M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC.

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A (vi) that the claim petitioners thus became the owners of individual plots. The basis of the claim of the State of Telangana

99Copy pinpoint99. The claim of the State is: B (i) that Khurshid Jah left no Mathruka property at the time of his death in 1902; (ii) that he only had Paigah/Jagir property at that time; (iii) that such Jagir property vested in the State by virtue of Jagir Abolition Regulations, 1949; C (iv) that these facts were confirmed by the Paigah Committee through the then Chief Justice of Hyderabad-Mirza Yar Jung in 1929; (v) that the determination by the Paigah Committee is conclusive and binding on the parties; D (vi) that the findings of the Paigah Committee were further confirmed by the royal prerogative of Nizam, as seen from Farman; (vii) that it is settled law that all Jagir lands vest in the State and E they are inalienable and non-heritable, as opined by two Constitution Benches of this Court in Raja Ram Chandra Reddy vs. Rani Shankaramma 9 and Sikander Jehan Begum vs. Andhra Pradesh State Government10 and two other decisions of this Court in State of Andhra Pradesh (Now State of Telangana) vs. A.P. State Wakf Board11 F and Mohd. Habbibuddin Khan vs. Jagir Administrator, Government of Andhra Pradesh12; (viii) that the State was made party to the suit as defendant No.53 only after defendant No.1 filed a written statement indicating that Item Nos.37 to 40 of the Plaint Schedule IV were taken G over by the State;

9 AIR 1956 SC 319 10 AIR 1962 SC 996 11 2022 SCC OnLine SC 159 12 H (1974) 1 SCC 82

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 335 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

(ix) that as held by this Court in Rangammal vs. A Kuppuswami 13, a suit for partition is not a suit for declaration or determination of title; (x) that the findings recorded as though the properties are Mathruka properties, were a product of collusion on the part of the defendants who originally opposed the suit but who 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 hence no findings recorded therein can be relied upon; (xii) that even the proceedings before the Atiyat Court were not with respect to declaration of title but only for the apportionment 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 Jagir D Abolition Regulations, cannot be gifted away either to the decree holders or to the claim petitioners. Part-IV: Issues arising for consideration

100Copy pinpoint100. A careful consideration of the judgment of the learned Single E Judge and that of the Division Bench impugned herein and a consideration of the rival contentions, would show that the following issues arise for our consideration: - (i) Whether the Division Bench of the High Court was right in declaring that the preliminary decree dated 28.06.1963 F was vitiated by fraud and consequently null and void, especially when there was no pleading and no evidence let in? (ii) Whether the concurrent findings of the Single Judge and the Division Bench of the High Court that Khurshid Jah did G not leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree that has attained finality?

13 (2011) 12 SCC 220 H

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A (iii) Whether the finding recorded in the judgment and preliminary decree that the lands in Hydernagar are Mathruka property is binding upon third parties? (iv) What is the scope of the enquiry under Order XXI Rules 97-101, CPC ? B (v) Whether the claims of the claim petitioners stood established? and (vi) Whether the State of Telangana has any legitimate claim and whether any such claim would still survive after a series of setbacks to the State Government in the Court room? C Issue No. (i) and (iv): (i) Whether the Division Bench of the High Court was right in declaring that the preliminary decree dated 28.06.1963 was vitiated by fraud and consequently null and void, especially when there was no pleading and no evidence let in? and (iv) What is the scope of the enquiry under Order XXI, Rules 97-101, CPC ?

101Copy pinpoint101. As rightly contended by Shri Gopal Sankarnarayanan, learned senior counsel for the assignees of decrees, no one pleaded that the preliminary decree was vitiated by fraud. Allegations of fraud, as rightly contended, require special pleadings in terms of Order VI, Rule 4 CPC.

102Copy pinpoint102. In fact, the impugned judgment of the Division Bench arose out of a challenge to the judgment of the learned Single Judge dated 26.10.2004. In paragraph 19 of his judgment, the learned Single Judge F framed certain issues as arising for consideration. Paragraph 19 of the judgment of the learned Single Judge reads as follows: “19. On the basis of the pleadings of the parties, the following issues and additional issues have been framed in all the applications: G 1) Whether the land covered by S.No.172 of Hydernagar village is the matruka property of late Nawab Kursheed Jha Paigah? 2) Whether the Nizam administration has been prohibited by means of Farman by the Nizam prior to the abolition H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 337 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

of inams from transferring the land in favour of any A persons? 3) Whether the lands in question are inam (Jagir) lands and stand vested in the Government after the abolition of inams (jagirs)? 4) Whether the patta was granted in favour of Boddu Veera B Swamy and others in 1947? 5) Whether the alleged pattas said to have been executed in favour of Boddu Veeraswamy and others are genuine documents or not? C 6) Whether the claimants have been in possession and enjoyment of the property since the time of Boddu Veeraswami (grant of pattas)? 7) Whether the claim is barred by limitation? 8) Whether the judgment and decree in C.S. No.14 of 1958 D is binding on the petitioners/claimants? 9) Whether the claimants have any right, title and interest over the property in question? 10) Whether the claim petition is barred by limitation in view of the remand order of the Supreme Court? E

11) to what relief? Additional Issues: 1) Whether the alleged delivery of possession on 17.4.1996 is not valid illegal and has no legal effect, since, final F decree has not been engrossed on proper stamp paper and property has not been divided by metes and bounds? 2) Whether the claimants have otherwise protected their title by adverse possession? G No issues were framed in Appln. No.994 of 1995. However, issues referred to above will cover the controversy in that application also.”

103Copy pinpoint103. As may be seen from the above issues, fraud was not one of the issues framed nor was there any finding recorded by the learned H

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A Single Judge about fraud. But the Division Bench read such a finding into the order of the learned Single Judge.

104Copy pinpoint104. In addition, the Division Bench, while dealing with the scope of the enquiry under Order XXI Rules 97 to 101 CPC, went into the question (from paragraph 149 onwards) as to whether the issue of fraud, B if raised in a claim petition, can be gone into by the Executing Court. After referring to the decision of this Court in National Textile Corporation (Maharashtra South) Ltd. vs. Standard Chartered Bank14 and the decisions of the Bombay and Calcutta High Court, the High Court held in the impugned judgment that an issue of fraud, if raised in a claim petition, can be gone into by the Executing Court. After C so holding, the High Court first came to the conclusion that the report of the Bailiff dated 19.04.1996 as though possession of the land was taken, was fraudulent. After so holding in paragraph 203, the High Court opined in paragraph 208 that if fraud is borne out from the record of the Court itself, there is no necessity for a separate and specific pleading. To come D to the said conclusion, the High Court drew inspiration from the decision of this Court in Lachhman Dass vs. Jagat Ram and Others15, wherein this Court held that where collusion between the parties is apparent on the face of the record, the absence of specific pleading was immaterial. The High Court then proceeded to hold that specific boundaries and survey numbers of the properties were not indicated in the Plaint Schedule E but the Receiver curiously identified those properties and that when the land 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 the plaintiff to get a decree behind their back was fraudulent and that therefore the preliminary decree as regards the lands in Hydernagar F village was void ab initio. The High Court also found that there was suppression of facts in Application Nos. 994 of 1995 and 266 of 1983 and that such suppression was sufficient to uphold the plea of fraud.

105Copy pinpoint105. But the difficulty with above finding of the High Court is that none of the parties to the preliminary decree challenged the same on the G ground that it was vitiated by fraud. Though persons obstructing execution and making claims in terms of Order XXI, Rules 97 to 101 CPC are also entitled to attack the decree on the ground of fraud, such claim petitioners are obliged to make pleadings as to how fraud is borne out by the records.

14 (2000) 10 SCC 592 H 15 (2007) 10 SCC 448

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 339 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

106Copy pinpoint106. We must remember that persons obstructing or resisting the execution of a decree for possession may fall under different categories. An obstructionist may be one claiming to have been put in lawful possession by one of the parties to the decree itself. An obstructionist may also be a person claiming independent title in himself.

107Copy pinpoint107. In fact, an application under Order XXI Rule 97 CPC is to be filed by the decree-holder (or purchaser in execution of the decree), as can be seen from the statutory provision. Order XXI Rule 97 reads as follows: “97. Resistance or obstruction to possession of immovable property.—(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court D shall proceed to adjudicate upon the application in accordance with the provisions herein contained.”

108Copy pinpoint108. In contrast, an application under Order XXI Rule 99 is to be filed by the person dispossessed of immovable property, by the holder of a decree for possession. E

109Copy pinpoint109. Though by virtue of Rule 101 of Order XXI, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Executing Court and not by a separate suit, any order passed under Rule 101 is subject to the result of a suit where the obstructionist seeks to establish a right.

110Copy pinpoint110. Rules 101 and 104 read as follows: “101. Question to be determined.—All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. H

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A 104. Order under rule 101 or rule 103 to be subject to the result of pending suit.—Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.”

111Copy pinpoint111. It may be of interest to note that while Rule 101 allows the Executing Court to decide all questions including questions relating to right, title or interest in the property, Rule 103 creates a deeming fiction that the orders so passed under Rule 101 shall be deemed to be a decree.

112Copy pinpoint112. Despite Rules 101 and 103, the order passed under Rule 101 is made, under Rule 104, subject to the result of any pending suit.

