1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2023

(ARISING OUT OF SLP (C) NOS.2373-2377 OF 2020)

M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. …APPELLANT(S)

VERSUS

M.S. MURTHY & ORS. ETC. …RESPONDENT(S)

WITH

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.24098 OF 2022)

CIVIL APPEAL NOS. OF 2023

(ARISING OUT OF SLP (C) NOS.8884-8887 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.2203 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.256 OF 2022)

CIVIL APPEAL NOS. OF 2023

(ARISING OUT OF SLP (C) NOS.8888-8891 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.1584 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.980 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO.8872 OF 2022)

CIVIL APPEAL NO. OF 2023

(ARISING OUT OF SLP (C) NO. OF 2023)

(ARISING OUT OF DIARY NO. 19266 OF 2022)

2

J U D G M E N T

V. Ramasubramanian, J.

Permission to file special leave petitions is granted in Diary

No.19266 of 2022.

2. Delay condoned.

3. Leave granted.

4. Aggrieved by a common judgment rendered by the Division

Bench of the High Court for the State of Telangana in a batch of intra-

Court appeals, confirming the judgment of the learned Single Judge of

the High Court in a batch of applications in a civil suit, various parties

including the State of Telangana and some third parties have come up

with these civil appeals.

5. We have heard Shri Gopal Sankarnarayana n, learned senior

counsel appearing for one set of parties who are the appellants herein

(and who claim to be the assignees of the decree), Shri B. Adinarayana

Rao, Shri Chander Uday Singh, Shri Ranjit Kumar, learned senior

counsel and Shri Santosh Krishnan, learned counsel appearing for

parties who obstructed the execution of the decree (claim petitioners)

and who succeeded before the High Court, Shri C.S. Vaidyanathan,

learned senior counsel appearing for the State of Telangana and Shri

V.V.S. Rao, Shri Hemendranath Reddy and Shri K.S. Murthy, learned

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senior counsel appearing for third parties and Shri Dushyant Dave,

learned senior counsel appearing for an Asset Reconstruction

Company which has filed an application for intervention.

Background Facts:

6. Hyderabad was a Princely State until it came to be annexed to

the Union of India on 18.09.1948 through police action which came to

be popularly known as “Operation Polo.” HEH the Nizam was its Ruler

till then. While outsourcing is something which we have now come to

be familiar with only in the twentieth century, HEH the Nizam seems

to have adopted the practice of outsourcing even defence services more

than 200 years ago. It seems that the Nizam had the practice of

granting certain lands to people for the purpose of supply and

maintenance of Armed Forces. The lands so granted came to be known

as “Paigah Estate.” The dispute on hand relates to a Paigah granted to

a person by name Khurshid Jah and the grant came to be known as

Khurshid Jah Paigah. To understand the nature and sweep of the

dispute on hand, it may be relevant to take a peep into history.

7. It appears that one Mir-Qamar-ud-din Khan (who was given the

title Asaf Jah) was one of the feudal chiefs of the Moghuls and was the

Governor of Deccan from 1713 to 1721. Later he proclaimed

independence and founded the Asaf Jahi dynasty in Hyderabad.

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8. As stated by Gribble in his “History of Deccan”, Asaf Jah brought

with him a number of followers, both Mohammadens and Hindus, who

were attached to his person and fortunes. To the Mohammedan

nobles, he granted Jagirs or estates on military tenure and employed

them as his Generals. The Hindus were employed principally in the

administrative work in the departments of revenue and finance. To

them also he granted Jagirs as remuneration for their services and all

these Jagirs whether granted for civil or military purposes came to be

regarded as hereditary.

9. Distinguished among the Muslim followers was Mohammed Abul

Khair Khan, a member of a noted family which had settled for some

generations in Oudh and afterwards in Agra. He had rendered

meritorious services in battles and was the recipient of several favours

and honours at the hands of the Nizam. He was eventually made a

“Commander of 6000 horsemen”, with the title of “Imam Jung”. He died

in 1751 A.D. His son, Abul Fateh Khan, who followed in the footsteps

of his father, soon rose to great prominence. His services also got

rewarded and his estate swelled up by reason of fresh grants and

sanads.

10. Eventually, in or about the year 1198 H. (1784 A.D.) the Jagirs

roughly coinciding with what sometime thereafter were called the

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Paigah Estates, were granted to him by Nizam Ali Khan under a

Perwana. On his death, a fresh grant of the same estate and of about

the same area was made in 1205 H. to his son, Fakhruddin Khan,

who was a minor then. This grant seems to have been made as Paigah

grant.

11. In fact, the term ‘Paigah’ as used in the Parwan of 1198, and

1205 H. connotes an estate granted for maintenance of the army. Abul

Fateh Khan indeed expressly undertook to maintain a regular number

of troops at a definite cost. In 1253 H. on the application of

Fakhruddin Khan, a regular sanad was granted. That sanad is the

foundation of the title of the Paigah family. The nature of the grants

evidenced by this sanad would show that these grants were burdened

with obligations to maintain Paigah troops for the services of the

Nizam.

12. Fakhruddin Khan, however, died in 1863 A.D. He was succeeded

by his eldest surviving son, Rafiuddin Khan, who was co-Regent of the

Hyderabad State along with Sir Salar Jung during the minority of the

late Nizam Mir Mahboob Ali Khan. On the death of Rafiuddin Khan,

disputes arose about the family properties between Rashiduddin

Khan, his brother, and Motashim-ud-Daula and Bashir-ud-Daula (Sir

Asman Jah) the two sons of Sultanuddin Khan, another brother of

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Rafiuddin Khan. Before these quarrels were settled, Motashim -ud-

Daula and Rashiduddin Khan died. Eventually in 1882 A.D., an award

was made by Sir Salar Jung, between Asman Jah on the one side and

Rashibuddin Khan’s two sons, Khurshid Jah and Vikar -ul-Umara on

the other, as a result of which certain estates called Paigah Taluqas

were awarded to Asman Jah. The remaining Paigah Taluqas of the

family were divided between Khurshid Jah and Vikar-ul-Umara as a

result of the award of Mr. Ridsdale. There was a partial division of the

family property in 1878 A.D. also. As a result of these arrangements,

the original Paigah Estate become divided into three separate estates

known as the Asman Jahi Paigah, Khurshid Jahi Paigah and Vikar-ul-

Umrahi Paigah.

13. Thereafter, Asman Jah, Khurshid Jah and Vikar -ul-Umara

remained in possession of their respective Paigahs until their deaths.

These Paigah grantees, were not the absolute owners of the estates. In

fact, the Jagirs in Hyderabad State were neither in the nature of

Zamindaries of Madras State nor of Taluqdaris of U.P. While

proprietary rights vested in the Zamindars of Madras and Taluqdars of

Oudh, the Jagirdars in Hyderabad were entitled only to the usufructs

of revenue from the estate for life. The grant, in law, on the death of

Jagirdar would revert to the Crown and would be made as a fresh

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grant to the new Jagirdar. The Paigah estates with which this case is

concerned, was no exception to this. In fact, since they were burdened

with the obligation to maintain Paigah troops, they were liable to be

resumed by the Nizam if he so willed. The Nizam could as well

commute the military burden into an equivalent money payment and

require such payment on pain of resuming the Paigah Jagir. He was,

at any time entitled to state that he does not require troops but

requires money in their stead.

14. Besides, Paigahs like Jagirs were inalienable and impartiable

save with the consent of the Nizam. Therefore, the above-mentioned

partitions required the consent of the Nizam. In fact, several partitions

which took place, obviously had the implied consent of the Nizam. On

12th Rajab 1337 H. (12-4-1919) the Nizam appears to have ordered

that the Paigah Jagirs were not to be further divided.

15. But the fact that the Paigah Jagirs as they stood at that time

were not to be physically divided, did not prevent such members of the

family as are legally entitled thereto, from dividing the shares of the

income of the Jagirs.

16. A special feature of the Paigah, as also of Jagirs and Inams in

Hyderabad State was that possession of the estate was given to a

single person as the Paigah holder (in case of Paigahs) who, in

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addition to his own shares, was entitled in respect of the management,

a specific share in the income of the estate and this right was called

Haqe Inthezam or right of management. The junior members were

entitled to their shares after deducting the Haqe Inthezam and other

administrative expenses. There used to be others also known as

Guzaryats.

17. The Paigah Estate included some Zat Jagirs as distinct from the

Paigah taluks granted from time to time. They too were eventually

merged in the Paigah estates. The holder of the Paigah was called

Amir. Though the holder was the Amir, the heirs of the original

grantees, as in the case of any other Jagirs, were entitled to their

respective shares in the revenue, by inheritance, of course, after

deducting the share of the Amir and also the administrative expenses.

The Amir had a special share of his own to support his position as the

head and manager of the Paigah and its representative towards the

Nizam and the public. This share was previously unascertained. That

was the reason why until the death of Sir Khurshid Jah and the other

respective holders of the Paigah, the Amirs were practically the only

persons to be considered and they could take for themselves what part

of the income they thought fit.

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18. In order to remedy the injustice caused by such arbitrary and

capricious way of appropriation of the income, several committees

came up with proposals. Sir Brain Egerton’s Committee proposed

among other things that the Amir should be allowed to take 11⁄2

annas in the rupee of the gross income of the Paigah. The Reilly

Commission proposed that Amir should take a definite portion of the

net, instead of the gross income of the Paigah. In fact, in respect of

Jagirs there was also a Farman of 1340 H that the manager should be

allowed 4 annas in the rupee of the net income.

19. Sir Khurshid Jah died on Rabi-al-Thani, 1320 H (July, 1902)

leaving behind him surviving, two sons, by name Imam Jung and

Zafar Jung as his only recognised legitimate heirs. As already stated,

any grant of Jagir, on the death of the grantee would lapse to the

Crown and a fresh grant could be made to any of the heirs of the

previous grantee. The Nizam had ample powers to resume the Jagirs

or to appoint any person, be he the eldest son or not, as the Amir or

make any other arrangements.

20. On the death of Sir Khursid Jah, no Amir was appointed by the

Nizam in relation to that Paigah until 1345 H (February, 1927) and no

member of the family was put in complete charge of the Paigah.

Nawab Zafar Jung, under a Farman issued a few weeks after the death

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of Sir Khurshid Jah, was put in charge of the Khurshid Jahi Paigah as

a mere supervisor and trustee to carry on the ordinary routine work

and was directed to take the Nizam’s orders on all important matters

and to account for the income and expenditure of the estate.

21. The administration of this Paigah estate, as in the case of other

Paigahs in which similar arrangements were made, did not fare better

and in fact all these estates ran into huge debts. A Controller General

of Paigah Affairs called Sadr-Ul-Moham of the Paigahs was appointed

by the Nizam to undertake complete control and management of the

three Paigahs under his orders. This step proved successful and the

able and efficient management of the committee helped to build up

appreciable reserves for each of the Paigah estates after wiping out the

huge debts.

22. It was then that Lutfuddaula was appointed Amir under the

Farman dated 29

th Rajjab, 1345 H (2-2-1927) A.D. During the interval,

the properties left by Khurshid Jah were not permitted to be divided,

though claims were advanced by his two sons and by their children.

23. In connection with the claims made by various heirs, the Nizam

appointed as many as three Royal Commissioners: (1) The Egerton

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

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24. After a careful consideration of these reports, a Farman was

issued on 17

th

January, 1929 (5

th

Shahban 1347 H.) The Nizam stated

therein that in regard to the Paigah, he held a three-fold capacity (i) as

the Ruler of the State (ii) as the head of Sarf-i-khas and (iii) as the

patron of the Paigah family.

25. In Para 2 of the General Orders of the Farman, he directed that

“whatever property had hitherto been acquired or articles purchased or

buildings constructed out of the income of the Paigahs will be

considered the property of the Paigahs and not that of any individual,

and it will not be liable to division like Mathruka property”.

26. In Order II the Nizam directed that one-third of the gross income

should be appropriated for the administrative charges of the Jagir, and

the second-third would constitute the Manager’s share i.e., the Paigah

Amir’s share and the remaining one-third shall form the share of the

other heirs, i.e., the shareholders of the Paigah.

