd., M/s Sai Anupama Agencies Pvt. Ltd, M/s Keerti Anurag Investments Pvt. Ltd., M/s Jayasree Agencies Pvt. Ltd., M/s Sai KeertiConstructions Pvt. Ltd., M/s Sai Pavan Estates Pvt. Ltd. and M/s GreaterGolkonda Estates Pvt. Ltd. According to the Asset ReconstructionCompany, the deposit of title deeds took place on 25.03.2009. The totalamount due to the consortium of banks was around Rs.550 crores. Itappears that the banks filed applications before DRT, Hyderabad andthese applications are pending. Therefore, the Asset ReconstructionCompany claims that if the mortgagors suffer an order from this Court,it is the public money belonging to the banks that will eventually suffer.

216. Shri Dushyant Dave, learned senior counsel appearing forthe Asset Reconstruction Company contended that irrespective of thedispute between private parties, it is public money which is at stake. Thelearned senior counsel drew our attention to several provisions of theRecovery of Debts Due to Banks and Financial Institutions Act, 1993and the Securitisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002 (SARFAESI Act), in supportof his contention that even the jurisdiction of the Civil Court is barredand that the provisions of these two enactments will override all otherenactments.

217. But there are two major obstacles for the AssetReconstruction Company which is the applicant in this I.A. The first isthat this Asset Reconstruction Company actually filed I.A.No.3 of 2019in OSANo.54 of 2004; I.A.No.3 of 2019 in OSANo.56 of 2004 andI.A.No.4 of 2019 in OSANo.59 of 2004 before the High Court. All theseapplications for impleadment were dismissed by the High Court by theorder impugned in these appeals. Other persons who filed similarimpleading applications which were also dismissed by the High Court,have come up with independent appeals against the entire impugnedjudgment. This is because the order dismissing their impleadmentapplications is part of the operative portion of the whole impugnedjudgment. Therefore, the Asset Reconstruction Company ought to havefiled independent appeals against the dismissal of their impleadmentapplications by the High Court. They cannot now have a piggy-backride on the appeals filed by others.

218. The second difficulty that the Asset Reconstruction Companyhas, is that six different companies created an equitable mortgage bydeposit of title deeds. As per the averment contained in Para 2 ofI.A.No.110290 of 2022, the deposit of title deeds happened on 25.03.2009.

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AWhat is said to have been deposited are the certified copies of the finaldecree in Application No.517 of 1998 in CS No.14 of 1958 dated24.04.1998.

219. We do not know how a final decree in a partition suit andthat too in a notorious suit like CSNo.14 of 1958 could have been takenBto be a document of title which can be accepted by way of equitablemortgage. In any case, the deposit of title deeds is said to have takenplace on 25.03.2009. By this time, the order of the learned Single Judge(L. Narasimha Reddy, J.) dated 26.10.2004 allowing the claims of theobstructionists had come into existence. Though the said order of thelearned Single Judge dated 26.10.2004 was set aside by the DivisionCBench by an order dated 23.06.2006, the said order of the Division Benchhad become the subject matter of the civil appeals even at that time.These civil appeals were eventually allowed by this Court by an orderdated 05.03.2014. We do not know how during this interregnum period,the Banks could have accepted this property as security, despite theDsame being the subject matter of a serious long drawn litigation.

220. In any case, the applications for impleadment made by theAsset Reconstruction Company have been dismissed by the High Courtby the order impugned in these appeals. Without challenging the same,the Asset Reconstruction Company cannot seek to implead themselvesEin the appeals filed by the third parties and the mortgagors. Therefore,I.A. 110290 of 2022, is dismissed.

Part-IX:

I.A. Nos.36417, 36419 and 36422 of 2023 in Special Leave Petition (C) Nos.2373-2377 of 2020F

221. These applications praying respectively for, (i) leave to getimpleaded; (ii) impleadment; and (iii) directions, have been filed by aCooperative Housing Society by name M/s Durga Matha House BuildingConstruction Co-operative Housing Society Ltd. This Society is seekingto get impleaded and is also praying for appropriate directions, in theGappeals arising out of SLP (C) Nos.2373-2377 of 2020.