113Copy pinpoint113. In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un-Nissa Begumwas only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.

114Copy pinpoint114. Take for instance a suit filed for partition by a member of the Hindu Undivided Family. If one of the coparceners or an alienee from such coparcener, claims independent title to one of the properties bought in his individual name, it may be open to the Court while trying the suit for partition to decide whether such a property belongs exclusively to the defendant.To this limited extent, examining the title of a party to the suit schedule property is permissible even in a suit for partition.

115Copy pinpoint115. But in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit.

116Copy pinpoint116. Realising this difficulty, it was contended by Shri Gopal Sankarnarayanan, learned senior counsel for the appellants that the suit was not just a suit for partition simpliciter, but a suit for declaration that the properties are Mathruka properties of late Nawab Khurshid Jah. H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 341 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

He drew our attention in this connection to the relief sought in paragraph A 18(a) of the plaint.

117Copy pinpoint117. At the cost of repetition, we shall extract the relief sought in paragraph 18(a) of the plaint once again as follows: “directing that the properties detailed in Schedule IV which are in the possession of the party as detailed therein and the B other (b) category properties detailed in para (12) above which are in the possession of defendant No.43 and all other properties whatsoever that may be found to belong to Mathruka of the late Nawab Khurshid Jah be divided by metes and bounds and plaintiff be given her 29/1944th share therein.” C

118Copy pinpoint118. Since the relief sought in paragraph 18(a) of the plaint refers to paragraph 12 of the plaint, we may have to take a look at paragraph 12 of the plaint. Paragraph 12 of the plaint (extracted elsewhere) states that as per Farman dated 17.01.1929, the Nizam prevented the distribution of two classes of Mathruka properties and that the list of D properties purchased out of the income of the Paigah, detailed in Schedule 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 tentative value of the suit schedule properties is mentioned as O.S. Rs.7,52,058-

20. The value of the plaintiff’s share namely 29/2944th share, is arrived at in paragraph 13 as O.S. Rs.7,408-1-1. E

119Copy pinpoint119. The way in which the suit claim has been valued and court- fee paid, demonstrates very clearly that it was nota suit for declaration of title to any property. It was only a suit for partition. All the suit schedule properties have been valued at a particular rate and court-fee was paid on the value of the share, of which the plaintiff was seeking partition. If F it was a suit containing a prayer for declaration of title, the court-fee was liable to be paid on the whole value of the property and not on the share sought to be partitioned.

120Copy pinpoint120. Therefore, we are of the view that the preliminary decree dated 28.06.1963 could not have determined the claim to title made G by the legal heirs seeking partition, as against third parties. Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties. H

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121Copy pinpoint121. In fact, we have already noted that as many as 50 issues were framed for trial in the suit. But all these 50 issues were found in the judgment and preliminary decree to revolve only around 10 broad points, both of fact and of law. Those 10 points read as follows: “The questions at issue arising in the suit revolve round the B following ten broad pointes both of fact and of law. I. Whether Nawab Khurshid Jah left any property of the description covered by para 2 of the Farman Ex. P 30 dated 5th Shahabad, 1347 (corresponding to 17-1-1929) and Or.3 clause 9; and what is its extent. C II. Whether that property is liable to be divided amongst the surviving legal heirs in the line of his succession? III. Whether the claim for such division is within time? IV. Who are various heirs? D V. What are the respective rights of those heirs, including the rights of the Amir Paigah who has been in possession of these properties? VI. Is defendant No.1 liable for rendition of accounts and mesne profits, as claimed? E VII. Whether any of the defendants have cause damage or destruction to the Matruka property as alleged by the parties, if so, what is their extent? VIII. Whether they or any of them made any alienation; to what extent, and how the equities in case of transferees F on record be adjusted? IX. Whether the suit is bad for misjoinder of parties or causes of action. X. Whether the court-fee paid is correct.”

122Copy pinpoint122. None of the above 10 points relate to the assertion of the claim of third parties (except the Government) to title to the properties.

123Copy pinpoint123. Therefore, the manner in which the judgment and preliminary decree dated 28.06.1963 were sought to be used, abused and misused by parties to the proceedings as well as non-parties who jumped into the fray by purchasing portions of the preliminary

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 343 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

decree and seeking to execute them through Court, defeating the rights of third parties, is what has prompted the Division Bench of the High Court to hold that the preliminary decree is vitiated by fraud. Though we may not go to that extent, we would certainly hold that, (i) what was a simple suit for partition; and (ii) the incidental finding recorded that the properties were Mathurka properties, have been used by parties and non-parties to assert title to the properties against strangers. This was definitely an abuse of the process of law.

124Copy pinpoint124. There are two more aspects which highlight the abuse of the process of law in this case. They are as follows: (i) The preliminary decree for partition was passed on C 28.06.1963; the Executing Court passed an order on 29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of the Court to deliver possession of the land in Survey No. 172 of Hydernagar to the decree holder; and thereafter a final decree was passed in Application No. 517 of 1998 on 24.04.1998. Normally a final decree follows a preliminary D decree 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 in E.P. No. 3 of 1996 directing the Bailiff of the Court to deliver possession of the land in Survey No. 172 of Hydernagar E was a specimen of a unique kind. It may be recalled that an application was taken out by the Receiver-cum- Commissioner way back in 1973, in Application No. 19 of 1973, praying for a direction to the Collector to hand over possession of the lands in Survey Nos. 145, 163 and 172 of F Hydernagar. On this application, the High Court passed an order on 05.07.1974, directing the Government to hand over symbolic possession of the lands situate in Survey Nos. 145 and 163 of Hydernagar village measuring acres 220 guntas 18 and acres 175 guntas 6 respectively to the Receiver. But insofar as other lands were concerned (i.e., Survey G No. 172), the Court recorded in its order dated 05.07.1974 that the Government was not even in a position to hand over symbolic possession and that therefore it is for the Receiver-cum-Commissioner to take such steps as are available in law. In other words, even symbolic possession H

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A of the land in Survey No. 172 was not possible in the year 1974, but actual possession became possible in the year 1996 after the decrees were sold by way of assignments. We do not know what magic was played by Goldstone, like a philosopher’s stone16, to make this miracle possible. B

125Copy pinpoint125. It is on record that taking advantage of the finding rendered in the judgment and preliminary decree dated 28.06.1963, several assignments of the decree had taken place and the assignees have made several applications seeking a final decree as well as possession of part of the properties described in the suit schedule, on the basis of compromise entered into with the assignors of the decree. The number of final decree applications disposed of by the High Court so far and the number of final decree applications now pending on the file of the High Court bear ample testimony to a gross abuse of the process of law, which has prompted the High Court to brand the preliminary decree as vitiated by fraud and consequently null and void. In fact, we may take judicial notice of the fact that during 2017-19, the High Court constituted a Special Division Bench to hear and dispose of hundreds of such final decree applications filed on the basis of alleged compromises between few parties. Most of them are still pending.

126Copy pinpoint126. Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, we would only say and hold on question Nos. (i) and (iv) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. We also hold that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (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 all diseases and prolong life indefinitely.

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 345 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

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

127Copy pinpoint127. Insofar as the Government is concerned, heavy reliance is placed by the learned senior counsel for the appellants on the fact that the State of Andhra Pradesh was impleaded as defendant No.53 and that they have not only filed the written statement but also examined four witnesses and that therefore the claim of the Government is sealed.

128Copy pinpoint128. It is true that Item Nos.35 to 40 of Plaint Schedule IV were taken up for consideration in the judgment in support of the preliminary decree, under Issue Nos.13(c) and 14(a). It is also true that the Court considered the evidence of DWs 26 and 32 to 34. Eventually, the Court came to the conclusion (in the judgment in support of the preliminary decree) that while Item Nos.38 and 39 had admittedly come from Khurshid Jah’s time, there was no evidence that they were taken over by the Government at the time of integration. Not stopping at that, the D Court recorded a finding in the judgment and preliminary decree that the mere denial of defendant No.1would not defeat the plaintiffs’ claim. Such a finding was recorded in the teeth of a categorical stand taken by defendant No.1 that Item Nos.38 and 39 are in the possession of the State Government. E

129Copy pinpoint129. In fact, all the parties before us admitted that in one portion of the property there is a building housing the Hyderabad Metro Water Works and Sewerage Board. We do not know how despite such an admission, the Government can be said to be an interloper and a meddler.

130Copy pinpoint130. As we have stated elsewhere, it can be seen from the Plaint F Schedule IV which was made part of the judgment and decree dated 28.06.1963,that the property which is the subject matter of the litigation on hand, finds a place at Serial No.32 of Annexure IV to the judgment and decree and it corresponds to Item No.38 of Plaint Schedule IV. The description of this property in the Plaint Schedule IV reads as follows:- G “Hydernagar patta lands. Compact area of 1210 acres”

131Copy pinpoint131. What was included as Item No.38 of Plaint Schedule IV and enlisted at Serial No.32 of Annexure IV to the judgment and decree, did not contain (i) either the survey numbers of Patta lands; or (ii) the boundaries of the land. Column No.4 of the table in Annexure IV to the H

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

132Copy pinpoint132. In fact, the judgment in support of the preliminary decree contains a conundrum. The Court first recorded that 50 issues arose for consideration in the suit. Out of the 50 issues originally framed for consideration, 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 of Schedule IV, the maktas and inam properties and, if so, whether the civil court has no jurisdiction in relation to the same?”