27. In Order III Para 9, he further directed that the precious stones,

jewellery and rare articles, which, in accordance with the principles

laid down in Para 2 of the Farman are the property of the Paigah from

olden times, or have been purchased with money belonging to the

Paigahs will remain with the Paigah Amir in trust. Paigah Amir shall

not have the right to sell, pledge, or give them to any person, but they

12

can be lent for temporary use to members of the Paigah family after

obtaining the Nizam’s sanction from time to time, provided the Amir

holds himself responsible for their safety and careful use. In Order III

Para 2, the Nizam directed that if there is any property left as intestate

property of any Paigah, the distribution thereof shall also be settled by

the Committee appointed by the Farman.

28. The Nizam stated in Order III, Para 2 that at the time of Sir

Khurshid Jah’s death, his two sons Imam Jung and Zafar Jung were

his only heirs, who, if alive then, would have been entitled to one half

share each of third part of the gross income, and that since both are

dead and the number of their survivors were large and regarding some

of them (especially among Zafar Jung’s heirs) there was difference of

opinion as to the legality of certain marriages and the legitimacy of

some children, a Committee had to be appointed for the distribution of

the third part of the gross income of the Khurshid Jahi Paigah among

the heirs of Khurshid Jah’s two sons.

29. This Committee was presided over by Nawab Mirza Yar Jung, the

then Chief Justice of Hyderabad and they submitted their report on

17

th January, 1929. This Committee, known as the Paigah Committee,

gave a definite finding that Nawab Khurshid Jah left no property

which was not acquired or purchased out of the Paigah income within

13

the meaning of Para 2 of the preliminary portion of the Farman. Thus,

what was left by Sir Khurshid Jah were (1) the properties or articles

purchased or buildings constructed out of the income of the Paigahs

and (2) precious stones, jewellery and rare articles which, in

accordance with the principles laid down in the Farman are the

property of the Paigahs from olden times, or have been purchased with

money belonging to the Paigahs which are held by the Paigah Amir in

trust as heirlooms of the Paigah family. Distribution of these two

classes of properties, including their accretions, could not be made, in

view of the Farman, amongst the heirs of Nawab Sir Khurshid Jah, as

they were held indivisible, impartible and inalienable. The Amir Paigah

was only a supervisor and trustee for these properties.

30. Twenty years after this report, the political atmosphere changed

and the Jagirs and the Paigahs were abolished by means of the Jagir

Abolition Regulations (Hyderabad Regulation No. 69 of 1358 F) with

effect from 15.08.1949. The Jagirs and the properties connected with

the Jagirs were taken over by the Jagir Administrator and the

Jagirdars were declared entitled only to the commutation amount. The

other properties and estates unconnected with the Jagirs, however,

were allowed to remain with the Jagirdars.

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31. In the year 1955-56, a lady by name Dildar-Un-Nissa Begum,

who was one of the lineal descendants of Khurshid Jah filed a suit in

O.S.No.41 of 1955-56 on the file of the City Civil Court, Hyderabad,

claiming (i) that the Estate left behind by Nawab Khurshid Jah was a

Mathruka Estate; and (ii) that she is entitled to 29/2944 share. It

must be mentioned at this stage that the fight in O.S. No. 41 of 1955

as it was originally instituted, was actually between the surviving heirs

of Nawab Zafar Jung on the one hand and the surviving heirs of

Nawab Imam Jung on the other hand. (Nawab Zafar Jung and Nawab

Imam Jung were the sons of Khurshid Jah). To be precise, the surviving

heirs of Nawab Zafar Jung were arrayed as, (i) the plaintiff; and (ii)

defendant Nos. 1-35 and 44-49. Similarly, the surviving heirs of

Nawab Imam Jung were arrayed as defendant Nos. 36-42 and 50.

Defendant No.43 was the Jagir Administrator of the Government of

Hyderabad. It may also be mentioned here that at the time of the

institution of the suit, there were only 43 defendants with the Jagir

Administrator being the last, namely defendant No.43. However,

subsequently the number of defendants swelled to unmanageable

proportions both on account of the death of the original defendants

one after the other and various other factors which we shall see later.

15

32. The reliefs sought for in the suit were as follows:-

“The Plaintiff therefore prays that a preliminary decree be

passed:-

(a) directing that the properties detailed in Schedule IV which

are in the possession of the part as detailed therein and the

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 the

Mathruka of the late Nawab Khurshid Jah be divided by metes

and bounds and plaintiff be given her 29/ 2944th share

therein;

(b) appointing, a Commissioner-Receiver to take charge of the

said properties and divide the same between persons who are

legitimately entitled thereto;

(c) directing the Defendants Nos 1 to 43 to account for all

mesne profits and income accruing in respect of the said

Mathruka properties upto the date of suit and there after

during the pendence of this suit; and

(d) restraining the defendants from changing, alienating on

encumbering any of the aforesaid properties in any manner

during the pendency of this suit. If any properties of the

Mathruka estate have been alienated by any of the defendants

the same be debited to their share or ordered to be recovered

from them if it is in excess of their share.

The plaintiff further prays that appropriate orders be passed

for payment plaintiff costs out of the Mathruka Estate.

And such further and other reliefs be granted and orders be

passed which this Hon’ble court may deem fit.”

33. For reasons which are not immediately decipherable, the said

suit filed in the City Civil Court, Hyderabad was withdrawn by the

High Court and transferred to itself for being tried and disposed of.

This withdrawal and transfer could have happened ( only a

presumption) either in terms of Clause 13 of the Letters Patent or in

16

terms of Section 24(1)(b)(i) of the Code of Civil Procedure, 1908

1

. It

must be remembered that until the High Court was renamed as the

High Court of Andhra Pradesh in November, 1956 under the States

Reorganisation Act, 1956, the High Court was the High Court of

Hyderabad. The suit as it was originally filed was in the year 1955-56,

but the withdrawal and transfer took place in the year 1958 and the

suit was re-numbered as CS No.14 of 1958.

34. Since the genesis of the present dispute should be traced to the

plaint in CS No.14 of 1958, it is necessary to extract the main part of

the plaint as such. Therefore, paragraphs 6 to 17 of the plaint read as

follows:-

“6. After the death of Nawab Khurshid Jah in 1320-H,

neither the Paigah Estate nor the Mathruka was permitted to

be divided through claims were advanced by his two sons and

later by their children. The reason for not permitting the

division of the Paigah Estate or the Mathruka of Nawab

Khurshid Jah appears to be that His Exalted Highness the

Nizam was against further partition and wanted to preserve

this ancient family as a whole and preserve its integrity, and

grandeur. This is evident from the two Farmans of His

Exalted Highness dated 11

th

Rajab 1337H, Corresponding to

8

th

Khurdad 1328 Fas li and 5

th

Shaban 1347 H,

corresponding to 15

th

Isfandar 1338 Fasli (17. 1.1929). Copies

of the said two Farmans are herewith filed and marked II and

III.

7. In connection with the claims of various heirs His Exalted

Highness the Nizam appointed as many as three Royal

Commissions namely:

(1) The Egerton Committee,

(2) Glancey Commission, and

(3) Railey Commission

1

Hereinafter referred to as “CPC”

17

After considering the Reports of these three

Commissions, His Exalted Highness issued the last mentioned

Farman dated 17-1-1929, (marked III supra) with a view to

preserve the Paigah Estate and perpetuate the Paigah Family.

8. In para 2 of the above-said Farman dated 17-1-1929

(marked III) His Exalted Highness the Nizam directed as

follows:-

“Whatever property has hitherto been acquired or article

purchased or building constructed out of the income of the

Paigahs will be considered the property of the Paigahs and not

that of any individual, and it will not be liable to division as an

inheritance (Mathruka)"

9. H.E.H the Nizam further directed as per the said Farman in

Order III Para 9 thereof as follows:-

“Precious Stones, Jewellery, and rare articles which in

accordance with the principles laid down in the above

(Farman para 2) are the property of the Paigahs from olden

times, or have been purchased with money belonging to the

Paigahs, will remain with the Paigah Amir in Trust as

heirlooms of Paigah family. The Paigah Amir shall not have

the right to sell, pledge, or give them to any person. They can

however be lent for temporary use to members of the Paigah

family, after obtaining my sanction from time to time, provided

the Amir holds himself responsible for their safe and careful

use.”

10. In order III, Para (2) of the Farman (marked III supra)

H.E.H. the Nizam referred to another and third class of

property and directed as follows:-

“If there is any property left as intestate property (Mathruka)

in any Paigah the distribution thereof shall also be settled by

the same Committee”

The Committee referred to in the portion of the Farman

extracted above is Nawab Mirza Yar Jung Committee whose

report was submitted on 9

th

April 1929. H.E.H. the Nizam

accepted the said report and issued a Farman accordingly. In

the said report of Mirza Yar Jung Committee, a definite finding

was given that it was not proved by claimants that Nawab

Khurshid Jah left any property which was not acquired or

purchased out of the Paigah income within the meaning of

para (2) of the preliminary portion of the Farman.

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11. By reason of the finding of the Mirza Yar Jung

Committee negativing the existence of any Mathruka acquired

or purchased from sources other than paigah income there

were only two categories of Mathruka property of Nawab

Khurshid Jah viz,

(a) properties or articles purchased or buildings constructed

out of the income of the Paigah,

(b) Precious stones, Jewellery and rare articles purchased

with money belonging to the Paigah and held in trust by

Paigah Amir as heirlooms of Paigah family.

12. As per Firman dated 5

th

Shaban 1347 H (17-1-1929-

A.D), H.E.H. the Nizam prevented the distribution of the two

classes of Mathurka properties aforesaid and lists of

properties belonging to category (a) including all accreations

and additions thereto, so far as plaintiff is aware are set out in

the schedule herewith filed and marked IV and IV(a) are of the

approximate value of O.S.Rs.652058-2-0 and they are in the

possession of persons referred to in the said schedule. The

plaintiff is not aware of the extent and value of precious

stones, jewellery and rare articles referred to in category (b)

mentioned in para 11 above. The last mentioned properties

which ought to have been in the possession of the Defendant

No.1 as Amir Paigah were left for safe-custody in the

Government Treasury during the days of police action and

subsequently passed into the custody of Jagir Administrator

the Defendant No. 43 herein. The plaintiff tentatively values

the said properties mentioned in Category (b) aforesaid at O.S.

Rupees one lakh and claims her legitimate share therein after

the full extent and value thereof are ascertained.

13. The Jagirs in Hyderabad State including Paigah

having been abolished by Jagir Abolition Regulation No. 69 of

1358 F, with effect from 15

th

August 1949 the Said Firmans

precluding the partition of the aforesaid two categories of

Mathruka properties, ceased to be operative and plaintiff

became entitled to claim her legitimate share of Mathurka

Estate of the late Nawab Khurshid. Jah viz, her 29/2944

th

share which she tentatively values at the aggregate sum of

O.S. Rs 7408-1-1 as detailed in the Schedule IV and IV(a) para

12 referred to above of the aggregate tentative value of O.S.

Rs. 752058-20.

14. The cause of action for this suit arose at Hyderabad-

Dn, On 15

th

August 1949 when the Jagir Abolition Regulation

came into force and the Firmans of H .E.H. the Nizam

preventing the partition of the suit properties ceased to be

operative. The suit is in time, in any event, as the bulk of the

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properties in Schedule IV And IV(a) are immovable properties

and the other properties in category (b) And referred to in para

13 were held by the Defendant No. 1 the Amir Paigah In trust

and are now with Defendant No.43. Further the 14

th

and 15

th

August 1955 were holidays on account of Sunday and

Independence Day.

15. The plaintiff values this suit claim tentatively for

purpose of court-fees and jurisdiction at O.S.Rs. 7405-1-1,

the same being the value of her share of the properties

detailed in Schedule IV and IV(a), para 13 above and plaintiff

pays a Court-fee of O.S Rs. 562-7-0, and undertakes to pay

such additional court-fee, if any, after the divisible properties

are ascertained and their correct values are fixed.

16. The plaintiff submits that the Schedule IV and the

values stated therein are by no means exhaustive or complete

and similarly the values of precious stones and jewellery are

equally approximate and tentative. It is possible that there

may be other Mathruka properties also which are divisible

between the parties. The plaintiff claims her legitimate share

of 29/2944

th

in whatever properties that may be found to

belong to the Mathruka of the late Nawab Khurshid Jah and

undertakes to pay the appropriate court-fee.

17. This Hon’ble court has the jurisdiction to try this Suit

as the bulk of the immovable properties the subject matter of

this partition are situated in Hyderabad city and all the

Defendants except Defendant No.36 reside in Hyderabad

City.”

35. Interestingly, the plaint was amended first in the year 1957 and

paragraph 17A was inserted, more by way of response to the written

statement filed by defendant No.1 in respect of the properties

mentioned at Serial Nos.29 and 30 of Plaint Schedule IV.