222. The averments contained in these interlocutory applications,in brief are,

(i) that by virtue of a sale deed dated 23.02.1967, HEH theHNizam sold his undivided half share in the land of the extent of acres 175.06 in Survey No.163 of Hydernagar to Cyrusand Nawab Khasim Nawaz Jung;

(ii) that the sellers and the purchasers were impeladed asdefendant Nos.156, 157 and 206 respectively in CS No.14of 1958;

(iii) that Nawab Khasim Nawaz Jung (defendant No.157) diedleaving behind him surviving, his wife and daughter(defendant Nos.334 and 335);

(iv) that the Receiver-cum-Commissioner and the RevenueDivisional Officer authorized by the District Collector todivide the land under Section 54 CPC, effected division andfiled a survey map and memo on 03.03.1981 before theHigh Court in Application No.139 of 1971;

(v) that as per the memo, the land in Survey No.163 ofHydernagar was allotted to defendant Nos.157 and 206 inhalf shares, as per the orders of the High Court dated08.07.1983 in Application No.31 of 1982;

(vi) that those defendants thereafter executed several deeds ofassignments and sale deeds in favour of third partiesincluding the applicant-Society;

(vii) that the applicant-Society got an assignment of land of theextent of acres 50.00 by the Assignment Deed dated18.04.1987 from Nawab Khasim Nawaz Jung and anotherextent of acres 16.00 under another Assignment Deed ofthe year 1989;

(viii) that the applicant-Society thus became the owner and alsotook over possession of land of the extent of acres 66 inSurvey No.163 of Hydernagar;

(ix) that when some individuals claiming to be the occupants ofsome part of the land started interfering with the possessionof the applicant-Society, the Society filed a civil suit forbare injunction;

(x) that the said suit was tried along with another suit filed byanother Cooperative Society similarly placed, by name IDPLEmployees Cooperative House Building Society Ltd.; A

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A(xi)that by a common judgment dated 16.11.2005, both the suitswere dismissed by the Trial Court;

(xii) that the first appeals arising out of the same are nowpending; B(xiii) that after the impugned judgment of the High Court, one ofthe respondents in those first appeals have taken out anapplication for rejection of the appeal of the applicant-Society on the ground that the entire preliminary decreehas been held by the impugned judgment to be vitiated byfraud;C

(xiv) that upon coming to know of the impugned judgment dated20.12.2019, the applicant-Society filed a petition for reviewbefore the High Court;

(xv) that in the meantime, the applicant-Society also came toDknow about this Court being seized of the appeals arisingout of the very same impugned judgment; and

(xvi) that therefore, the applicant-Society is compelled toapproach this Court by way of an application forimpleadment and application for directions, so that theirErights relating to the land in Survey No.163 of Hydernagarare not affected.

223. Shri Hemendranath Reddy, learned senior counsel appearingfor the applicant herein contended:

(i) that the High Court went overboard in holding the preliminaryFdecree to be vitiated by fraud, after the same had attainedfinality in several proceedings, including those initiated bythe State Government;

(ii) that on the basis of the division made by the RevenueDivisional Officer, in terms of Section 54 CPC and on theGbasis of the report of the Receiver-cum-Commissioner, theland was identified, sub-divided and possession handed over;

(iii) that mutation was effected way back in 1989, but when itwas cancelled, the applicant filed writ petition and got themutation restored;H

(iv) that even the land grabbing proceedings ended in favour ofthe applicant;

(v) that all the appeals that the Division Bench of the HighCourt was dealing with, in the impugned judgment,concerned only the land in Survey No.172 of Hydernagar.

(vi) that by declaring the preliminary decree to be vitiated byfraud, the High Court, under the impugned judgment hasstruck a severe blow to settled issues which have attainedfinality; and

(vii) that the High Court could not have declared the preliminarydecree to be vitiated by fraud, when there were no pleadingswith regard to fraud and that by the order impugned in theseappeals, the High Court has created a cloud over the rightsof third parties over other parcels of land, when those thirdparties like the applicant herein were not even parties tothe impugned judgment.

224. Shri Hemendranath Reddy, learned senior counsel appearingfor the applicant herein also relied upon another judgment of the DivisionBench of the High Court dated 30.03.2021 passed in Writ PetitionNo.20707 of 2018 (batch), wherein the Division Bench clarified that thefindings relating to fraud in the impugned judgment, were confined onlyto land in Survey No.172.