133Copy pinpoint133. The above Issue No.14(a) which directly concerned Item E No.38 of Plaint Schedule IV, was taken up by the learned Judge along with Issue No.13(c), which related to Item Nos. 35 and 36, in which certain office buildings in the possession of the Government were in existence.

134Copy pinpoint134. On these two issues, namely Issue Nos. 13(c) and 14(a), F which were taken up together, the learned Judge rendered the following findings:- (i) that Item Nos. 35 and 36 are office buildings at Shahbad and Bhalki, taken over by the Government after the Jagir Abolition Regulations and that after the States G Reorganisation, these buildings came to be located within the territorial limits of Mysore State and that they had been handed over to the Government of Mysore; (ii) that since these properties have vested with the Government by virtue of the provisions of the Jagir Abolition Regulations, H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 347 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

the parties were not entitled to claim the same as Khurshid A Jah’s Mathruka; (iii) that Item Nos.37, 38 and 40 are within the territorial limits of the district of Hyderabad and Item No.39 is in the district of Nalgonda; B (iv) that no claim was set up by the Government in relation to Item Nos.38 and 39 and the witnesses do not say that they were Makta lands or that they were taken over by the Government; (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 deleted from the Plaint Schedule IV; (vii) that Item Nos.37 and 40 will be available for partition in case the Government released the same as a result of enquiry; D (viii) that enquiry into Inams or maktas is certainly not within the exclusive jurisdiction of the Civil Court; and (ix) that therefore, Issue No.14(a) must be answered in the affirmative and Issue No.13(c) against the plaintiff. E

135Copy pinpoint135. The entire discussion on Issue Nos.13(c) and 14(a) shows that the Trial Court did not actually record a clear finding as to how Item No.38 of Plaint Schedule IV belonged to the family and became liable for 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, on the ground that they were taken over by the Government after Jagir F Abolition Regulations and that those properties had vested with the State of Mysore. Then the Court deleted Item Nos.37 and 40 on the ground that the title to the same was in suspension and that the answer to the question would depend upon the decision of the concerned Authorities. After thus eliminating Item Nos. 35, 36, 37 and 40, the Court simply G jumped to the conclusion that Item Nos. 38 and 39 were available for partition. This was despite the fact that even according to defendant No.1, these items were in the possession of the Government. The logic that the Court applied to Item Nos.35 and 36 were not applied to Item Nos.38 and 39. H

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136Copy pinpoint136. What is interesting is the way in which Issue No.14(a) was framed and the way it was answered. At the cost of repetition, we will

137Copy pinpoint137. extract Issue No.14(a) which reads as follows:- “14(a). Are the properties mentioned in Items 37 to 40 of Schedule IV, the maktas and inam properties and, if so, B whether the civil court has no jurisdiction in relation to the same?” The answer to this question was rendered by the Court as follows: “Issue No.14(a) must be answered in the affirmative.” C

138Copy pinpoint138. If Issue No.14(a) is answered in the affirmative, all the properties in Item Nos. 37 to 40 are Maktas and Inam properties and the Civil Court has no jurisdiction. This is the conundrum presented by the preliminary decree. Therefore, the holders of the preliminary decree and their assignees and purchasers cannot claim that the Government D had already become a persona non grata.

139Copy pinpoint139. Therefore, in fine, we hold on Issue No. (i)that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings. Issue Nos. (ii) and (iii) (ii) Whether the concurrent findings of the single Judge and the Division Bench of the High Court that Khurshid Jah did not leave behind any Mathruka property, goes contrary to the

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 349 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

finding recorded in the Judgment and preliminary decree that has attained finality? and (iii)Whether the finding recorded in the Judgment and preliminary decree that the lands in Hydernagar are Mathruka property are binding upon third parties?

140Copy pinpoint140. The answer to Issue No.(iii) is not very difficult to be found. B While dealing with Issue Nos.(i) and (iv), we have already held that any finding relating to title to a property, recorded in a simple suit for partition cannot be binding on third parties. The same would hold good even in relation to the finding in the preliminary decree that most of the suit schedule properties were Mathruka properties. Making this clear let us go back to Issue No.(ii).

141Copy pinpoint141. Issue No.(ii) arising before us is as to whether the finding recorded by the learned Single Judge in Application No.994 of 1995 and the finding recorded by the Division Bench in the impugned judgment that Khurshid Jah did not leave behind any Mathruka property is contrary to the finding recorded in the preliminary decree that has attained finality?

142Copy pinpoint142. For finding an answer to this question, let us first go back to the judgment in support of the preliminary decree and see if at all the Trial Judge came to the conclusion that most of the suit properties left behind by Khurshid Jah were Mathruka properties. E

143Copy pinpoint143. In the judgment in support of the preliminary decree, the Trial 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, IVA and IVB were the Mathruka properties of Khurshid Jah. Issue No.7(b) was about the effect of the conclusions reached by Mirza Yar Jung F Committee in this behalf.

144Copy pinpoint144. In the judgment in support of the preliminary decree, the discussion under Issue Nos. 7(a) and 7(b) begins on a correct note to the effect that for a success in the case, the plaintiffs have to prove that the property was the property left behind by Khurshid Jah. It is G also noted at the very beginning of the discussion that the Mathruka property of Zafar Jung and Imam Jung is distinct from the Mathruka of Khurshid Jah. Interestingly, the judgment in support of the preliminary decree records that while considering Issue No.7(a) it would be necessary to consider other connected issues, such as Issue No.8(a) which dealt with a settlement made by Khurshid Jah; Issue No.9 which H

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

145Copy pinpoint145. Therefore, the discussion on Issue Nos.7(a) and 7(b) were divided by the Trial Judge into separate parts, with the first part dealing with Issue Nos.8(a), 11 and 12 and the next part dealing with Issue Nos.9 and 20 along with Issue Nos.7(a) and (b).

146Copy pinpoint146. 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 no direct finding on Issue Nos.7(a) and 7(b).

147Copy pinpoint147. 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 and D 20” are as follows: (i) that there were two documents, one of partition and another of gift marked as Exhibits D.1(6) and D.1(29), relied upon by defendant Nos.1 and 2; (ii) that under these documents, Khurshid Jah made a E disposition of all his properties; (iii) that in one of the recitals contained in the document, he directed that the immovable properties divided among his two 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 be made in respect of not more than 1/3rd of the properties; (vii) that if the disposition is in favour of an heir, it is invalid G unless consented to by the other heirs; (viii) that one of the heirs of Khurshid Jah did not give his consent and hence the Will was of no avail; (ix) that according to the testimony of DW-25 (Vittal Rai, an old employee of the Paigah), after the death of Khurshid H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 351 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

Jah, the property of the Paigah was kept under the A supervision of Zafar Jung who was never designated as Amir Paigah; (x) that after the death of Zafar Jung, the whole property of Khurshid Jah was taken over by the Court of Wards, which managed the same till 1338 F; B (xi) that after Farman of 1338F, all the properties were declared as properties belonging to the estate of Khurshid Jah; (xii) that till the abolition of Paigah the properties were managed by 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) and P.7(a) were all copies of the statements of income and expenditure 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 were gifted away and partitioned, cannot be accepted; (xvii) that the property left by Khurshid Jah was never partitioned and they continued to be in possession of successive Amir Paigah; (xviii) that till the abolition of Paigahs, these properties were managed by the Committee of Amir Paigahs; (xix) that the estate of Khurshid Jah, for some time prior to the abolition of the Jagirs, was put under a Special Court of Wards; (xx) that though under Exhibit D.1(3) dated 25.04.1950, the estate was directed to be released under a Farman, the supervision of the estate nevertheless continued under orders of the Chief Minister of Khurshid Jah Paigah; (xxi) that merely because the Government handed over the estate to Himayat Nawaz Jung, in recognition of his right as Amir Paigah, he cannot be deemed to be the exclusive owner; and H

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

148Copy pinpoint148. In the preceding paragraph, we have summarised all the findings recorded by the Trial Judge under Issue Nos.7(a) and 7(b) taken B up together with Issue Nos.8(a) and 8(b), 9, 11, 12 and 20. In fact, the discussion on Issue Nos. 7(a) and 7(b) starts at internal page No.198 of the certified copy (photocopy) of the judgment dated 28.06.1963 and it goes up to internal page No.224. In all these 27 pages, the word ‘Mathurka’ appears perhaps only in one place namely page No.212 and that too as a statement made by one of the witnesses to the effect that C Mathruka was never partitioned between Zafar Jung and Imam Jung.

149Copy pinpoint149. In other words, no finding was ever recorded by the Trial Judge in his judgment dated 28.06.1963 that the properties left behind by Khurshid Jah were Mahtruka properties. Therefore, the contention as though there was such a finding and that the finding has attained finality and that the impugned Judgment goes contrary to such a finding, is wholly misconceived.

150Copy pinpoint150. The portions of the judgment dated 28.06.1963 relied upon by the appellants to show that the properties were held to be Mathruka properties left by Khurshid Jah, were all not findings recorded under Issue Nos. 7(a) and 7(b). They were either part of the pleadings or part of the findings recorded under Issue No. 6(b), which related to the report of the Mirza Yar Jung Committee with particular reference to who constituted the surviving legitimate heirs. Therefore, the reliance placed by the appellants on some portions of the judgment dated 28.06.1963, to say that the property was held to be Mathruka, is misplaced.