Subsequently, the plaint was amended twice in the year 1958 so as to

insert paragraphs 17B, 17C and 17D. These amendments resulted in

the impleadment of some additional defendants in the suit, including

the State of Andhra Pradesh and the State of Myso re as defendant

20

Nos. 53 and 55 respectively.

36. These paragraphs 17A, 17B, 17C and 17D of the plaint are

extracted as follows:-

“17A. According to para 7 of the written statement the

defendant No.1 has asserted that the Matruka properties

mentioned in the list enclosed with plaint at serial No.29 and

30 of schedule No.4, Zamutanpur Ramdhan Chowdry and

Najeeb Bagh are in the possession of Misbahuddin Khan and

Ghousuddin Khan, by Virtue of right. This assertion has been

made by the defendant No.1, the Legal and sharia guardian of

both the said minors. This plaintiff does not Admit the

contention of ownership of both the above said sons of the

Defendant No.1. The names of both of them have been

included among the array of defendants. Thus the plaintiff is

entitled to sue and both the above said sons of the defendant

No.1 are liable to answer (the para 17A is added as per order

dated 20.9.57)

17B. That the plaintiff has come to know through the

written statement of the defendant No.1 that the properties

mentioned in items Nos.37 & 40 of schedule 4 and Nos 13 to

15 of the schedule 4A are in the possession of the state of A.P.

As these form the suit properties the state of A.P. is a proper

and necessary party to the suit. This hon’ble court has

accorded permission to implead the said state as defendant,

so it is impleaded as a party by way of amendment. This

defendant had no right whatsoever to possess the said

properties, as the said defendant is liable to pay mesne profit

of the same also and the plaintiff is entitled to them. Hence

the plaintiff is entitled to sue and the defendant is liable to be

sued. Notice u/s 80 CPC has been issued to the said

defendants. Having received the same the defendant has not

given any reply thereof in spite of the fact that two months

have elapsed since the receipt thereof.

17C. That as per written statement of the defendant No.1

Bal Raj, the defendant No.54 is in possession of the Bagh

Hussain Shah Vali, which is a suit property, so, he is

impleaded as a party and he is liable to pay mesne property

also. Amended as per order dated 25.1.58.

17D. that the plaintiff has come to know through the

written statement of the defendant no.1, that the properties in

items No. 35 & 36 of the schedule IV item No.16 of schedule

21

IVA (immovable) are in the possession of the state of Mysore.

As these are a part of the suit properties, the state of Mysore

is a proper and necessary party, to the suit, this Hon’ble court

has accorded permission to implead the state as defendant.

So it is impleaded as a party by way of amendment. This

defendant has no right whatsoever to possess the said

properties, so the said defendant is liable to pay mesne profits

also to plaintiff according to a share, she is entitled to. Hence

the plaintiff is entitled to sue the said defendant and the

defendant is liable to be sued. Notice u/s 80 cpc had been

issued to the said defendant of two months time passed after

the receipt thereof, but no convincing reply was given to the

plaintiff. (amended as per orders dated 4.10.58).”

37. In the year 1961, some of the parties to the suit entered into a

compromise. The parties who entered into the said compromise were

plaintiff Nos. 1 and 2 and defendant Nos.1, 5, 6, 7, 9, 11-14, 16-34,

35, 36, 37, 40-42, 44, 45, 46, 48, 49-52, 56-62, 90-94, 97, 99 and

100. It must be recorded at this stage that there was only one plaintiff

at the beginning namely Dildar-Un-Nissa Begum. But subsequently,

defendant No.38 got transposed as plaintiff No.2 and that is how there

were two plaintiffs.

38. The parties who entered into a compromise filed an application in

Application No.264 of 1961 under Order XXIII Rule 3 CPC, for

recording the compromise and passing a preliminary decree. The

reliefs sought in Application No.264 of 1961 make an interesting

reading and hence they are extracted as follows:-

“Application under Order 23, rule 3, Civil Procedure Code,

praying that in the circumstances stated in the memorandum

22

of compromised filed herewith the High Court may be pleased

1) to pass a preliminary decree in terms of the compromise

after deciding the contentions questions mentioned in paras

18 and 19 of the compromise and the rights of those who have

not joint the compromise.

iii) to pass a final decree in favour of defendants Nos. 1, 51, 52

and 42 to the extent of properties given to their exclusive

shares as mentioned in paras 4, 7, 9 and;

IV) to appoint Shri Hafeez Ahmed Khan Retired Sessions

Judge, Advocate, residing at Fateh Sultan Lane, Nampally,

Hyderabad as Receiver-cum-Commissioner with the powers

set out in the memo of compromise and to proceed with the

case against the other defendants”

39. It appears that the defendant Nos. 1, 2, 5 to 18, 21 to 29, 33, 34,

36 to 43, 47, 49 to 55, 77, 78 and 95 to 97 filed their written

statements. The other defendants did not file any written statement.

Defendant Nos. 3, 4, 19, 29 to 32, 35 and 48 were set ex parte.

40. On the basis of the pleadings, the Court framed as many as 50

issues. Some of the issues also had sub issues.

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

42. During trial, six witnesses were examined on behalf of the

plaintiff. Eleven witnesses were examined on behalf of defendant No.1.

One witness was examined on behalf of each of the defendant Nos.2,

8, 10, 15, 17, 41, 43, 47, 56 to 62, 86 and 87 and 88. Two witnesses

were examined on behalf of defendant Nos.12 and 13, defendant Nos.

48 and 49 and defendant No.97. Six witnesses were examined on

behalf of defendant No.39 and four on behalf of defendant No.53.

23

43. On the side of the plaintiff, 30 documents were marked as

Exhibits P.1 to P.30. Defendant No.1 produced 52 documents which

were marked as Exhibits D.1(1) to D.1(52). Other defendants also

marked some documents.

44. Eventually, the learned Judge of the High Court sitting as a Trial

Judge, passed a judgment and decree on 28.06.1963, both in the suit

and in the application under Order XXIII Rule 3 CPC. The operative

part of the judgment which contained the decre e intended to be

passed, comprised of two portions, one relating to the defendants who

were not parties to the compromise and the other relating to those

who were parties to the compromise. The operative portion of the

judgment is extracted as follows:

“The result of the above discussion is that the suit of the

plaintiffs in relation to the defendants other than the parties

to the compromise shall be decreed in the following terms:-

(1) That the properties.

(a) Mentioned in plaint schedule IV as also detailed

in list ‘A’ forming annexure to Application No.37/59,

excepting items 26, 29, 30, 34, 35 and 36 and houses

bearing municipal Nos. 28 and 29 in item No.22 of

the Schedule;

(b) Khurshid Bagh at Lallaguda;

(c) The oil paintings, chandeliers and furniture is

Baradari.(Item No.1 in schedule IV) and Ligampalli

Garden (Item No.27) referred to in the first part of

Schedule IV-B, the number and the value of which

shall be determined in the final decree proceedings;

(d) The fire arms and weapons and their sale

proceeds, referred to in part-II of Schedule IV-b, the

number and value of which shall be decided in the

24

final decree proceedings as per the decision under

issues 16 and 18.

(e) The articles in Part III, sub-item I of schedule

IV-b, as detailed in Exe.P-10 and P-12 taken over by

the Jagir Administrator and deposited in the Bank.

(f) The gold coins referred to in sub-item II of

Schedule IV-b which are taken under Ex.P-9 by the

Jagir Administrator; and

(g) The jewellery as contained in Ex.P -8 and

inventory prepared by the Receiver

are properties coming from Khurshid Jah’s time,

covered by para-2 of the Firman Ex.P-30 dated 5

th

Shabban, 1347 H. and Order 3 Clause 9 of the same

Firman and are liable to be partitioned among the

surviving legal heirs of late Nawab Khurshid Jah;

(2) That properties items 37 and 40 in Schedule IV will

also be available for partition only in case they happen to be

released by the Government;

(3) That plaintiff No.1 and defendants 1 (since dead) to

35, 44, to 49, 51, 52, 56 to 62, 90, 94, 98, 100 and 102 to 112

are the heirs through Zafar Jung in the line of succession of

Khurshid Jah, and plaintiff No.2 and defendants 36, 37, 39 to

42, 50, 97, 99 and 113 to 118 are the heirs through Imam

Jung, in the line of succession of Khurshid Jah, as detailed in

Annexure II to the judgment;

(4) That in the aforesaid properties as also those

included in Annexure IV to the Judgment, defendant No.1

being dead, his legal representatives 51, 52 and 102 to 112

are entitled to a 1/3

rd

share; and in the remaining 2/3rds, the

surviving legal heirs in the line of Imam Jung are entitled to

one half and the surviving legal heirs in the line of Zafar Jung,

excluding defendants 51, 52, 102 to 112 to the other half, and

their individual shares are as detailed in Annexure III to this

judgment.

(5) That Mr. P. Ram Shah, Advocate of this Court, is

appointed Commissioner and he shall partition the same

subject to the directions contained in this judgment and to

such further directions as may be given from time to time by

this Court;

(6) That the Commissioner shall take accounts from the

heirs of defendant No.1 and submit his report on the following

matters;

(a) The income and savings from the suit property during

the period defendant No.1 was in management as Amir

25

Paigah, from 1950 upto the date of his death 26-11-1961,

as per the decision on issue No.37;

(b) The sale proceeds of items 51 to 53 of Schedule IV

realized by defendant No.1;

(c) The excess expenditure alleged to have been met by

defendant No.1 to the extent of one lakh of rupees

referred to in the judgment in connection with issue

No.40;

(d) Expenses incurred by defendant No.1 for repairs,

extensions and improvements in Bagh Lingampally (item

No.27) as per the decision on issue No.22;

(7) The Commissioner while partitioning the property

shall also take into account the amounts from defendants 9,

10, 11, 14, 15, 16, 18, 19, 21, 22, 24, 25, 30, 31, 32, 40, 42,

48, 49, 62, and 93 as per Annexure V towards d amages

caused by them to the suit properties, in determining the

extent of their share;

(8) The defendants 86-88 being alienees in relation to

shops bearing Municipal Nos.III C-113 to 120, which is a

portion of item No.45; house bearing municipal No.20-3-842

situate at Shah Gunj comprising 420 sq.yds; house bearing

No.2-2-722 and tinshed bearing No.2-2—723 situate at Shibli

Gunj (both known as Rath Khana) ; and Baggi Khana, bearing

Municipal No.2-3-184 situate at Shibli Gunj, the equities of

these alienees may be worked out so far as possible by setting

apart the alienated properties to the share of the alienor,

defendant No.10, if that can be done without injustice to the

other sharers.

The remuneration of the Commissioner is tentatively fixed

at Rs.600/- per month.

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

assets.

Court fee shall be collected as and when the properties are

valued and partition is being effected.

So far as the parties to the compromise are concerned, a

decree shall follow in terms of the compromise, excluding

such terms as relate to appointment of and directions to

Receiver and Commissioner and also terms regarding the

properties which have been he ld to be the properties of

defendants 2 and 39, viz., item No.26 and house Nos. 28 and

29 in item No.22 in Schedule IV; and so far as item No.34 of

Schedule IV is concerned, that property as also the sale

proceeds connected thereto shall be available for partition

amongst the parties to the compromise, only after setting

apart the due shares of defendants 2 to 4, 10, 47, 94 and 98

as the heirs of Zafar Jung, which work out at double the

26

shares entered in Annexure III.

While allotting the shares to the parties to the compromise,

equities of alienees, defendants 119, 120 and 121 as also of

defendant No.77 may be worked out as far as possible by

setting apart the alienated properties to the share of the

respective alienors as directed in the judgment under issues

41 and 49.

The Commissioner appointed under para(5) of this order

shall partition the property and carry out the terms of the

compromise subject to the directions contained in the

judgment and such other directions as may be given from time

to time.

The expenses incurred in the execution of commission

shall be met out of the assets.”

45. There were five annexures to the judgment. Annexure-I contained

the list of heirs in the line of succession of Khurshid Jah and the

shares to which they were entitled. Annexure-II contained the list of

surviving legal heirs in the line of succession of Khurshid Jah and

their respective heirs. Annexure-III indicated the amount of each share

of the respective sharers. Annexure-IV contained the list of immovable

properties which were held to be Mathruka of late Khurshid Jah. In

fact, Annexure IV to the judgment was actually the reproduction of

Plaint Schedule IV except those not decreed. Annexure-V contained

the list of properties damaged and the extent of damage caused by the

respective parties.