225. We have carefully considered the submissions of ShriHemendranath Reddy. But we are unable to agree with his contentionsfor the following reasons:

(i) Even according to the learned senior counsel, the findingrecorded in the impugned judgment that the preliminarydecree is vitiated by fraud, was confined only to the landin Survey No.172 of Hydernagar. According to thelearned senior counsel, this position was clarified byanother Division Bench (presided over by the samePresiding Judge who authored the impugned judgment)in its judgment dated 30.03.2021 in Writ PetitionNo.20707 of 2018 (batch). In paragraph No.169 of thesaid judgment dated 31.03.2021, the subsequent DivisionBench recorded as follows:

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“169. Whatever observations were made by this Courtin Shahanaz Begum (10 supra) were specifically madeonly in the context of the special facts in relation toSy.No.172 of Hydernagar Village only, and they cannotbe read out of context by the respondents and madeapplicable to land in Hafeezpet Village as well.”

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Therefore, we do not know why the applicant-Society isbefore us;

(ii) In any case, the procedure adopted by the applicant-Societybefore us, is unknown to law. As we have pointed out in theCbeginning, the applicant-Society has come up with threeapplications, praying respectively (i) forleave to getimpleaded; (ii) to implead in appeals arising out of SLP (C)Nos.2373-2377 of 2020; and (iii) for appropriate clarificationthat the observations in the impugned judgment are notapplicable to the land in Survey No.163. In other words,Dwhat the applicant-Society wants us to do, is to clarify ajudgment of the High Court. We do not know under whatprovision of law this Court can clarify the judgment of aHigh Court through an application taken out in a pendingappeal, especially in a matter of this nature. By filing theseEapplications in the appeals filed by their predecessors-in-title, the applicant-Society is either trying to piggyback rideon their vendors or to wriggle their predecessors in title, outof trouble. This cannot be permitted; and

(iii) In any event, the applicant-Society has admittedly filed aFpetition for review of the impugned judgment on the groundthat the same cannot affect their rights in Survey No.163.Therefore, it is not open to the applicant-Society to comeup before us and that too in the form of an application fordirection. Hence these three IAs deserve to be dismissed.Accordingly, they are dismissed.

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CONCLUSION

226. In the light of the above discussion:

(i) All the appeals arising out of SLP(C) Nos.2373-2377 of2020 filed by Trinity Infraventures Ltd. and others are H

dismissed. Consequently, I.A. No. 75869 of 2022 filed byState of Telangana is dismissed.

(ii) All the appeals arising out of SLP(C) Nos.8884-8887 of2022 filed by Sameena Kausar and others are dismissed.Consequently, I.A. No. 118143 of 2022 is dismissed.

(iii) All the appeals arising out of SLP(C) Nos.8888-8891 of2022 filed by Fareeduddin Khan and others are dismissed.

(iv) All the five appeals arising out of SLP(C) Diary No.19266of 2022 filed by the State of Telangana and another aredismissed with the observation that the finding given inparagraph 244 and the conclusion recorded in paragraph414(d) of the impugned judgment, are not binding upon theState Government.

(v) The appeal arising out of SLP (C) No.24098 of 2022 filedby the legal representative of Sahebzadi HameedunnissaBegum is dismissed.

(vi) The appeals arising out of SLP (C) No.2203 of 2022 filedby T. Pandri Natham and others; SLP (C) No.256 of 2022filed by K. Sudhan Reddy and others; SLP (C) No.1584 of2022 filed by G. Aruna Kumari and others; SLP (C) No.980of 2022 filed by G. Rama Krishna Reddy and others; SLP(C) No.8872 of 2022 filed by K. Pardha Saradhi and otherswho have purchased individual plots of land from Satya SaiCo-operative Housing Society Ltd., are dismissed with theobservation that despite the dismissal of their impleadmentapplications by the High Court, they stand protected due tothe preliminary decree and final decree being declared voidand also due to the usage of the words “third parties” inparagraph 414(g) and 414 (i).

(vii) I.A. No.112090 of 2022 in the appeals arising out of SLP(C)Nos.2373-2377 of 2020 filed by the Asset ReconstructionCompany is dismissed, without prejudice to the rightsavailable to the Asset Reconstruction Company to proceedagainst the borrowers and the mortgagors in accordancewith law.

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B

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H

378SUPREME COURT REPORTS

[2023] 8 S.C.R.

A(viii) I.A. Nos.36417, 36419 and 36422 of 2023filed by DurgaMatha House Building Construction Co-operative HousingSociety Ltd.,in the appeals arising out of SLP(C) Nos.2373-2377 of 2020 are dismissed.

The parties are directed to bear their respective costs.

B

Bibhuti Bhushan Bose(Assisted by : Rahul Rathi, LCRA)

Appeals disposed of.

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D

E

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H