151Copy pinpoint151. For claiming that the suit properties were Mathruka properties, 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 of Andhra Pradesh ordering an Inam Enquiry; • The orders passed by the Nazim Atiyat Court first on 11.09.1959 and then on 30.10.1968; and H • The Muntakhab issued by the Commissioner on 14.02.1983.

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 353 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

152Copy pinpoint152. But we do not know how the appellants are placing reliance A upon these documents in support of the contention that the properties left behind by Khurshid Jah are Mathruka properties. If we have a look at the chronology of events, it may be seen that the sanad relied upon by the appellants merely state as follows:- “It is stated that Nazra (i.e. the Farm Land) of Hafiz Peth and B Mazra (i.e. the Farm Land) of Hydernagar, as per the old boundaries, out of Sivar (i.e. Limits) of village Miyanpur of the said Parganna Sarka and of the said Sba with the Nahasil i.e., the Land Revenue assessment of Rupees One thousand one hundred and thirty four and annas ten, given in lieu of Mazna Timmaeepalli of Sivar of Village Amir Khanguda of Pargana. C

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

153Copy pinpoint153. The sanad merely states that the Government lands and land of Khurshid Nagar were acquired for the Railway Road and that the acquired land was the purchased land of Khurshid Jah. If on account of the said statement, the land has to be construed as Mathruka, we do not know how and why after the death of Khurshid Jah these lands also G went into the hands of Paigah Committee. In any case, these are the questions which could not have been decided by the Court in a suit for partition.

154Copy pinpoint154. The order of the Nazim Atiyat dated 30.10.1968 and the Muntakhab issued by the Commissioner on 14.02.1983 could not have H

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A been produced before the Trial Judge in CS No.14 of 1958, as these documents came into existence after the judgment and preliminary decree dated 28.06.1963.

155Copy pinpoint155. It must be remembered that the entire basis of the claim of the appellants is that as per the preliminary decree these properties were B Mathruka properties. But the same is not borne out by the findings recorded by the Trial Judge in 27 pages of his judgment dated 28.06.1963 on Issue Nos. 7(a) and 7(b).

156Copy pinpoint156. Much was sought to be made, out of the finding recorded by the Nazim Atiyat Court that the lands in Hafeezpet and Hydernagar C included at Serial Nos.380 and 381 in the notification as per Appendix ‘F’ to the order of Nazim Atiyat was Inam-al-Tamgha. The annexure to the order of the Nazim Atiyat describes what Inam-al-Tamghais. It reads as follows:- “1. The villages of S.No.380 and No.381 have been verified as D “INAM AL-TAMGHA” in the name of Khurshid Jah Bahadur as per “KAIFIYAT-I-JAGIRDARAN” of 1296H. The word “Tamgha” means “Royal Charter.” In the documents used for grant of Jagir or Inam to the Jagirdars or anyone else, there used to be a checklist of information about the Jagir/Inam/ E Grant, 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 his services or in lieu of any Jagir/land or plot of land acquired by the Govt. out of his personal property for any specific purpose like laying of road/railway line or construction of any public facility F etc.”

157Copy pinpoint157. As we have stated elsewhere, the order of the Nazim Atiyat was not before the Trial Judge. The Trial Judge did not record a finding that it was Inam-al-Tamgha. In any case, it was only a suit for partition.

158Copy pinpoint158. Even if we assume that it was Inam-al-Tamgha, then a G question arises as to whether the same stood abolished after the advent of 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 mean the land held under a gift or a grant made by the Nizam or by any 17 H for short “1955 Act”

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 355 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

Jagirdar, holder of a Samsthan or other competent grantor and continued or confirmed by virtue of a Muntakhab or other title deed, with or without the condition of service. Therefore, if at least the order of Nazim Atiyat and the Muntakhab had come into existence before the preliminary decree and they had been produced as exhibits in the suit, the Trial Judge could have had an opportunity to apply his mind to find out the effect of the 1955 Act on Inam-al-Tamgha.

159Copy pinpoint159. Since everyone focused attention only on Hyderabad Jagir Abolition Regulations, 1948 and a contention was raised that the personal properties of the Jagirs were exempt under Section 18, no one ever examined the impact of 1955 Act. Even if the property in question escapes the guillotine under the Jagir Abolition Regulations, it may meet its fate under the 1955 Act.

160Copy pinpoint160. Therefore, we hold on Issue Nos.(ii) and (iii) that the Single Judge as well as the Division Bench (in the impugned judgment) were right in holding that the properties were not established to be Mathruka properties. The effect of the order of the D Nazim Atiyat was not examined by the Trial Judge. In any case, such an examination had to be done independently and not in a partition suit, keeping in view, the1955 Act and various subsequent enactments relating to agricultural land reforms and urban land ceiling. E Issue No.(v): Whether the claims of the claim petitioners stood established?

161Copy pinpoint161. It was contended by Shri Gopal Sankaranarayanan, learned F senior counsel for the appellants that the claim petitioners (obstructionists to the execution) could not produce a single scrap of paper to show how they derived the title to the portions of land in Survey No.172 of Hydernagar.

162Copy pinpoint162. But the said contention does not appear to be wholly correct. G 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 Division Bench, states that these claim petitioners had filed originals or certified copies of the pattas granted in favour of their predecessors-in-title. From paragraph 59 up to paragraph 61, the learned Single Judge dealt with Issue No.4 as to whether patta was granted in favour of Boddu H

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A Veeraswamy and others. He also dealt with additional Issue No.2 as to whether the claimants have otherwise perfected title by adverse possession. The learned Single Judge recorded that Boddu Veeraswamy and others were granted pattas in the year 1947 and that since these documents were more than 30 years old, no further proof of these documents was necessary in view of Section 90 of the Evidence Act, B

1872. The learned Single Judge also recorded that there was ample evidence in the form of sethwar, faisal patti, jamabandi, tax receipts and proceedings before various authorities. Eventually, the learned Single Judge concluded in paragraph 61 of his judgment that even if the documents relied upon by the claimants are found to be defective, the possession of the claimants have become adverse to the appellants herein.

163Copy pinpoint163. Assailing the said finding, it was contended by Shri Gopal Sankaranarayanan, learned senior counsel for the appellants that the presumption under Section 90 will apply only when an original document is produced and only after it is proved that it has come from proper custody.

164Copy pinpoint164. But the Explanation under Section 90 makes it clear that no custody is improper if it is proved to have had a legitimate origin or the circumstances of the particular case are such as to render such an origin probable.

165Copy pinpoint165. In any case, the learned Judge was not dealing with a title suit. Assuming that the claim petitioners could not produce documents to prove flow of title, they were admittedly in possession and they were sought to be dispossessed through the District Court, Ranga Reddy F District.

166Copy pinpoint166. When the entire claim of the appellants that the properties were Mathruka properties inheritable by the legal heirs had failed, the question of executing a decree on the strength of the plea that the property is a Mathruka property does not arise.

167Copy pinpoint167. It was argued by the learned senior counsel for the appellants that the High Court wrongly relied upon sub-sections (2) and (3) of Section 86 of the Hyderabad Land Revenue Act, 1317 F. (1907 A.D.) to provide pattadar status to the claimants. It was pointed out by the learned senior counsel that sub-sections (2) and (3) of Section 86 were omitted by the A.P. Adaptation Order, 1957. H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 357 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

168Copy pinpoint168. But the above argument does not advance the cause of the A appellants. The moment the claim of the appellants that it was a Mathruka property fails, the appellants lose their claim to property. It is only after they establish successfully their claim to title, that the burden shifts on the claimants.

169Copy pinpoint169. An original Map of Hydernagar verified by the Survey and B Land Records Department was sought to be produced before us to show that 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. But this Map, secured recently, was not before the learned Single Judge or the Division Bench. Therefore, we cannot look into the same to test the correctness of the impugned judgment. C

170Copy pinpoint170. Moreover, the argument that Survey No.172 could not have been sub-divided into 24/25 parts in the year 1978 is a self-defeating one. While setting up a claim to title, some of the appellants and their predecessors relied upon a report of the Receiver-cum-Commissioner and an order passed by the Trial Judge in Application No.139 of 1971 D dated 31.01.1976. It was under this document that defendant Nos.50, 51 and 52 as well as defendant No.116 claimed title to some portions of the land sub-divided in Survey No.172.It is true that Cyrus/Goldstone/Trinity did not rely upon the order in Application No.139 of 1971. They claim title from defendant Nos.157 and 206 but their claim could be traced only to the scheme of partition prepared by the Receiver-cum- Commissioner. It was either based upon the division purportedly made by the Revenue Divisional Officer under orders of the Collector in terms of Section 54 CPC or on the basis of the scheme submitted by the Receiver-cum-Commissioner. Defendant Nos. 51 and 52 are the legal heirs of defendant No.1. The appellants Cyrus/Goldstone/Trinity could not have had any claim, but for the purchase of 80% of undivided shares by HEH the Nizam, later impleaded as defendant No.156. Therefore, it is clear that the predecessors of the appellants rely upon these very sub- divisions, but the appellants negate the same. Thus, the appellants are guilty of approbating and reprobating. G

171Copy pinpoint171. The predecessors of the appellants have had knowledge that faisal patti were recorded in the name of the claim petitioners in 1978 itself. Even the Receiver was aware of this, as seen from the letter written by the Receiver on 09.04.1980 to the Collector. Yet the Receiver informed the Court that possession of the land in Survey No.172 could H

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A be granted to defendant Nos.157 and 206. The report of the Receiver- cum-Commissioner in this regard and the order passed thereon by the Court dated 20.01.1984 for handing over possession, is shocking, in the light of the fact that the Receiver himself recorded in his letter dated 09.04.1980 that faisal patti stood in the name of the claim petitioners. Therefore, it is too late in the day for the appellants to 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 claim and whether any such claim would still survive after a series of setbacks to the State Government in the Court room?