46. It must be mentioned here that the suit CS No.14 of 1958 on the

file of the present High Court for the State of Telangana is not merely a

strange and curious case but is one which continues to baffle both the

27

legal and the jural fraternities, for more reasons than one, both right

and wrong. One of the curious aspects of this case was the description

of the immovable properties listed in Plaint Schedule IV. Though a

copy of the original plaint has been filed before us as part of the paper

books, it does not contain the Schedules. However, Annexure-IV to the

judgment dated 28.06.1963 in support of the preliminary decree,

contains a reproduction of Plaint Schedules IV, IV (a) and the items

described in Lists A, A-2, A-3 and A-4 of Application No. 37/59. The

same will provide the reader a fair opportunity to understand as to

how innumerable items of immovable properties were sought to be

described in the Plaint Schedules. Hence, we are constrained to

reproduce the same as follows:

“Annexure IV

List of immovable properties which are held to be Matruka of late Khurshid

Jah

S.No.

Item No. shown in

plaint schedule

Description Name of Mahalla

or place

1 2 3 4

Plaint Schedule IV

1. 1. Kotika Bangala also

called Bara Dari,

House No.III C-3-1060.

ShahGunj

2. 2. Isharat Mahal, House

No.III C-3-1

”

3. 3. Divan Khana, House

No.III – C-3-1040

”

4. 4. Chota Mahal No.1,

House No.II C-3-140.

”

5. 5. Naya Mahal House

No.III C-3-1053/13

”

6. 6. Khana Bagh with

buildings House No.III

C-3-139.

”

7. 7. Deodi Imam Jung ”

28

House No.III-C-3-1059

and 1066

8. 8. Nawazish Mahal House

No.III-C-3-123/5.

”

9. 9. Khurshid Mahal House

No.IIIC-3-123/1

”

10. 10. Fareed Bagh with

building portion House

No.IIIC-3-123/3 and

123/4

”

11. 11. Nubarak Mahal House

No.III C-3-1059/12.

ShahGunj

12. 12. Kotar Ka Makan,

Military Guard

Quarters. House No. III

C-3-121

”

13. 13. Khas Mahal House

Nos. IIIC-3-1059/3

IIIC-3-1059/4

IIIC-3-1059/6

IIIC-3-1059/7

IIIC-3-1059/9

”

14. 14. Kotora Hauz, III C-3-

1040

”

15. 15. Bangala Nagpanchmi.

II C-3.

”

16. 16. Mahal Sara III C-3-

1059/2

”

17. 17. Chotal Mahal (No.2) III

C-3-1059/1

”

18. 18. Jile Khana III C -3-

1059/8

”

19. 19. Chpala Khana, III C-

30-1059/10

”

20. 20. Club Ka Makan III C-3-

1059/11

”

21. 21. Behind Ishrath Mahal

House No.III C-3-1

”

22. 22. Deodi Bahadur Jung

House Nos.C-3-27

”

23. 23. Deodi Ghousuddin

Khan. III C-3-23.

”

24. 24. Kutub Khana III C-3-

nil

”

25. 25. Chinni Khana III C-3-

1040/1

”

26. 26. & 27 Lingampally Garden,

containing a large

building and a few

small quarters, area 53

acres within the

compound wall and 77

Mohalla

Lingampalli on old

road University

Adikmet.

29

acres outside the wall.

Survey No.200; village

Lingampally, Taluk

Garbi, Dist. Hyderabad

within city municipal

limits, No.A-9-1138.

27. 28. Waheed Bagh adda

Makai, two small plots

sliced out of

Lingampally garden

area outside the wall

containing a small old

building and huts

rented out to tenants,

area 2¼ acres.

Survey No.200.

Mohalla

Chikkadpally

28. 31. Sarurnagar garden

building and garden

with compound wall

area 3 acres

Village Sarurnagar

taluk Sharki.

29. 32. — do — area 2 acres ”

30. 33. Hussain Shah Wali

garden building in

ruins garden enclosed

with compound wall.

Survey No.38 area 8

acres.

Village Hussain

Shahwali Taluk

Garbi

31. 37* Hafizpet patta lands,

compact area of 1333

acres.

Hafeezpet Taluk

Garbi

32. 38 Hydernagar patta

lands. Compact area of

1210 acres.

Hydernagar Taluk

Garbi

33. 39 Hafeezpur, compact

area of 2684 acres.

Hafeezpur

34. 40* Ghansi Mian Gude

patta lands, compact

area 743 acres.

Ghansimianguda

35. 41 Shops 21 numbers,

Bazar, Shamoul Umra,

Muncipal Nos.III C-3-

1031 to 1033, 1036 to

1038, 1047 to 1050.

Mohalla

Shamsulumra

36. 42 Shops 6 numbers

Umda Bazar IIIS-549

to 554

Mohalla

Umdabazar Near

Dood Bowli

37. 43 Shops 9 number Dood

Bowli III C-2- to 8 1155

and 1156.

Mohalla Dood

Bowli Darwaza

38. 44 Shops 32 numbers

Bazar Shibli Gunj, III

C-3-125 to 137, 151 to

Mahalla Shibli

Gunj

30

159, 146 and 147.

39. 45 Shops 34 numbers

Bazar Khurshid Gunj

III C-3-89 to 120, 722

and 752.

Mohalla Khurshid

Gunj

40. 46 House 1

number III

C-3-938

Shah Inayat Gunj.

41. 47 ” number III

C-3-841

Khurshid Gunj.

42. 48 ” number III

C-3-184

Khurshid Gunj.

43. 49 ” number III

C-3

Shah Inayat Gunj.

44. 50 House 1 number III

with a spacious

compound.

Lallaguda

45. 51 Burhanpur lands

survey No.333 102

acres (outside

Hyderabad Estate)

Umagir Village

Burhanpur Dist.

Madhya Pradesh

46. 52 Poona lands (outside

Hyderabad State)

Opp. Boat Club in

Poona

47. 53 Khandala house

(Outside Hyd erabad

State)

Khandala Bombay

State.

Plaint Schedule

IV-a-

48. 1 Malkaram patta lands. Malkaram Tq.

Shahbad

49. 2 Hasmatpet Patta Lands Hasmatpet Taluk,

Garbi

50. 3 Dilwarguda ” ” Sultanpur T q.

Kalabar, Dist.

Medak

51. 4 Sahebguda ” ” Vill.. Sahebgud

Taluk

Ibrahimpatnam

52. 5 Kaderabad ” ” Kaderabad Taluk

Ibrahimpatam

53. 6 Gaddi Annaram (Malla

Bundum)

Gaddi-Annapuram

taluk Sharqi

54. 7 Makta Mohd. Bux

Khan.

55. 8 Lallaguda, Patta

Lands.

Lallguda Tq.

Sharqi

56. 9 Nachwaram ” Nachwaram Tq.

Sharqi

57. 10 Bagh Saheb Jan

garden enclosed with a

compound wall.

Phisalbanda Zafar

Naga, Hyderabad

58. 11 Gulbagh garden land. Near old within

municipal limits

31

59. 12 Daricha Bohra open

plot of land.

Near

Hussainialam

Properties mentioned

in list ‘A’ in Appln.

No.37/59. List ‘A’

60- 1 Plot No.1 about 4272 sq. yds. Boundaries:

North estate house occupied by KulsumBi,

tenant S, E and , W: roads.

61. 2 Plot No.2 5206 sq. yds. Boundaries : North

house occupied by Zulfiqar Ali Khan S :

Estate house and Vacant land E. Sajanlal’s

house W: road.

62. 3 Plot No.3, 872 sq. yds. Boundaries: N:

Vacant land of this estate: S: road, E:

Sajanlal's house and W: estate house.

63. 4 Plot No.4, 1250 sq. yds. Boundaries : N :

Vacant land of this estates, S: ditto: E -

estate house occupied Zulfiqar Khan and W:

Road.

64. 5 Plot No.5, 578 sq. yds. Boundaries : N:

Vacant land of this estate, S : ditto E: road,

W: estate house occupied by Fakruddin

Khan, tenant.

65. 6 Plot No.6, 1556 sq. yds. Boundaries : N :

vacant land of this estate and house

occupied by Fakruddin, tenant: S: -do-.

occupied by Kulsumbi East: Road and West

: estate house occupied by Abdul Ali tenant.

66- 7 Plot No.7, 1522 sq. yds.: Boundaries : N :

road, Tiled house of this estate : E: cement

road, W. road.

67. 8 Plot No.8, 734 sq. yds.. Boundaries : N:

Tiled house of this estate, S: Sajanlal's

house: E: cement road and W: house

occupied by Zulfeqar Ali, tenant.

List ‘A’ – 2:

68. 32 Shop No.III C -184

named estables

Khurshid gunj

69. 33 “ III C-722 named

Rathkhana

”

70. 34 “ III C-723 named

Adda Jhatka

”

71. 35 Double-storeyed house

No.III C-752

”

List ‘A’ – 3:

72. 1 HQ house III C-121 Shibligunj Bazar

73. 2 Band room III C-122 ”

74. 3 Nawasish Mahal IIIC-

123/4

Shibligunj Bazar

75. 17 Room No. III C-150 ”

76. 27 ” III C-149 ”

77. 28 ” III C-843 ”

32

78. 29 ” III C-842 ”

79. 32 ” III C-999 ”

80. 33 Fallen land about 4250 sq.yds. Boundaries:

N: Hq. house and road: S: Nawazish Mahal

E: room of this estate: W: (torn).

List ‘A-3 contd.

81. 34. Fallen land 400 sq.yds. Boundaries: No.

road, S: Khana Bagh, E: road: W: fallenland.

82. 35. ” 2 20 sq.yds. Boundaries: estate’s

house named kitchen, S: road, E: Kitchen’s

Gate : W: rooms of this estate.

List ‘A-4.

83. 3 Fallen room No.103. Shamsul Umra

84. 5 Bungalow No.2 ”

85. 7 Mulgi No.1041 ”

86. 12 Bungalow No.1051 ”

87. 13 Mulgi No.1052 ”

88. 14. ” 1053 ”

89. 15. Vacant land Opp: Jile Khana gate, 150

sq. yds. Boundaries: N: Mosque and

road, S: Kishenlal’s House, E: cement

road and W: Kishenlal’s house.

90. 16. Katora House named Sadar Mahabibi

in Possession of Jagir Administrator

91. 17. Land of 3 fallen shops.

92. 18. Fallen house with land in Lalaguda,

No.12/1-514, Khrushid Bagh at

Lallaguda.”

47. After the preliminary decree dated 28.06.1963, some of the

parties to the suit transferred their undivided shares in the suit

scheduled properties in favour of (i) the Nizam and (ii) another person

by name Nawab Khasim Nawaz Jung. These two persons were

impleaded as defendant Nos. 156 and 157 respectively. It may be

recalled at this stage that when the suit was originally filed, there were

only 43 defendants. At the time when arguments were advanced in the

suit, the number of defendants went up to 119 and when the

preliminary decree was passed, the number of defendants became

33

135. It increased further after the decree and the Nizam and Nawab

Khasim Nawaz Jung came to be impleaded as defendant Nos.156 and

157, after they purchased the undivided shares to the extent of 80%

from the decree-holders.

48. After three years of the preliminary decree, the Advocate

Commissioner-cum-Receiver filed an application in Application No.

268 of 1966 to take over possession of the lands, including the land in

Survey No. 172 at Hydernagar village, which was part of Item No.38 of

Plaint Schedule IV. No counter was filed by the respondents. Though

the Plaint Schedule and the preliminary decree did not mention

specific Survey number(s) in Hydernagar, the Receiver claimed in his

report that he studied the Revenue Records/Pahani Patriks/Khasra

Pahanis and found that Survey No. 145 (220.10 acres), Survey No. 163

(175.06 acres), and Survey No. 172 (196.20 acres), were all situated at

Hydernagar, and were part of Item No.38 Schedule IV of the plaint.

49. In the meantime, HEH the Nizam (defendant No. 156) vide a

registered sale deed dated 23.02.1967, sold his undivided half share in

favour of F.E. Dinshaw Ltd., which later became M/s. Cyrus

Investments Pvt. Ltd.

2

This transfer was recognized, and consequently,

Cyrus was impleaded as defendant No. 206 in the suit CS No.14 of

2

For short, “Cyrus”

34

1958.

50. The High Court vide order dated 24.03.1967, passed in

Application No. 268 of 1966, directed the District Collector, Hyderabad

(who was in possession of the properties on behalf of the State

Government) to deliver possession of the properties to the Receiver on

two grounds namely: (i) that the State Government was a party to the

preliminary decree; and (ii) that the property in question was declared

to be “Mathruka” property.

51. Thereafter, the Receiver vide Application No. 73 of 1970 in CS No.

14 of 1958, submitted a scheme of partition with respect to the suit

schedule movable and urban immovable properties. The High Court

vide order dated 29.01.1971 accepted the scheme, and directed the

Receiver to also submit a scheme with regard to the suit schedule

agricultural lands.

52. The Commissioner-cum-Receiver then filed a curious application

in Application No. 139 of 1971 in CS No. 14 of 1958 seeking orders as

to whether he should prepare a scheme of partition with regard to

claims only (but not actual physical land). This was on the ground

that the Government as well as third party-protected tenants were in

actual possession of the suit schedule agricultural lands. An

explanatory note was attached to the application stating that the

35

Collector, who was ordered to hand over the possession of Hydernagar

lands, was raising an objection that it is Government land.

53. By order dated 16.09.1972 passed in Application No.139 of 1971,

the High Court allowed the Receiver to partition only the claims in

terms of value of the lands as the lands were not in possession of the

shareholders.

54. Accordingly, the Receiver submitted a scheme of partition on

03.12.1972, distributing only the claims with regard to survey

numbers including Survey Nos.145, 163 and 172 of Hydernagar.

55. The Receiver then filed Application No. 19 of 1973 in CS No. 14 of

1958, impleading only the State of Andhra Pradesh as a party, praying

for a direction to the Collector to hand over the possession of Survey

Nos.145, 163 and 172 of Hydernagar village. None of the parties who

were likely to be dispossessed were made parties to this application.

56. The High Court allowed Application No. 19 of 1973, vide order

dated 05.07.1974 directing the Government to give symbolic

possession of lands measuring acres 220 guntas 18 in Survey No. 145

and measuring acres 175 guntas 6 in Survey No.163 to the Receiver.

Insofar as the other lands are concerned, the High Court recorded that

the Government is not in a position even to give symbolic delivery and

hence the Receiver was directed to take steps available in law for

36

taking possession from the actual occupants of the lands including

the land in Survey No. 172, Hydernagar village.

57. Since the parties were unable to agree upon allotment of share of

the lands, the High Court vide order dated 31.01.1976, passed in

Application No. 139 of 1971, referred the matter to the District

Collector under Section 54 of the CPC for division and allotment to the

sharers. The District Collector directed the Revenue Divisional Officer

3

,

Chevella to partition the schedule lands. The RDO, Chevella divided

and allotted the lands in Survey Nos.163 and 145 of Hydernagar

village to the sharers in different extents, but no such exercise was

undertaken in respect of Survey No. 172.

58. Insofar as the land in survey No.172 was concerned, it was found

that Faisal Patti for 1978-79 had been issued by the Mandal Revenue

Officer, Balangar, Ranga Reddy District mentioning 25 sub-divisions

in Survey No. 172 made during the tenure of the Paigah. The names of

24 persons [including Boddu Veeraswamy, Ruquia Begum, Waris Ali

and Ghani Shareef] who were allegedly given Pattas prior to 1948 by

the Nizam/his Revenue Secretariat were also mentioned in the said

Faisal Patti.

3

For short, “RDO”

37

59. The Receiver therefore filed a report, on which the Court passed

an order dated 12.06.1981 in Application No. 139 of 1971. The Court

noted that the Receiver’s report was with respect to partition of all

other survey numbers other than Survey No. 80 of Hafizpet and

Survey No.172 of Hydernagar. The Court directed the copy of the

report to be published.

60. Upon coming to know of the steps so taken by the Receiver, the

State Government filed an application in Application No. 44 of 1982 in

CS No. 14 of 1958 seeking amendment of the preliminary decree to

delete Item Nos.35 to 38 and 40 of Schedule IV, contending that the

decree was not in consonance with the judgment. This application was

dismissed by the High Court vide order dated 18.12.1982.

61. At this stage, Nawab Khasim Nawaz Jung (defendant No.157) and

Cyrus (Defendant No. 206) filed several applications before the High

Court in CS No. 14 of 1958, including Application No. 266 of 1983.

The relief sought in Application No. 266 of 1983 was “to issue an order

for handing over possession of Survey No. 80 of Hafeezpet village,

measuring 48,477.5 cents (about 484 acres) and Survey No.172 of

Hydernagar measuring 19,650 cents (about 196.5 acres) to defendant

Nos. 157 and 206 and for directing the Receiver-cum-Commissioner to

execute the warrant of possession through City Civil Court and put

38

defendants 157 and 206 in possession of Survey No. 80 of Hafeezpet

and Survey No. 172 of Hydernagar respectively”. The sole respondent

to the application, namely the Receiver reported “no objection.” None

of the persons in possession of the lands in Survey No. 172 through

Pattas were impleaded as parties to the Application No. 266 of 1983.

The High Court vide order dated 20.01.1984 allowed the application,

directing the Receiver-cum-Commissioner to hand over possession of

the land in Survey No.80 of Hafeezpet and Survey No. 172 of

Hydernagar to Khasim Nawaz Jung (defendant No.157) and Cyrus

(defendant No. 206) by executing a warrant of possession through the

City Civil Court and putting Khasim Nawaz Jung (defendant No.157)

and Cyrus (defendant No. 206) in possession. It is stated by the

parties that though High Court issued warrant of possession to the

Receiver, the same could not be executed (probably because the lands

were in possession of third parties).

62. Eventually, the High Court, vide order dated 16.11.1984 passed

in Application No.276 of 1984 in CS No. 14 of 1958, discharged the

Receiver on the ground that he had not submitted a scheme for

distribution despite a specific earlier order dated 27.10.1984 to this

effect and directed the Receiver to hand over the records to the Deputy

Registrar of the High Court by 01.12.1984.

39

63. Pursuant to the said order, the Receiver handed over the charge

of his office to the Deputy Registrar of the High Court, thereby ending

the role of the Receiver in CS No.14 of 1958 with regard to land in

Survey No. 172. The net result is that the order and the warrant dated

20.01.1984 stood unimplemented or unexecuted by the Receiver.

64. Thereafter, Cyrus (defendant No.206) and Nawab Khasim Nawaz

Jung (defendant No.157) executed a Deed of Assignment on

29.11.1995 in favour of M/s Goldstone Exports Pvt. Ltd.

4

to the extent

of 98.10 acres in Survey No.172, Hydernagar. On the basis of this

assignment, Goldstone filed four Applications namely, (i) Application

No. 992 of 1995 for recognition of the assignment of the rights to land

of the extent of acres 98.10 guntas in Survey No. 172 at Hydernagar

village; (ii) Application No. 993 of 1995 for impleading them as parties

to the suit; (iii) Application No.994 of 1995 for modification of the

order passed on 20.01.1984 in Application No. 266 of 1983 by

substituting the names of the petitioners and directing delivery of

possession of the land of the extent of half share out of acres 196.20

guntas in Survey No.172, Hydernagar; and (iv) Application No. 995 of

1995 for a direction to the revenue authorities to enter their names in

the concerned records.

4

For short, “Goldstone”

40

65. In the aforesaid applications, only the Assignors i.e., Khasim

Nawaz Jung (defendant No.157) and Cyrus (defendant No.206) were

impleaded as parties. Third parties who were in possession as per the

Faisal Patti of 1978-79 were not impleaded as respondents in these

applications.

66. These applications, I.A. Nos.992, 993, 994 and 995 of 1995 were

allowed unopposed, by the High Court by order dated 28.12.1995.

67. Thereafter, Goldstone and others filed an execution petition in

E.P. Nos.3 of 1996 under Order XXI Rule 35 CPC before the District

Court, Ranga Reddy District seeking delivery of Item No. 38 of Plaint

Schedule IV (survey No. 172 of Hydernagar) pursuant to the

preliminary decree dated 26.08.1963 in CS No.14 of 1958. The

Assignors namely, Khasim Nawaz Jung (defendant No.157) and Cyrus

(defendant No. 206) alone were arrayed as respondents- judgment-

debtors in the said execution petition. Third parties in actual physical

possession were not impleaded.

68. The District Court, Ranga Reddy District passed an order dated

29.03.1996 in E.P. No. 3 of 1996 directing the Bailiff of that Court to

deliver land of the extent of 98.10 acres in Survey No. 172 to the

petitioners in E.P. No. 3 of 1996, in accordance with the assignment

recognised by the High Court and in pursuance of the order dated

41

28.12.1995 passed in Application No. 994 of 1995. The Bailiff of the

Court then submitted a report dated 19.04.1996 stating that there

was no resistance from the judgment -debtors and that he had

delivered the possession of the land to Goldstone.

69. Upon coming to know of the same, several persons who were in

possession of portions of the land in Survey no. 172, Hydernagar, filed

separate applications seeking various reliefs. They may be tabulated

for easy appreciation as follows:

Application

Number

Filed by Provision of law under

which filed

Prayer in the application

585 of 2002 34 persons Order 21, Rule 97 to

101 r/w section 151,

CPC

To adjudicate and allow their

claim to the extent of Acres

5.28 gts in Survey

No.172/10

708 of 2002 2 persons Section 151, CPC To adjudicate and allow their

claim to the extent of 722

sq.yards forming part of

Acres 5.28 gts in Survey

No.172/10

1318 of 2003 34 persons Section 47 r/w Order

21, Rule 58 CPC

To adjudicate their claim

and direct re-delivery of

possession

1319 of 2003 105 persons Order 21, Rule 99 r/w

section 151

To direct symbolic redelivery

of possession

1320 of 2003 14 persons Order 21, Rule 97 r/w

section 151 CPC

To recall the warrant dated

29.03.1996 in E.P. No. 3 of

1996

70. The District Court, Ranga Reddy District refused even to

entertain the above applications on the ground that it cannot go

42

beyond the mandate of the High Court issued in Application No 994 of

1995.

71. Aggrieved by the refusal of the District Court even to entertain

their applications, a society by name Sri Sathya Sai Cooperative

Housing Society Ltd. filed a revision petition in C.R.P. No. 4921 of

1996 before the High Court. Some members of another society by

name Set-win Employees Housing Cooperativ e Society and 33

members of Sri Satya Sai Co-operative Housing Society Ltd. filed

❖ OSA Nos.10, 11 and 20 of 1996 questioning the High Court’s

order dated 28.12.1995 in Application No. 994 of 1995; and

❖ OSA No.19 of 1996 against the High Court’s orders in another

Application No. 963 of 1995 in C.S.No.14 of 1958 pertaining

to another E.P. No.4 of 1996.

72. A Division Bench of the High Court allowed those original side

appeals by order dated 06.11.1996 and:

❖ Directed the District Court, Ranga Reddy Dist. to entertain

and dispose of the claim petitions on merits;

❖ Directed the restoration of possession of the land to the claim

petitioners and to hear their objections before passing any

orders in the E.P(s).

73. A similar order was passed in C.R.P. No.4921 of 1996 directing

the District Court, Ranga Reddy District to register and dispose of the

claim petitions on merits.

74. Challenging the said orders, Goldstone Exports and others filed,

❖ S.L.P. (C) Nos.8787-8789 of 1997 challenging the High Court’s

order dated 06.11.1996 in OSA Nos.11 and 20 of 1996; and

43

❖ S.L.P. (C) No. 23706 of 1996 against the orders in OSA No. 10

of 1996 (pertaining to Application No. 994 of 1995 and E.P.

No. 3 of 1996).

75. By order dated 14.08.1997, this Court allowed all those SLPs and

remanded OSA Nos.10, 11 and 20 of 1996 back to the High Court.

This was the first order of remand.

76. In the interregnum, Goldstone and 15 others filed Application No.

517 of 1998 in CS No.14 of 1958 praying for passing a final decree,

impleading the LRs of Nawab Khasim Nawaz Jung (defendant No. 157)

with regard to 98.10 acres in Survey No.I72 of Hydernagar village on

the ground that they have been delivered possession of the property by

the District Judge, Ranga Reddy District on 17.04.1996 pursuant to

the direction of the High Court dated 28.12.1995 in Application

No.994 of 1995. This application was allowed by the High Court by

order dated 24.04.1998 and a final decree came to be passed in favour

of Goldstone, recording that possession of the property measuring

acres 98.10 guntas in Survey No. 172, Hydernagar village (Item No.38

of Schedule-IV) had been delivered to them by the Bailiff of the Court

of the District Judge, Ranga Reddy District on 17.04.1996 in E.P. No.