172Copy pinpoint172. In paragraph 244 of the impugned judgment, the High Court recorded a finding that pattas were granted to cultivating Ryots prior to 1948 and that therefore the land did not vest in the State Government D after the Hyderabad Jagir Abolition Regulations. The High Court went on to hold further that the Revenue Department of the subsequent State Government accepted these pattas as genuine and implemented the sethwar issued in 1947 and faisal patti issued in 1978-79.

173Copy pinpoint173. Following the aforesaid finding, the High Court declared in E paragraph 414(d) that the land did not vest in the State Government after the Hyderabad Jagir Abolition Regulations. Aggrieved by such a finding and conclusion, the State of Telangana originally came up with an application in I.A. No. 75869 of 2022 to implead themselves as parties to SLP (Civil) Nos. 2373-2377 of 2020. But subsequently, the State has filed an independent appeal in SLP (Diary) No. 19266 of 2022. F Therefore, the application for impleadment is unnecessary and hence it is dismissed.

174Copy pinpoint174. Coming to the appeal filed by the State of Telangana, it is seen from the impugned judgment that the State was not a party before the Division Bench of the High Court. Therefore, the aforesaid findings are not binding upon the State of Telangana. In fact, the State of Telangana need not have filed any appeals against the impugned judgment, as the declaration in paragraph 414(d) should be understood as a finding with regard to the claim of the claim petitioners qua the appellants.

175Copy pinpoint175. Since the State of Telangana has come up with appeals, the appellants (decree holders) as well as the claim petitioners have taken

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 359 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

advantage of the same to launch an attack on the State on the ground that the State has lost its claim at least in three earlier rounds and that therefore they cannot be given one more life. It was pointed out that the State moved an application way back in 1982 for amendment of the preliminary decree and for the deletion of Item Nos. 35-38 and 40 of Plaint Schedule IV, but the same was dismissed by the High Court by an order dated 18.12.1982. The appeal filed by the State in OSANo.1 of 1985 was dismissed on 24.12.1999. The special leave petition filed against the same was withdrawn on 05.05.2000 with liberty to file a regular appeal against the preliminary decree. But the appeal so filed in the year 2000 against the preliminary decree was dismissed on the ground of delay of 38 years. The said order was confirmed by this Court. Therefore, C it is contended that the fate of the claim of the State should be sealed at least now.

176Copy pinpoint176. But we must remember that what is sauce for the goose must be a sauce for the gander. If in a suit for partition, the title to a property cannot be decided in favour of the parties claiming partition qua strangers, the same logic would apply even to the claim petitioners qua the State Government. As rightly contended by Shri C.S. Vaidyanathan, learned senior counsel for the State, lot of issues remain unresolved in this regard. There was no occasion for the Court so far, to consider the effect of the 1955 Act. Assuming that the claim petitioners had title to a portion of the land in Survey No.172 of Hydernagar (roughly working out to about 11 acres out of a total of acres 196.20), the question as to who holds title to the remaining part of the land will still remain at large, if the assignees of the decree go out. If the appellants have no title to the rest of the lands on account of the Jagir Abolition Regulations and if the claim petitioners have title only to one portion of the land on account of the pattas granted prior to 1948, there must be somebody who owns the remaining extent of land. Assuming that somebody else owns the land, the effect of agricultural land reforms and urban land ceiling enactments were still there to be considered. G

177Copy pinpoint177. But as we have stated earlier, we are not deciding the title to land in these proceedings. Therefore, all that we would hold in answer to Issue No. (vi) is that the finding recorded in paragraph 244 and the conclusion reached in paragraph 414(d) of the impugned judgment, is not binding on the State Government. H

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A Part-V: Appeals by persons whose impleadment applications were dismissed by the High Court, but whose cases are similar to that of the claim petitioners

178Copy pinpoint178. As many as 24 impleadment applications were dismissed by the Division Bench of the High Court in the impugned judgment, on the ground, that no third party can implead in a claim petition filed by somebody else and that the only remedy of such parties is to file separate claim petitions.

179Copy pinpoint179. All the 24 impleadment applications fall under different categories namely: (i) those claiming to be in possession of a portion of the land representing the half share purportedly purchased by Cyrus/ Goldstone/Trinity in Survey No.172 of Hydernagar;

D (ii) those who claim to be in possession of a part of the land in the other half of Survey No.172 of Hydernagar; (iii) those who claim to be in possession of lands in other survey numbers; (iv) the Asset Reconstruction Company which claims to be the E mortgagee; and (iv) those who filed applications for impleadment in OSA No.59 of 2004.

180Copy pinpoint180. Out of the aforesaid categories of persons whose impleadment applications were dismissed, the case of the Asset Reconstruction F Company has been dealt with by us in the next part of the judgment.

181Copy pinpoint181. Insofar as the other persons whose impleadment applications were dismissed are concerned, we do not know why they consider themselves to be affected by the impugned judgment. In paragraph 414(e) of the impugned judgment, the Division Bench of the High Court has G held the entire order of the previous Bench dated 23.06.2006 to be void as a consequence of this Court setting aside the same on the principle of coram non judice. In paragraph 414(f), the High Court had declared the entire preliminary decree as regards the lands in Hydernagar village (not confined to any particular survey number) as void ab initio. In H paragraph 414(g), the order dated 20.01.1984 in Application

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 361 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

No.266 of 1983 and the order dated 28.12.1995 in Application A No.994 of 1995, have been held to be inexecutable not only against the claim petitioners but also against third parties. In paragraph 414(h), the High Court has declared even the final decree to be null and void. In paragraph 414(i), the order dated 29.03.1996 in EP No.3 of 1996 passed by the District Court and the Bailiff’s Report dated B 19.04.1996 have been held to be non-existent and null and void not only as against the claim petitioners but also as against any third party. In other words, despite the dismissal of the impleadment applications, the High Court has protected the interest of persons against whom the decree is sought to be executed. In any case, those persons who have identical claim as the obstructionists, who have filed C independent appeals against the impugned judgment will have the benefit of the judgment. But the benefit of this judgment will not inure to (i) those third parties claiming title under any of the parties to CS No.14 of 1958 and (ii) those claiming to have decrees or assignment of decrees in CS No. 14 of 1958. D Part-VI: Appeals by non-parties to the impugned judgment, challenging only one portion of the impugned judgment

182Copy pinpoint182. A few individuals, namely Sameena Kausar and four others, all of whom are the daughters of late Mirza Mazahar Baig, have come E up with separate appeals against the judgment in OSA Nos.54, 56, 58 and 59 of 2004, challenging (as per paragraph 1 of the Civil Appeals) only that part of the impugned judgment found in paragraph 414(f), by which the Division Bench of the High Court declared the preliminary decree to be vitiated by fraud. F

183Copy pinpoint183. Similarly, one Sahebzadi Hameedunnissa Begum, wife of late Nawab Ghousuddin @ Mohd. Ghouse Mohiuddin Khan, has come up with a separate appeal challenging the decision in OSA No. 54 of

2004. As seen from paragraph 1 of the Civil Appeal, this appellant also challenges only that portion of the impugned judgment found in paragraph G 414(f).

184Copy pinpoint184. The appellants in these appeals were not parties to the impugned judgment of the High Court. Their claim is that defendant No.52 in the suit was one Nawab Ghousuddin @ Mohd. Ghouse Mohiuddin Khan. His wife Sahebzadi Hameedunnissa Begum was H

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A defendant 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.172 of Hydernagar by the orders of the High Court in Application No.139 of 1971 and Application No. 185 of 1973. According to the appellants, the B Government accepted the report of the Nazim Atiyat Court dated 30.10.1968 and issued Muntakhab No.4 of 1983 dated 14.02.1983 declaring that Ghousuddin Khan and his two brothers were entitled to 2/ 5 share in Hydernagar village. Thereafter, Ghousuddin Khan (defendant No.52) gifted the land of the extent of acres 60.00 guntas in favour of Mahaboob Baig, as seen from the confirmation document dated C 19.12.1978.Sameena Kausar and others (appellants in four Appeals) are the granddaughters of Mahaboob Baig. They, along with other legal heirs of Mirza Mahaboob Baig claim to have inherited the land of the extent of acres 60 in Survey No.172 of Hydernagar. Thereafter, they also sold away acres 30 out of the total extent of acres 60.00 to M/s. D Jayaho Estates.