3 of 1996. Perhaps this must be the first order of its kind, in the

history of a partition suit, where a final decree came to be

44

passed after the execution of the preliminary decree and taking

delivery of possession of the property.

77. Within a few months of the passing of the final decree, the

original side appeals remanded back from this Court were taken by

the Division Bench of the High Court and they were dismissed by

order dated 10.11.1998. It was held therein that the claim petitions

were not maintainable and that the claimants therein were claiming

rights through the parties to the decree in CS No.14 of 1958. In effect,

it was held that the claims of the obstructionists are through some of

the judgment-debtors and that therefore applications under Rule 97 or

99 of Order XXI are not maintainable, at the instance of the judgment-

debtors, or persons claiming through them.

78. The order of the High Court dated 10.11.1998 became the

subject matter of challenge before this Court in Civil Appeal Nos.7983

of 2001 with Civil Appeal Nos.7984-85 & 7986-88 of 2001. These

appeals were allowed by this Court by a decision dated 23.11.2001,

reported in NSS Naryana Sarma vs. M/s Goldstone Exports Private

Ltd.

5

This Court took the view that the claim petitions were very much

maintainable, as the claim petitioners were claiming rights

independently under the provisions of the Jagir Abolition Regulations.

5

(2002) 1 SCC 662

45

After so holding, this Court remanded the matter back to the High

Court for a fresh consideration of the claim petitions. This Court

directed that the petitions filed by the appellants before this Court (in

that case) had to be placed before a Single Judge for consideration.

79. Accordingly, all the applications including Application No.994 of

1995 were placed before L. Narasimha Reddy, J., (as he then was). The

learned Judge framed as many as 11 issues and 2 additional issues as

arising for consideration in all those applications.

80. Eventually, the learned Judge disposed of all the applications by

an order dated 26.10.2004, whose operative portion, extracted

hereunder, is self-explanatory:

“68. For the foregoing reasons;

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

(b) Application Nos.585 and 708 of 2002, and 1318 to 1320 of

2003 are allowed.

(c) The petitioners pleaded throughout that the land in question

was vacant. It has already been found that the filing of E.P. in

the Court of District Judge, Ranga Reddy District and the

various steps taken therein are contrary to law. Hence, the

alleged delivery of possession in favour of the petitioners, is

held to be symbolic.

(d) The respondents are found to be holding title and possession

of the lands covered by the respective sale deeds in their

favour. Inasmuch as the delivery of possession was only

symbolic, that too as regards vacant land, it shall be open to

them to remain in possession of the said land. The petitioners

do not have ony right. title and interest in respect of the land.

which constituted the subject matter of E.P.No.3 of 1996.

(e) In case there is any resistance from the petitioners as to the

right of the respondents to remain in possession of the land, the

District Court, Ranga Reddy shall direct re -delivery of

possession of such land to the respondents, if an application is

filed for this purpose.

(f) It shall be open to the petitioners to take such steps as are

46

open to them in law, in relation to the assignment of rights in

their favour.”

81. Aggrieved by the said order of the learned Single Judge dated

26.10.2004, the assignees of decrees filed a batch of appeals in OSA

Nos. 52 to 59 of 2004. By a common order on 23.06.2006 the Division

Bench of the High Court allowed the appeals holding that the claim

petitioners failed to establish their independent right, title and interest

much less possession of whatsoever nature.

82. Against the order dated 23.06.2006, the claim petitioners filed

appeals in C.A.Nos. 3327-3331 of 2014 before this Court. When the

appeals came up for hearing before this Court, it was noticed by this

Court that one of the Judges of the Division Bench (Just ice B.

Seshasayana Reddy) which passed the order impugned therein, had

earlier passed an order, while he was a District Judge, Ranga Reddy

District in favor of the claim petitioners. Therefore, all the counsel

representing various parties conceded before this Court that the

common judgment of the Division Bench dated 23.6.2006 in the OSAs

be set aside and the matter remanded back once again. Accordingly,

this Court allowed the appeals by order dated 05.03.2014 and set

aside the order of the Division Bench o f the High Court dated

23.06.2006 and remanded the OSAs back to the High Court.

47

83. After the order of remand, the original side appeals were listed for

hearing before a Division Bench of the High Court along with several

applications. On 14.03.2018, the Division Bench of the High Court

passed an order merely categorizing all pending appeals and

applications arising out of CS No.14 of 1958 into 14 types and

directing the parties to get ready for arguments in all those appeals

and applications from the next date of hearing.

84. Though it was not a decretal order, but was one for house -

keeping so that the hearing of all appeals and applications could

proceed in a structured way, the said order was challenged by the

legal heirs of Nawab Khasim Nawaz Jung and Goldstone/Trinity before

this Court in S.L.P. (Civil) Diary No. 40990 of 2018. The grievance

projected by these persons against the order of the High Court dated

14.03.2018 was that by categorizing the appeals and applications for

hearing, the High Court was likely to reopen even the appeals already

disposed of.

85. This Special Leave Petition was disposed of by this Court on

16.11.2018 at the stage of admission itself, without ordering notice to

the respondents. The order reads as follows:

“Delay condoned.

Mr. Gopal Shankarnarayan, learned counsel, submits that

the High Court is likely to reopen even those second appeals,

48

which had already been disposed of.

The apprehension of. is based on the following observation

made by the High court in the impugned order : -

"All the writ petitions falling under category-XIII and XIV

will be taken up for hearing from 10th April 2018 on a

day- today basis on a specific understanding that the

learned Government Pleader will get ready to argue the

writ petitions from 10th April 2018 onwards. For the

purpose of convenience, the cause list will be printed as

such without any modification, since the learned counsel

appearing on all sides today have had the benefit of the

memo filed by the Receivers-cumCommissioners and it is

up to them to come prepared with respect to the cases that

fall under these categories."

It is made clear that the execution will pertain only to those

writ petitions which have otherwise survived on account of the

remand.

In view of the above, the Special Leave Petition is disposed

of.”

86. Not satisfied with the above disposal, the above Special Leave

Petition was brought up for hearing once again on 28.11.2018 upon

being mentioned for a clarification. On such mentioning, this Court

passed an order on 28.11.2018 to the following effect:

“The operative portion of the order dated 16.11.2018 is

modified to the following extent (with underlying modifications}

“It is made clear that the adjudication will pertain only to

those writ petitions and appeals {OSAs} which have otherwise

survived on account of the remand,"

Rest of the order shall remain as it is.”

87. Thereafter, the Division Bench of the High Court took up all the

original side appeals and disposed of the same by a common judgment

dated 20.12.2019. The operative portion of the order of the Division

Bench reads as follows:

“414. In the result:

49

(a) OSA NOs. 54, 56, 57, 58 of 2004 are dismissed and the

common order of the learned single Judge dt.26.10.2004 in

claim petitions Application No.585 of 2002, Application No.708

of 2002, Application No.1319 of 2003 and Application Nos .

1320 of 2003 filed under Or.21 Rule 97-101 CPC in E.P.3 of

1996, is affirmed;

(b) It is declared that the claim petitioners/ respondents in the

O.S.A.s have established their right, title and interest in the

properties claimed by them in the claim petitions/ Application

No.585 of 2002, Application No.708 of 2002, Application

No.1319 of 2003 and Application Nos. 1320 of 2003.

(c) We declare that appellants have failed to establish that the

land in Hydernagar village (including Sy.No.172 therein) is

Matruka property of Khursheed Jah Paigah, from whom they

were claiming under the preliminary decree;

(d) We declare that the land in Hydernagar village was Jagir

land, but prior to 1948, pattas were granted to cultivating ryots

under the Khursheed Jah Paigah like Ruquia Begum, Waris Ali,

Ghani Shareef, Boddu Veeraswamy and other deemed

pattedars by the Revenue Secretariat of HEH the Nizam in

1947. So title to this land passed on to the said cultivating ryots

prior to 1948 itself and they validly conveyed title to the claim

petitioners. This land therefore did not vest in the State

Government after the Hyderabad Jagir Abolition Regulation,

1358 Fasli came into operation.

(e) Though there is no remand of OSA No.59 of 2004 by the

Supreme Court to this Court, the order dt.23.6.2006 in the said

OSA is declared to be passed by a coram non Judice and to be

a nullity and consequently we hold that it is not binding on any

body including the claim petitioners in Application No.585 of

2002, Application No.708 of 2002, Application No.1319 of 2003

and Application No. 1320 of 2003; we also hold that the entire

order is void including all findings/observations made in it

including the finding that claim petitioners did not prove their

title to lands in their occupation;

(f) We declare that the preliminary decree dt.28.6.1963 in CS

No.14 of 1958 as regards the lands in Hydernagar village is

obtained by practicing fraud both on the Court as well as on the

claim petitioners and other occupants of lands in the said

village and is declared void ab initio.

(g) We declare that the order dt.20.1.1984 in Application

No.266/1983 and o rder dt.28.12.1995 in Application

no.994/1995 passed by this Court are orders obtained by the

applicants therein by playing fraud both on the Court and on

the claim petitioners and also to be collusive in nature.

Consequently they cannot be allowed to be executed against

the claim petitioners and third parties.

50

(h) We declare that the order dt.24.4.1998 passing Final decree

in Appln. No.517 of 1998 in CS No.14 of 1958 is null and void

and it is further declared that there is no Final decree with

regard to the Ac.98- 10 gts in Sy.No.172 of Hydernagar village,

Ranga Reddy District of Item 38 of Schedule IV.

(i) We declare that the order of the District Judge, Ranga Reddy

dt.29.03.1996 in E.P.No.3 of 1996 in C.S.No.14 of 1958 as well

as the bailiff report dt.19.04.1996 executing the warrant

dt.29.03.1996 are non-existent and to be null and void, and the

appellants are precluded from placing any reliance on them in

any proceeding against the claim petitioners or against any

third party.

(j) We direct the appellants to forthwith restore to the claim

petitioners in Application No.585 of 2002, Application No.708 of

2002, Application No.1319 of 2003 and Application No. 1320 of

2003 lands claimed by the claim petitioners in Sy.No.172 of

Hydernagar village (which were taken from them pursuant to

the Bailiff report dt.19.4.1996 in E.P.No.3 of 1996) and the

appellants are further injuncted from interfering with their

possession and enjoyment of the said land.

(k) The following implead applications are dismissed.

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

2. I.A.No.2 of 2014 in OSA No.54 of2004

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

51

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

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

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

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

(k) The appellants shall pay costs of Rs.10,000/- to each of the

respondents in the OSAs 54, 56 -58 of 2004 /claim

petitioners/applicants in Application No.585 of 2002,

Application No.708 of 2002, Application - No.1319 of 2003 and

Application No. 1320 of 2003.”

88. Before coming to the above conclusions, the Division Bench

recorded certain findings. The Bench held that the appellants therein

(who are the appellants herein) failed to establish that the land in

Hydernagar village is Mathruka property of Khurshid Jah Paigah and

that the preliminary decree dated 28.06.1963 as regards the lands in

Hydernagar village was vitiated by fraud. The Division Bench further

held that the orders obtained in Application No.266 of 1983 and

Application No.994 of 1995 are also vitiated by fraud and hence

cannot be executed against the claim petitioners and third parties.

Even the final decree passed on 24.04.1998 in Application No.517 of

1998 with regard to acres 98.10 guntas in Survey No.172 of

Hydernagar was held by the Division Bench to be a nullity.

89. Insofar as applications for impleadment made by various parties

in OSA Nos.54 and 56 to 58 of 2004 were concerned, they were

dismissed by the Division Bench on the ground that third parties

cannot get impleaded in a claim petition filed by somebody else and

52

that any one claiming a right to property should have filed a separate

claim petition. Insofar as the impleading applications in OSA No.59 of

2004 were concerned, the Division Bench felt that there was no

remand of OSA No.59 of 2004 and that therefore, app lications for

impleading in an appeal not remanded by the Supreme Court cannot

be allowed.

90. Challenging the common order dated 20.12.2019 passed by the

Division Bench of the High Court for the State of Telangana, several

parties have come up with the appeals on hand. The parties who have

come up against the impugned judgment include those, (i) who are

assignees of the decrees and who wanted the decree to be executed

and possession handed over to them; (ii) whose applications for

impleadment in OSA Nos.54 an d 56 to 58 of 2004 have been

dismissed; (iii) whose applications for impleadment in OSA No.59 of

2004 have been dismissed; (iv) who are concerned about the other half

of the land in Hydernagar (Item No.38 of the Plaint Schedule IV), but

who have suffered a collateral damage on account of the preliminary

decree being held void ab initio; (v) defendant No.58 in the suit, who

was not a party before the High Court, but who claims that the extent

of land in Survey No.172 of Hydernagar village to which she became

53

entitled, is now affected by the preliminary decree being held void; and

(vi) the State of Telangana.

91. To put it in simple terms, (i) persons whose intra-Court appeals

were dismissed by the High Court; (ii) persons whose applications for

impleadment were dismissed by the High Court; (iii) persons who were

not party before the High Court but whose rights in respect of the

other part of Survey No.172, or other items of properties, are perceived

to be affected by the impugned judgment; and (iv) the State

Government, have come up with the appeals. The non -parties have

come up with applications for leave to file Special Leave Petitions and

those applications have already been allowed.

92. Apart from the appeals, there were also a few applications for

impleadment, which may have to be addressed separately. Therefore,

for the purpose of clarity, we shall divide this judgment into nine

parts, as detailed hereunder:

Part-I -- will contain the meaning of certain peculiar words and

expressions used throughout.

Part-II -- will contain details about who is pitted against whom in this

battle.

Part-III -- will contain details as to how (i) the appellants; (ii) claim

petitioners; and (iii) the State Government are claiming title to the very

54

same property.

Part-IV -- will deal with the issues arising for consideration in this

batch of appeals (including the appeals filed by the State of

Telangana).

Part-V -- will deal with the claims of those whose impleadment

applications were dismissed by the High Court but whose cases are

similar to that of the claim petitioners.

Part-VI -- will deal with appeals by non-parties to the impugned

judgment challenging one portion of the impugned judgment.

Part-VII – will deal with I.A. No. 118143 of 2022 filed by Mohd.

Mustaffuddin Khan and others (legal heirs of defendant No.52) seeking

to intervene in the appeal arising out of SLP (Civil) No. 8884 of 2022.

Part-VIII -- will deal with I.A. No.112090 of 2022 filed by an Asset

Reconstruction Company.

Part-IX -- will deal with I.A. No. 36422 of 2023 filed by Durga Matha

Co-operative House Building Society Ltd.

Part-I:

Decoding certain words and expressions

93. Before we proceed further, it may be necessary to decode certain

words and expressions used in these proceedings from the beginning.

55

If not, they will continue to haunt and frighten the reader. Therefore, a

glossary is presented as under:

(i) Matruka : The property, both movable as well as

immovable left by a deceased muslim is

called Matruka

6

.

(ii) Paigah : This is a Persian (or Farsi) word which is

used to denote pomp and rank. The word is

also translated to mean “right- hand man” or

“footstool”.

(iii) Paigah Grant : It is an estate granted for the maintenance of

the Army.

(iv) Amir : The holder of Paigah is called the “Amir”.

(v) Jagir : 1. Literally, the place of taking. An

assignment to an individual of the

government share of the produce of a portion

of the land. There were two species of

jaghires; one, personal, for the use of the

grantee; another, in trust for some public

service, most commonly the maintenance of

troops. [Whart.] 2. Annual allowance ordered

by the Ruler of an erstwhile State to be paid

to the junior members of his family is not

‘jagir’

7

. 3. Both in its popular sense and

legislative practice, the word “jagir” is used as

connoting State grants which conferred on

the grantees rights “in respect of land

revenue

8

”.

But the word “Jagir” is defined in Regulation

2(f) of the Andhra Pradesh (Telangana Area)

(Abolition of Jagirs) Regulations, 1358 Fasli

to include a Paigah, Samsthan part of a jagir,

village Mukhta, village Agrahar, Umli and

Mukasa, whether granted by a Ruler or a

Jagirdar, and as respects the period

commencing on the date appointed for a jagir

under Section 5, means the estate there-to-

fore constituting a jagir;

(vi) Jagirdar : This expression is defined in Regulation 2(h)

of the aforesaid Regulation to mean the

6

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

7

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

8

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

56

person who immediately before the date

appointed under Section 5 was the holder

(qabiz) of a jagir and includes the Amir of a

Paigah and the Vali of a Samasthan.

(vii) Makta/Makhta : The law Lexicon with Maxims authored by

Sumeet Malik (published by Eastern Book

Company, First Edition, 2016) indicates that

this word is available in Hindustani, Telugu,

Marathi and Gujarati. This word means “A

contract, an agreement for work, rent, rate, a

fixed rate or rent”.

Part-II:

Who is fighting whom?

94. Unlike the routine run-of-the mill matters that come up before

this Court where there are usually two parties to the disputes, there

are several parties to the dispute on hand. On the one hand we have

persons claiming title to the property on the basis of a preliminary

decree and final decree in a suit for partition. On the other hand, we

have persons (who were claim petitioners before the Executing Court)

who claimed independent title on the basis of pattas granted to their

predecessors, after the abolition of Jagir. We also have the State of

Telangana staking a claim to the property in entirety on the ground

that the property had vested in them long time ago. Interestingly,

those who claim title on the basis of the preliminary and final decrees

in the partition suit, were initially prepared to give up their claim to a

portion of the property which is in the occupation of those who are

57

before the Executing Court as obstructionists/claim petitioners. But

the claim petitioners have taken a tough stand, exhibiting a

willingness to do or die. But insofar as claim of the State Government

is concerned, both the decree holders as well as the claim petitioners

stand united in their opposition. Apart from these three sets of main

contestants, there are also others including (i) those who are afraid of

the potential of the impugned judgment to harm their interest in

respect of other properties covered by the decrees in the civil suit; and

(ii) an Asset Reconstruction Company to whom the mortgage of one of

the properties has been assigned along with the debt.

95. For the purpose of easy appreciation, we shall refer to the parties

as (i) decree holders and assignees of the decrees; (ii) claim petitioners

who were parties before the High Court; (iii) claim petitioners whose

impleadment applications were dismissed by High Court; (iv) third

parties; and (v) State Government.

Part-III:

How do the different parties to the dispute claim title?

96. Persons who challenge the impugned judgment fall under three

categories, namely, (i) the assignees of decrees; (ii) claim petitioners

whose impleadment applications have been dismissed by the High

Court; and (iii) the State Government.

58

The basis of the claim of the assignees of decrees

97. The parties to the suit, the decree holders and the assignees of

the decrees (Cyrus/Gold Stone/Trinity) claim title to the land of extent

of about 98 acres in Survey No.172 of Hydernagar primarily on the

basis:

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

(ii) that Dildar-Un-Nissa Begum sought partition of this

property along with other properties on the basis that it was

inheritable;

(iii) that in the judgment and preliminary decree passed on

28.06.1963 the Court had adjudicated that the property was a

Matruka property;

(iv) that even the proceedings before the Nazim Atiyat and the

Muntakhab issued thereafter confirm the entire village of

Hydernagar as Inam Altamgha in the name of Khurshid Jah;

(v) that Inam Altamgha is hereditary and transferable;

(vi) that pursuant to the preliminary decree, Receiver -cum-

Commissioner appointed by the Court sought directions from the

Court to the Collector to hand over possession of the land by filing

an application in IA No.268 of 1966;

(vii) that on 23.02.1967, HEH Nizam (defendant No.156) sold his

decretal rights to Cyrus (defendant No.206) by way of a registered

sale deed;

(viii) that on 24.03.1967 Application No.268 of 1966 was allowed

by the High Court directing the Collector to deliver possession to

the Receiver;

59

(ix) that on 05.11.1970 the High Court passed an order in the

application filed by Khasim Nawaz Jung (defendant No.157) and

Cyrus (defendant No.206) for partition of the property into half

amongst themselves holding that immediately after allotment of

shares, D-157 and 206 may exercise their choice and move the

commission to take steps in this regard;

(x) that on 15.03.1972, the Receiver-cum-Commissioner filed a

memo before the Court specifically in regard to Item No.38 -

Hydernagar stating that he has verified the records available in

Tehsil Office and the pahani patrikas and found that the patta has

been shown in the name of Nawab Himayath Nawaz Jung (Ame er-

E-Paigah) in respect of the lands in Survey Nos. 145, 163 and 172

of Hydernagar village to a total extent of 591.36 acres and that

Survey No.172 is found to be 196 acres, 20 guntas;

(xi) that on 03.12.1972, the Receiver -cum-Commissioner

prepared a scheme of partition for agricultural lands mentioned in

List I, including Hydernagar and a person-wise (Statement 1) and

survey-wise (Statement 1A) scheme of partition for Hafizpet and

Hydernagar were prepared;

(xii) that on 28.03.1973, the Special Deputy Collector,

Hyderabad filed a counter stating that Survey No.172 was grazing

land and not cultivable land;

(xiii) that on 05.07.1974, the Court allowed Application No.19 of

1973 and directed the Government to hand over symbolic

possession of the lands situated in Survey Nos. 145 and 163 of

Hydernagar village measuring Acres 220 guntas 18 and Acres 175

guntas 6 respectively to the Receiver;

60

(xiv) that in so far as other lands were concerned, 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;

(xv) that the Court vide order dated 31.01.1976 referred the

matter to the Collector for partition and allotment of shares under

Section 54 CPC, but the Collector never submitted a report in

respect of Survey No.172;

(xvi) that on 09.04.1980, the Receiver -cum-Commissioner

addressed a letter to the Collector stating that despite the Court’s

order dated 31.01.1976, the Collector had not taken any steps to

divide the lands in Hydernagar, but on the other hand Taluq

Office had granted pattas in the names of several persons, forcing

the Receiver to file a contempt petition against Wasim -e-

Jamabandi and to seek cancellation of pattas;

(xvii) that on 05.08.1983, the application filed by Nawab Khasim

Nawaz Jung (defendant No.157) and Cyrus (defendant No.206) for

deletion of names of plaintiff Nos.1 and 2 and other defendants

and substitute them in their place (due to sale of their decretal

rights) was allowed;

(xviii) that in 1983, the Receiver-cum-Commissioner submitted a

report stating that as per the scheme of partition, Nawab Khasim

Nawaz Jung (defendant No.157) and Cyrus (defendant No.206) are

entitled to receive possession of the entire Survey No.172

Hydernagar as it was allotted to persons who have sold their

decretal rights to them and that Survey No.172 does not need to

61

be partitioned and possession can be given to Nawab Khasim

Nawaz Jung (defendant No.157) and Cyrus (defendant No.206);

(xix) that on 20.01.1984, Application No.266 of 1983 filed by

Nawab Khasim Nawaz Jung (defendant No.157) and Cyrus

(defendant No.206) seeking possession was allowed and the

Receiver-cum-Commissioner was directed to hand over the

possession and a warrant for possession was also issued;

(xx) that the Receiver-cum-Commissioner in his report dated

13.07.1984, noted that the entirety of 196.20 acres of Survey

No.172 has been allotted to Nawab Khasim Nawaz Jung

(defendant No.157) and Cyrus (defendant No.206) pursuant to the

sale of decretal rights by all parties who were allotted lands in

Survey No.172 in the scheme of partition;

(xxi) that in 1991, since Nawab Khasim Nawaz Jung (defendant

No.157) and Cyrus (defendant No.206) held whole of the 196.20

acres in Survey No.172, they came to an internal arrangement to

assign their respective rights and for Cyrus’ share, 10 plots were

to be allotted to 16 petitioners;

(xxii) that on 29.11.1995, Cyrus (defendant No.206) executed

Assignment Deeds in favour of Goldstone and others for their half

share in Survey No.172 of Hydernagar and Nawab Khasim Nawaz

Jung (defendant No.157) executed Assignment Deed in favour of

Nazeer Baig and others; and

(xxiii) that the petitioners thus came to hold full rights over the

land measuring 98.10 acres in Survey No.172.