185Copy pinpoint185. To put in a nutshell, Sameena Kausar and four others, who are the appellants in four appeals, claim title to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, by virtue of a gift made by Ghousuddin Khan (defendant No.52). Sahebzadi Hameedunnissa Begum E who is the appellant in one appeal was defendant No.58 in the suit. All these appellants are aggrieved, by the declaration contained in the impugned judgment that the preliminary decree is vitiated by fraud and hence null and void.

186Copy pinpoint186. Interestingly, paragraph No.1 of the Civil Appeals filed by these persons expressly states that the appeals are confined only to a challenge to paragraph No. 414(f) of the impugned judgment. But in the course of arguments, Shri V.V.S. Rao, learned senior counsel appearing for the appellants also assailed paragraph Nos. 414(c) and 414(d) of the impugned judgment. In paragraph 414(c), the High Court declared that the appellants before the High Court had failed to establish that the land in Hydernagar village was the Mathruka property of Khurshid Jah. In paragraph No.414(d), the High Court declared that the land in Hydernagar village was Jagir land, but prior to 1948 pattas were granted to cultivating Ryots and that therefore title to the land passed on to the cultivating Ryots before 1948 itself. H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 363 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

187Copy pinpoint187. But as we have observed elsewhere, the High Court was compelled to hold that the preliminary decree was vitiated by fraud, due to certain circumstances. The way in which a very innocuous suit for partition was converted into a suit on title, the way in which tens of hundreds of final decrees came to be passed solely on the basis of compromises entered into between few of the parties, the way in which portions of the decree were assigned and/or sold to third parties, the way in which directions were obtained from the High Court to the Revenue Authorities for effecting mutation, the way in which possession was claimed to have been taken, through or otherwise than through execution proceedings even before the passing of the final decree, demonstrated that the process of law was abused and misused. Today C the position is that any property in the city of Hyderabad and some parts of Telangana can be traced to some property included in Plaint Schedule IV. Plaint Schedule IV included villages and villages without survey numbers and boundaries. Even today, lot of final decree applications are pending in respect of portions of properties described in the suit schedule. D Any number of compromises, any number of final decrees and any number of executions have taken place in CS No. 14 of 1958. As rightly contended by Shri C.S. Vaidyanathan, learned senior counsel appearing for the State what started off as a civil suit (CS) actually turned out to be a civil scandal. Instead of building castles in the air, the parties thereto were actually building castles out of CS No.14 of 1958. E

188Copy pinpoint188. The contention of Shri V.V.S. Rao, learned senior counsel is that the preliminary decree has already attained finality, with the State of A.P. filing an application for deletion of Item Nos.35 to 38 and 40 of Plaint Schedule IV, from the preliminary decree. The said application was dismissed on 18.12.1982. The appeal arising out of the same in F OSA No.1 of 1985 was dismissed on 24.12.1999. Though the State filed a Special Leave Petition, the same was withdrawn on 05.05.2000, but with liberty to go back to the High Court. On the basis of the liberty so granted, the State again filed an appeal in OSA SR No.3526 of 2000 against the preliminary decree. But the same was dismissed by the G Division Bench of the High Court on 07.02.2001. The Special Leave Petition arising out of the same in SLP (C) Nos.10622-23 of 2001 was dismissed by this Court on 16.07.2001. Therefore, it is contended by Shri V.V.S. Rao, learned senior counsel that a preliminary decree which had attained finality, cannot be challenged subsequently, as held by this H

p. 364 Copy page pinpoint

A Court in Venkata Reddy vs. Pethi Reddy18. The learned senior counsel also 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.

189Copy pinpoint189. But as we have pointed out earlier, the judgment and B preliminary decree dated 28.06.1963 and whatever happened subsequent thereto, were not in accordance with, (i) the procedure to be followed in a partition suit; and (ii) the scope of enquiry in a suit for partition.

190Copy pinpoint190. A careful look at the way in which the proceedings in CS No.14 of 1958 progressed would show that the High Court followed a C separate Code for itself and not the Code of Civil Procedure, 1908.

191Copy pinpoint191. It must be remembered that Order XX Rule 18 of the Code of Civil Procedure, 1908, lays down a procedure to be adopted by a Court 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 passing D a decree for partition may direct the partition or separation to be made by the Collector or any gazetted subordinate deputed by him, if the decree relates to an estate assessed to the payment of revenue to the Government. This shall be done, after first declaring the rights of several parties interested in the property. Under the second sub-rule, the Court may, if it thinks that the partition and separation cannot be conveniently E made without further enquiry, pass a preliminary decree declaring the rights of several parties and giving such further directions as may be required, if the decree relates to any other immovable property not covered by sub-rule (1).

192Copy pinpoint192. Obviously, the preliminary decree passed on 28-06-1963 in F CS No.14 of 1958 did not belong to the category indicated in Order XX Rule 18 (1). It belonged to the category mentioned in Order XX Rule 18 (2).

193Copy pinpoint193. As to what should be done in such cases, is provided in Order XXVI Rule 13 of the Code. Order 26 Rule 13 provides that where a G preliminary decree for partition has been passed, in any case not covered by Section 54 {and Order XX Rule 18 (1)}, the Court should issue Commission to such a person as it thinks fit, to make partition and separation according to the rights as declared in such a decree. The

18 H AIR 1963 SC 992

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 365 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

Commissioner so appointed should conduct an enquiry, divide the property into as many shares as may be and allot such shares to the parties, awarding wherever required and authorized, such sums to be paid for the purpose of equalizing the value of the shares, under Order XXVI Rule 14 (1). The Commissioner should then file a report into Court under sub-rule (2) of Rule 14 of Order XXVI. The Court may give an opportunity to the parties to file objections to the report and thereafter confirm, vary or set aside the recommendations made in the report of the Commissioner. After this is done by the Court, a decree should be passed by the Court under Order XXVI Rule 14 (3) of the Code.

194Copy pinpoint194. Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.

195Copy pinpoint195. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in a partition suit, namely (i) F 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 of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such 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 of G property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit.

196Copy pinpoint196. In fact, Sameena Kausar and others stake claim to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, on the basis of a gift made by defendant No.52. Even admittedly, Sameena H

p. 366 Copy page pinpoint

A Kausar and others have sold half of that land way back in 1997 to M/s Jayaho Estates. Yet Sameena Kausar and others have come up with appeals.

197Copy pinpoint197. Be that as it may, a look at the Memorandum of Oral Gift dated 19.12.1978 executed by Ghousuddin Khan (defendant No.52) B shows that the said document purports to be a record of the oral gift (hiba) already made on 10.10.1978. This Memorandum of Oral Gift declares that the donor have also delivered possession of the gifted property to the donee. Interestingly, this Memorandum of Oral Gift does not contain a Schedule of property, but contains very strangely, the boundaries alone. It will be useful to extract the last part of this C Memorandum of Oral Gift dated 19.12.1978. It reads as follows:- “Today on 19th December 1978 I have confirmed the oral gift made on 10th October 1978 in favor of the Donee and executed this Memorandum of gift in presence of the following witnesses.

D Hence these few words are written by me as a MEMORANDUM OF GIFT so that it may remain as an authority and used at time of need. Dated : 19th December 1978. Boundaries: E North: Nizampet village South: Bombay High way East: Hydernagar village, West: Survey No. 28land of Jeelani Begum. F Sd/-DonorGhouse Mohiuddin Khan. Sd/- witness Sd/- witness”

198Copy pinpoint198. It is true that in the body of the Memorandum, the donor claims to be the owner in possession of the land measuring acres 60 in G Survey No.172 of Hydernagar. But Survey No.172 of Hydernagar has land of a total extent of acres 196.20. The claim of defendant No.52 to acres 60 out of the total extent, is on the basis of an order purportedly passed first on 31.01.1976, in Application No.139 of 1971. But the only order passed in this application is to the effect that the parties have not been able to agree upon the allotment of shares and that therefore, the H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 367 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

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

Survey No. Allotted to D-52 Out of 172/8 0.2 G 9 Acres 39 Guntas 172/9 10.02 G 10 Acres 02 Guntas 172/17 7.08 G 7 Acres 08 Guntas C 172/18 10.00 G 10 Acres 00 Guntas 172/19 10.07 G 10 Acres 07 Guntas 172/20 9.34 G 9 Acres 34 Guntas 172/21 5.04 G 5 Acres 04 Guntas 172/22 5.38 G 5 Acres 38 Guntas 172/23 5.00 G 5 Acres 25 Guntas D 62.13 G

199Copy pinpoint199. Interestingly, the order passed in Application No.139 of 1971 is dated 21.01.1976. If pursuant to the said order, Survey No.172 had been sub-divided and different parcels of land in various sub-divisions of Survey No.172 stood allotted to defendant No.52, the Memorandum of E Gift dated 19.12.1978 should have contained all these sub-divisions of survey numbers and a proper description. Without giving the sub-division numbers of Survey No.172 and without describing different parcels of land as per the allotment allegedly made by the Advocate Commissioner, the Memorandum of gift proceeds to mention mere boundaries. F Interestingly, Northern boundary is stated to be Nizampet village, Southern boundary is stated to be Bombay Highway and Western boundary is stated to be Survey No.28 belonging to Jeelani Begum. Therefore, the entire claim made by persons claiming under defendant No.52, appears to be a hoax. G

200Copy pinpoint200. In fact, Shri V.V.S. Rao, learned senior counsel attempted to trace the title of the appellants, to the report of the Nazim Atiyat Court and the Muntakhab issued by the Commissioner of Survey, Settlements and Land Records. But as we have already pointed out, the suit was not one for title. H

p. 368 Copy page pinpoint

201Copy pinpoint201. Interestingly, the appellants in these appeals represented by Shri V.V.S. Rao, learned senior counsel, also attack the claim made by Goldstone/Trinity, on the ground that the sale deed dated 23.02.1967 executed by Nizam through his Constituted Attorney C.B. Taraporwala in favour of F.E. Dinshaw Company is not valid. The contention in this regard is that though the Nizam executed a power of attorney on B 17.11.1962, he became seriously ill and his condition deteriorated on 22.02.1967 and that he was put on oxygen. The sale deed by his power agent was prepared on 23.02.1967. The Nizam passed away on 24.02.1967. But the sale deed was presented for registration by Taraporwala on 17.03.1967. Therefore, according to the appellants, the C sale made by the Agent after the termination of his agency under Section 201 of the Indian Contract Act is wholly invalid.

202Copy pinpoint202. If what the appellants say is true, no marketable title could have passed on from Nizam to Cyrus to Goldstone. Therefore, it is not merely those claiming under defendant No.52 but also Cyrus/Goldstone/ D Trinity, should sink together.

203Copy pinpoint203. Appearing along with Shri V.V.S. Rao, learned senior counsel, for some of the appellants, it was contended by Shri K.S. Murthy, learned senior counsel that Hydernagar village came to be declared as a grant village and that it was covered by Altamagha which is a Royal decree. E The learned senior counsel also drew our attention to the Inam enquiry and the order of the Revenue Board and the Muntakhab.

204Copy pinpoint204. But as we have stated earlier, what was in hand was a suit for partition and all parties have not only created confusion but also started fishing in troubled waters.

205Copy pinpoint205. Shri V.V.S. Rao, learned senior counsel also appears for another set of appellants, namely Fareeduddin Khan and two others, who have come up with a challenge to the impugned judgment. These appellants claim title to the land of the extent of acres 30.00 in Survey No.145/2, acres 62.00 in Survey No.145/1 and acres 30.00 in Survey G No.163/3 of Hydernagar village. There are three appellants in these four appeals arising out of SLP (C) Nos.8888-8891 of 2022. But appellant No.2 has sold the land of the extent of acres 42, out of the total extent of acres 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 in Survey No.163/3 of Hydernagar village to third parties. H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 369 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

206Copy pinpoint206. We do not know how persons can sell identified parcels of A land purportedly allotted to them, out of undivided shares of land in a partition suit in which final decrees and Receiver’s reports galore.

207Copy pinpoint207. The argument of Shri V.V.S. Rao, learned senior counsel on behalf of these appellants who claim to be the legal heirs of defendant No.1, is that in a dispute arising out of claim petitions under Order XXI B Rules 97 to 101 CPC relating to land in Survey No.172, the High Court could not have set at naught the transactions relating to Survey Nos.145 and 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 limited challenge to the impugned judgment. C

208Copy pinpoint208. All that we can say in response to this argument is that if parties can hoodwink the Court and take the Court on a detour up to Mysore (two suit schedule properties were located in Mysore) and make a simple suit for partition into a suit for all kinds of disputes, the Court alone cannot stick to the boundaries. D

209Copy pinpoint209. 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 and SLP (C) No.24098 of 2022 are liable to be dismissed. Accordingly, they are dismissed. Part-VII : E

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

210Copy pinpoint210. This application has been filed by Mohd. Mustafauddin Khan and another seeking intervention in the appeal arising out of SLP (C) No.8884 of 2022 filed by Sameena Kausar and others. F

211Copy pinpoint211. The applicants herein are the legal heirs of Mohd. Ghousuddin Khan, who was defendant No.52 in the suit. The applicants claim that defendant No.52 was allotted land of the extent of acres 62 in Survey No.172 of Hydernagar. Interestingly, they assail the very sale deed dated 30.08.1964 under which HEH the Nizam allegedly bought the decretal G rights over the said property. According to the applicants, defendant No.52 never sold his share in favour of HEH the Nizam and Khasim Nawaz Jung. They also contend that the sale was not supported by any consideration and that in any case the sale is void for want of permission under Sections 47 and 48 of the Andhra Pradesh (Telangana Area) Agricultural Lands Act, 1950. H

p. 370 Copy page pinpoint

212Copy pinpoint212. Another interesting aspect brought to light by these applicants is that HEH the Nizam died even during the pendency of the application for impleadment in Application No.109 of 1966 and that therefore everything that happened pursuant to the impleadment were null and void.

213Copy pinpoint213. Unfortunately, the date on which HEH the Nizam was impleaded as defendant No.156, is not brought on record before us. But it is on record that he died on 24.02.1967. Before his death, his power agent namely, Taraporwala seems to have executed a sale deed in favour of Dinshaw Company (later Cyrus). However, the sale deed was presented for registration after the death of the Nizam. Therefore, we C are not in a position to verify the correctness of the contention that defendant No.156 (Nizam) died even before he was impleaded as a party to the suit. If what the applicants say is true, then they may be right in the contention that whatever was done in the name of the dead person is null and void.

214Copy pinpoint214. But for want of particulars regarding the date of the order impleading HEH the Nizam as defendant No.156, we are not pronouncing our final word on this aspect. Suffice to note for the present that in view of the dismissal of the appeals filed by Sameena Kausar and others, this intervention application is liable to be dismissed without getting into the E merits of their contention. Part-VIII I.A. No.112090 of 2022 in Special Leave Petition (C) Nos.2373-2377 of 2020

215Copy pinpoint215. This application has been taken out by an Asset Reconstruction Company, by name M/s Rare Asset Reconstruction Ltd. (formerly Raytheon Asset Reconstruction Pvt. Ltd.). They seek to implead themselves as parties to the Special Leave Petitions, on the ground that a company by name of M/s MBS Jewellers Pvt. Ltd. availed certain credit facilities from the Punjab National Bank, Andhra Bank G (now Union Bank of India) and Indian Overseas Bank and that as security for due repayment of the loans, third parties created an equitable mortgage by deposit of title deeds relating to plot No.10 in Survey No.172 measuring acres 196.20 guntas in Hydernagar village. The third parties who created such equitable mortgage were M/s India Telecom Finance Corporation H Ltd., M/s Sai Anupama Agencies Pvt. Ltd, M/s Keerti Anurag

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 371 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

Investments Pvt. Ltd., M/s Jayasree Agencies Pvt. Ltd., M/s Sai Keerti A Constructions Pvt. Ltd., M/s Sai Pavan Estates Pvt. Ltd. and M/s Greater Golkonda Estates Pvt. Ltd. According to the Asset Reconstruction Company, the deposit of title deeds took place on 25.03.2009. The total amount due to the consortium of banks was around Rs.550 crores. It appears that the banks filed applications before DRT, Hyderabad and B these applications are pending. Therefore, the Asset Reconstruction Company claims that if the mortgagors suffer an order from this Court, it is the public money belonging to the banks that will eventually suffer.

216Copy pinpoint216. Shri Dushyant Dave, learned senior counsel appearing for the Asset Reconstruction Company contended that irrespective of the dispute between private parties, it is public money which is at stake. The C learned senior counsel drew our attention to several provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), in support of his contention that even the jurisdiction of the Civil Court is barred D and that the provisions of these two enactments will override all other enactments.

217Copy pinpoint217. But there are two maj or obstacles for the Asset Reconstruction Company which is the applicant in this I.A. The first is that this Asset Reconstruction Company actually filed I.A.No.3 of 2019 E in OSANo.54 of 2004; I.A.No.3 of 2019 in OSANo.56 of 2004 and I.A.No.4 of 2019 in OSANo.59 of 2004 before the High Court. All these applications for impleadment were dismissed by the High Court by the order impugned in these appeals. Other persons who filed similar impleading applications which were also dismissed by the High Court, have come up with independent appeals against the entire impugned judgment. This is because the order dismissing their impleadment applications is part of the operative portion of the whole impugned judgment. Therefore, the Asset Reconstruction Company ought to have filed independent appeals against the dismissal of their impleadment applications by the High Court. They cannot now have a piggy-back ride on the appeals filed by others.

218Copy pinpoint218. The second difficulty that the Asset Reconstruction Company has, is that six different companies created an equitable mortgage by deposit of title deeds. As per the averment contained in Para 2 of I.A.No.110290 of 2022, the deposit of title deeds happened on 25.03.2009. H

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A What is said to have been deposited are the certified copies of the final decree in Application No.517 of 1998 in CS No.14 of 1958 dated 24.04.1998.

219Copy pinpoint219. We do not know how a final decree in a partition suit and that too in a notorious suit like CSNo.14 of 1958 could have been taken B to be a document of title which can be accepted by way of equitable mortgage. In any case, the deposit of title deeds is said to have taken place 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 the obstructionists had come into existence. Though the said order of the learned Single Judge dated 26.10.2004 was set aside by the Division C Bench by an order dated 23.06.2006, the said order of the Division Bench had become the subject matter of the civil appeals even at that time. These civil appeals were eventually allowed by this Court by an order dated 05.03.2014. We do not know how during this interregnum period, the Banks could have accepted this property as security, despite the same being the subject matter of a serious long drawn litigation.

220Copy pinpoint220. In any case, the applications for impleadment made by the Asset Reconstruction Company have been dismissed by the High Court by the order impugned in these appeals. Without challenging the same, the Asset Reconstruction Company cannot seek to implead themselves in 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

F Leave Petition (C) Nos.2373-2377 of 2020

221Copy pinpoint221. These applications praying respectively for, (i) leave to get impleaded; (ii) impleadment; and (iii) directions, have been filed by a Cooperative Housing Society by name M/s Durga Matha House Building Construction Co-operative Housing Society Ltd. This Society is seeking to get impleaded and is also praying for appropriate directions, in the G appeals arising out of SLP (C) Nos.2373-2377 of 2020.

222Copy pinpoint222. The averments contained in these interlocutory applications, in brief are, (i) that by virtue of a sale deed dated 23.02.1967, HEH the H Nizam sold his undivided half share in the land of the extent

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 373 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

of acres 175.06 in Survey No.163 of Hydernagar to Cyrus A and Nawab Khasim Nawaz Jung; (ii) that the sellers and the purchasers were impeladed as defendant Nos.156, 157 and 206 respectively in CS No.14 of 1958; (iii) that Nawab Khasim Nawaz Jung (defendant No.157) died leaving behind him surviving, his wife and daughter (defendant Nos.334 and 335); (iv) that the Receiver-cum-Commissioner and the Revenue Divisional Officer authorized by the District Collector to divide the land under Section 54 CPC, effected division and filed a survey map and memo on 03.03.1981 before the High Court in Application No.139 of 1971; (v) that as per the memo, the land in Survey No.163 of Hydernagar was allotted to defendant Nos.157 and 206 in half shares, as per the orders of the High Court dated D 08.07.1983 in Application No.31 of 1982; (vi) that those defendants thereafter executed several deeds of assignments and sale deeds in favour of third parties including the applicant-Society; E (vii) that the applicant-Society got an assignment of land of the extent of acres 50.00 by the Assignment Deed dated 18.04.1987 from Nawab Khasim Nawaz Jung and another extent of acres 16.00 under another Assignment Deed of the year 1989; F (viii) that the applicant-Society thus became the owner and also took over possession of land of the extent of acres 66 in Survey No.163 of Hydernagar; (ix) that when some individuals claiming to be the occupants of some part of the land started interfering with the possession of the applicant-Society, the Society filed a civil suit for G bare injunction; (x) that the said suit was tried along with another suit filed by another Cooperative Society similarly placed, by name IDPL Employees Cooperative House Building Society Ltd.; H

p. 374 Copy page pinpoint

A (xi) that by a common judgment dated 16.11.2005, both the suits were dismissed by the Trial Court; (xii) that the first appeals arising out of the same are now pending;

B (xiii) that after the impugned judgment of the High Court, one of the respondents in those first appeals have taken out an application for rejection of the appeal of the applicant- Society on the ground that the entire preliminary decree has been held by the impugned judgment to be vitiated by fraud; C (xiv) that upon coming to know of the impugned judgment dated 20.12.2019, the applicant-Society filed a petition for review before the High Court; (xv) that in the meantime, the applicant-Society also came to know about this Court being seized of the appeals arising out of the very same impugned judgment; and (xvi) that therefore, the applicant-Society is compelled to approach this Court by way of an application for impleadment and application for directions, so that their rights relating to the land in Survey No.163 of Hydernagar are not affected.

223Copy pinpoint223. Shri Hemendranath Reddy, learned senior counsel appearing for the applicant herein contended: (i) that the High Court went overboard in holding the preliminary decree to be vitiated by fraud, after the same had attained finality in several proceedings, including those initiated by the State Government; (ii) that on the basis of the division made by the Revenue Divisional Officer, in terms of Section 54 CPC and on the basis of the report of the Receiver-cum-Commissioner, the land was identified, sub-divided and possession handed over; (iii) that mutation was effected way back in 1989, but when it was cancelled, the applicant filed writ petition and got the mutation restored; H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 375 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

(iv) that even the land grabbing proceedings ended in favour of the applicant; (v) that all the appeals that the Division Bench of the High Court 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 by fraud, the High Court, under the impugned judgment has struck a severe blow to settled issues which have attained finality; and (vii) that the High Court could not have declared the preliminary decree to be vitiated by fraud, when there were no pleadings with regard to fraud and that by the order impugned in these appeals, the High Court has created a cloud over the rights of third parties over other parcels of land, when those third parties like the applicant herein were not even parties to the impugned judgment. D

224Copy pinpoint224. Shri Hemendranath Reddy, learned senior counsel appearing for the applicant herein also relied upon another judgment of the Division Bench of the High Court dated 30.03.2021 passed in Writ Petition No.20707 of 2018 (batch), wherein the Division Bench clarified that the findings relating to fraud in the impugned judgment, were confined only to land in Survey No.172.

225Copy pinpoint225. We have carefully considered the submissions of Shri Hemendranath Reddy. But we are unable to agree with his contentions for the following reasons: (i) Even according to the learned senior counsel, the finding recorded in the impugned judgment that the preliminary decree is vitiated by fraud, was confined only to the land in Survey No.172 of Hydernagar. According to the learned senior counsel, this position was clarified by another Division Bench (presided over by the same G Presiding Judge who authored the impugned judgment) in its judgment dated 30.03.2021 in Writ Petition No.20707 of 2018 (batch). In paragraph No.169 of the said judgment dated 31.03.2021, the subsequent Division Bench recorded as follows: H

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A “169. Whatever observations were made by this Court in Shahanaz Begum (10 supra) were specifically made only in the context of the special facts in relation to Sy.No.172 of Hydernagar Village only, and they cannot be read out of context by the respondents and made applicable to land in Hafeezpet Village as well.” B Therefore, we do not know why the applicant-Society is before us; (ii) In any case, the procedure adopted by the applicant-Society before us, is unknown to law. As we have pointed out in the beginning, the applicant-Society has come up with three applications, praying respectively (i) forleave to get impleaded; (ii) to implead in appeals arising out of SLP (C) Nos.2373-2377 of 2020; and (iii) for appropriate clarification that the observations in the impugned judgment are not applicable to the land in Survey No.163. In other words, what the applicant-Society wants us to do, is to clarify a judgment of the High Court. We do not know under what provision of law this Court can clarify the judgment of a High Court through an application taken out in a pending appeal, especially in a matter of this nature. By filing these applications in the appeals filed by their predecessors-in- title, the applicant-Society is either trying to piggyback ride on their vendors or to wriggle their predecessors in title, out of trouble. This cannot be permitted; and (iii) In any event, the applicant-Society has admittedly filed a F petition for review of the impugned judgment on the ground that the same cannot affect their rights in Survey No.163. Therefore, it is not open to the applicant-Society to come up before us and that too in the form of an application for direction. Hence these three IAs deserve to be dismissed. G Accordingly, they are dismissed. CONCLUSION

226Copy pinpoint226. In the light of the above discussion: (i) All the appeals arising out of SLP(C) Nos.2373-2377 of 2020 filed by Trinity Infraventures Ltd. and others are H

M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. 377 MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]

dismissed. Consequently, I.A. No. 75869 of 2022 filed by A State of Telangana is dismissed. (ii) All the appeals arising out of SLP(C) Nos.8884-8887 of 2022 filed by Sameena Kausar and others are dismissed. Consequently, I.A. No. 118143 of 2022 is dismissed. B (iii) All the appeals arising out of SLP(C) Nos.8888-8891 of 2022 filed by Fareeduddin Khan and others are dismissed. (iv) All the five appeals arising out of SLP(C) Diary No.19266 of 2022 filed by the State of Telangana and another are dismissed with the observation that the finding given in C paragraph 244 and the conclusion recorded in paragraph 414(d) of the impugned judgment, are not binding upon the State Government. (v) The appeal arising out of SLP (C) No.24098 of 2022 filed by the legal representative of Sahebzadi Hameedunnissa D Begum is dismissed. (vi) The appeals arising out of SLP (C) No.2203 of 2022 filed by T. Pandri Natham and others; SLP (C) No.256 of 2022 filed by K. Sudhan Reddy and others; SLP (C) No.1584 of 2022 filed by G. Aruna Kumari and others; SLP (C) No.980 E of 2022 filed by G. Rama Krishna Reddy and others; SLP (C) No.8872 of 2022 filed by K. Pardha Saradhi and others who have purchased individual plots of land from Satya Sai Co-operative Housing Society Ltd., are dismissed with the observation that despite the dismissal of their impleadment F applications by the High Court, they stand protected due to the preliminary decree and final decree being declared void and also due to the usage of the words “third parties” in paragraph 414(g) and 414 (i). (vii) I.A. No.112090 of 2022 in the appeals arising out of SLP(C) G Nos.2373-2377 of 2020 filed by the Asset Reconstruction Company is dismissed, without prejudice to the rights available to the Asset Reconstruction Company to proceed against the borrowers and the mortgagors in accordance with law. H

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A (viii) I.A. Nos.36417, 36419 and 36422 of 2023filed by Durga Matha House Building Construction Co-operative Housing Society 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 Appeals disposed of. (Assisted by : Rahul Rathi, LCRA)