The basis of the claim of the claim petitioners

98. The case of the claim petitioners was:

62

(i) that their predecessors were the original cultivators of the land

in Survey No.172 of Hydernagar village;

(ii) that they became pattadars for the extents of land under their

cultivation by operation of law, namely Rules 2 and 3 of the

Rules Relating to Grant of Pattadari Rights in Non-Khalsa

Villages;

(iii) that thereafter a Zamina Sethwar was also issued to that effect

in 1947 itself with tonch map and Pote numbers by sub -

dividing Survey No.172 into Survey Nos.172/1 to 172/25;

(iv) that the original Sethwar was obtained by the Collector from

the State archives and forwarded to the Tehsildar ( West),

Hyderabad for recording the same in the revenue records vide

the letter dated 19.05.1979, as evidenced by Faisal Patti;

(v) that the portions of the land in Survey No.172 were developed

into a colony of residential plots by Cooperative Housing

Societies and that the claim petitioners bought individual

housing plots from the Cooperative Housing Societies; and

(vi) that the claim petitioners thus became the owners of

individual plots.

The basis of the claim of the State of Telangana

99. The claim of the State is:

(i) that Khurshid Jah left no Mathruka property at the time 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;

63

(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;

(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

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 Government

10 and two

other decisions of this Court in State of Andhra Pradesh

(Now State of Telangana) vs. A.P. State Wakf Board

11

and Mohd. Habbibuddin Khan vs. Jagir Administrator,

Government of Andhra Pradesh

12;

(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

over by the State;

(ix) that as held by this Court in Rangammal vs.

Kuppuswami

13, a suit for partition is not a suit for

declaration or determination of title;

9

AIR 1956 SC 319

10

AIR 1962 SC 996

11

2022 SCC OnLine SC 159

12

(1974) 1 SCC 82

13

(2011) 12 SCC 220

64

(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

Abolition Regulations, cannot be gifted away either to the

decree holders or to the claim petitioners.

Part-IV:

Issues arising for consideration

100. A careful consideration of the judgment of the learned Single

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 was

vitiated by fraud and consequently null and void, especially

when there was no pleading and no evidence let in?

65

(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

finding recorded in the Judgment and preliminary decree that

has attained finality?

(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 ?

(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?

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 ?

101. 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

66

rightly contended, require special pleadings in terms of Order VI, Rule

4 CPC.

102. 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 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:

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 of

inams from transferring the land in favour of any 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

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?

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 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?

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

67

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?

No issues were framed in Appln. No.994 of 1995. However,

issues referred to above will cover the controversy in that

application also.”

103. 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

Single Judge about fraud. But the Division Bench read such a finding

into the order of the learned Single Judge.

104. 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, 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

Bank

14 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 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

14

(2000) 10 SCC 592

68

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 to the said conclusion, the High Court drew

inspiration from the decision of this Court in Lachhman Dass vs.

Jagat Ram and Others

15, 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 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 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.

105. 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 ground that it was vitiated by fraud. Though persons obstructing

15

(2007) 10 SCC 448

69

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.

106. 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 ti tle in

himself.

107. 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 obstr uction 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 shall proceed to adjudicate upon the application in

accordance with the provisions herein contained.”

70

108. 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.

109. 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.

110. 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.

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 1 03 is made has

sought to establish a right which he claims to the present

possession of the property.”

111. 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

71

fiction that the orders so passed under Rule 101 shall be deemed to be

a decree.

112. Despite Rules 101 and 103, the order passed under Rule 101 is

made, under Rule 104, subject to the result of any pending suit.

113. 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 Begum was

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.

114. 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.

115. 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

72

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.

116. 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. He drew our attention in this connection to the relief

sought in paragraph 18(a) of the plaint.

117. 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

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 29/1944

th

share

therein.”

118. 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

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.

73

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 29/2944

th

share, is arrived at in paragraph 13 as O.S. Rs.7,408-1-1.

119. The way in which the suit claim has been valued and court-fee

paid, demonstrates very clearly that it was not a 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 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.

120. Therefore, we are of the view that the preliminary decree

dated 28.06.1963 could not have determined the claim to title

made by the legal heirs seeking partition , as against third

parties. Any finding rendered in the preliminary decree, tha t 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.

74

121. 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

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

5

th

Shahabad, 1347 (corresponding to 17-1-1929) and Or.3

clause 9; and what is its extent.

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?

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?

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 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.”

122. None of the above 10 points relate to the assertion of the claim

of third parties (except the Government) to title to the properties.

123. 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

75

non-parties who jumped into the fray by purchasing portions of

the preliminary 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.

124. 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

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 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 was a

76

specimen of a unique kind. I t 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 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 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 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 stone

16, to make this

miracle possible.

125. 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

16

A mythical substance supposed to change any metal into Gold or Silver or to cure all diseases and prolong life

indefinitely.

77

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.

126. 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

78

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 Huss ain Sagar (in

Hyderabad) or India Gate (in New Delhi) cannot be included 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.

127. 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 a nd

that they have not only filed the written statement but also examined

four witnesses and that therefore the claim of the Government is

sealed.

128. It is true that Item Nos.35 to 40 of Plaint Schedule IV 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

79

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 Court recorded a finding in the judgment and

preliminary decree that the mere denial of defendant No.1 would 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.

129. 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.

130. As we have stated elsewhere, it can be seen from the Plaint

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:-

“Hydernagar patta lands. Compact area of 1210 acres”

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131. 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 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 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.

132. 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

81

consideration, Issue No.14(a) concerned Item No.38 (Hydernagar)

specifically. This issue 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,

whether the civil court has no jurisdiction in relation to the

same?”

133. The above Issue No.14(a) which directly concerned Item 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.

134. On these two issues, namely Issue Nos. 13(c) and 14(a), 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 Reorganisation,

these buildings came to be located within the territorial limits of

Mysore State and that th ey 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, the

parties were not entitled to claim the same as Khurshid 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;

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(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;

(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;

(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.

135. 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 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 jumped to the conclusion that Item Nos. 38 and

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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.

136. 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

137. 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,

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.”

138. 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 had already become a persona non grata.

139. 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

84

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 finding

recorded in the Judgment and preliminar y 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?

140. The answer to Issue No.(iii) is not very difficult to be found.

While dealing with Issue Nos.(i) and (iv), we have already held that any

85

finding relating to title to a property, recorded in a simple suit for

partition cannot be binding on third parties. The same would ho ld

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).

141. 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?

142. 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.

143. 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

Committee in this behalf.

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144. 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

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 dealt with the claim of defendant No.1 to be the sole owner

of certain items of properties; Issue Nos.10 and 11 which 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.

145. 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).

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146. 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).

147. The findings recorded by the Trial Judge under the heading

“Issues 7(a) and 7(b) covering Issues 8(a) and 8(b), 9, 11, 12 and 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

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;

(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 1/3

rd of the properties;

(vii) that if the disposition is in favour of an heir, it is invalid

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 Jah, the

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property of the Paigah was kept under the 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;

(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;

(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;

(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

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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

(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.

148. In the preceding paragraph, we have summarised all the

findings recorded by the Trial Judge under Issue Nos.7(a) and 7(b)

taken 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 Mathruka was never partitioned between

Zafar Jung and Imam Jung.

149. 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 Ma htruka properties. Therefore,

the contention as though there was such a finding and that the

90

finding has attained finality and that the impugned Judgment

goes contrary to such a finding, is wholly misconceived.

150. The portions of the judgment dated 28.06.196 3 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 und er

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.

151. For claiming that the suit properties were Mathruka properties,

reliance is placed by the appellants also upon:-

• The sanad dated 03.12.1877;

• 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

• The Muntakhab issued by the Commissioner on 14.02.1983.

152. But we do not know how the appellants are placing reliance

upon these documents in support of the contention that the properties

left behind by Khurshid Jah are Mathruka properties. If we have a look

91

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

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.

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. 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 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.”

153. 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 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.

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154. The order of the Nazim Atiyat dated 30.10.1968 and the

Muntakhab issued by the Commissioner on 14.02.1983 could not have

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.

155. It must be remembered that the entire basis of the claim of the

appellants is that as per the preliminary decree these properties were

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).

156. Much was sought to be made, out of the finding recorded by the

Nazim Atiyat Court that the lands in Hafeezpet and Hydernagar

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-Tamgha is. It

reads as follows:-

“1. The villages of S.No.380 and No.381 have been verified

as “INAM AL-TAMGHA” in the name of Khurshid Jah

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/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

93

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 etc.”

157. 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.

158. Even if we assume that it was Inam-al-Tamgha, then a 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

Jagirdar, holder of a Samsthan or ot her 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.

159. Since everyone focused attention only on Hyderabad Jagir

Abolition Regulations, 1948 and a contention was raised that the

17

for short “1955 Act”

94

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.

160. 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 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 , the 1955 Act and various

subsequent enactments relating to agricultural land reforms and

urban land ceiling.

Issue No.(v):

Whether the claims of the claim petitioners stood established?

161. It was contended by Shri Gopal Sankaranarayanan, learned

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.

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162. But the said contention does not appear to be wholly correct.

Paragraph 58 of the order of the learned Single Judge dated

26.10.2004, a portion of which is extracted in the impugned judgment

of the 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 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,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.

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163. 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 a n original

document is produced and only after it is proved that it has come from

proper custody.

164. 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.

165. 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

District.

166. 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.

167. 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

97

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.

168. But the above argument does not advance the cause of the

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.

169. An original Map of Hydernagar verified by the Survey and 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.

170. 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

dated 31.01.1976. It was under this document that defendant Nos.50,

98

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.

171. 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

99

No.172 could 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 cl aim would still survive after a

series of setbacks to the State Government in the Court room?

172. 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 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.

100

173. Following the aforesaid finding, the High Court declared in

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. Therefore, the application for impleadment is unnecessary

and hence it is dismissed.

174. 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 f act, 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.

175. Since the State of Telangana has come up with appeals, the

appellants (decree holders) as well as the claim petitioners have taken

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

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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 b y the High

Court by an order dated 18.12.1982. The appeal filed by the State in

OSA No.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, it is contended that the fate of the

claim of the State should be sealed at least now.

176. 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

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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.

177. 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.

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

178. 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

103

somebody else and that the only remedy of such parties is to file

separate claim petitions.

179. All the 24 impleadment applications f all under different

categories namely:

(i) those claiming to be in possession of a portion of the land

representing the half share purportedly purchased b y

Cyrus/Goldstone/Trinity in Survey No.172 of Hydernagar;

(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 mortgagee; and

(v) those who filed applications for impleadment in OSA

No.59 of 2004.

180. Out of the aforesaid categories of persons whose impleadment

applications were dismissed, the case of the Asset Reconstruction

Company has been dealt with by us in the next part of the judgment.

181. 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 held the entire order of the previous Bench dated

23.06.2006 to be void as a consequence of this Court setting aside the

104

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 paragraph 414(g), the order dated

20.01.1984 in Application No.266 of 1983 and the order dated

28.12.1995 in Application No.994 of 1995, have been held to be

inexecutable not only against the claim petitioner s 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 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 obstructionist s, who have filed

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

105

parties to CS No.14 of 1958 and (ii) those claiming to have

decrees or assignment of decrees in CS No. 14 of 1958.

Part-VI:

Appeals by non-parties to the impugned judgment,

challenging only one portion of the impugned judgment

182. A few individuals, namely Sameena Kausar and four others, all

of whom are the daughters of late Mirza Mazahar Baig, have come 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.

183. 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 414(f).

184. 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

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Mohiuddin Khan. His wife Sahebzadi Hameedunnissa Begum was

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 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 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. Jayaho Estates.

185. 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

107

by Ghousuddin Khan (defendant No.52). Sahebzadi Hameedunnissa

Begum 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.

186. 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.

187. 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

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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 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. 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.

109

188. 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 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 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 Court in Venkata Reddy vs. Pethi

Reddy

18. 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.

18

AIR 1963 SC 992

110

189. But as we have pointed out earlier, the judgment and

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.

190. 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

separate Code for itself and not the Code of Civil Procedure, 1908.

191. 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 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 made without further enquiry, pass a preliminary decree

declaring the rights of several parties and giving such further

111

directions as may be required, if the decree relates to any other

immovable property not covered by sub-rule (1).

192. Obviously, the preliminary decree passed on 28-06-1963 in 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).

193. 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

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 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

112

should be passed by the Court under Order XXVI Rule 14 (3) of the

Code.

194. 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 Co mmissioner 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.

195. 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) passing of a preliminary decree in terms of

113

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 property or any particular portion of a

specific property, if such a compromise is struck only with a few

parties to the suit.

196. 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 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.

197. Be that as it may, a look at the Memorandum of Oral Gift dated

19.12.1978 executed by Ghousuddin Khan (defendant No.52) 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

114

boundaries alone. It will be useful to extract the last part of this

Memorandum of Oral Gift dated 19.12.1978. It reads as follows:-

“Today on 19

th

December 1978 I have confirmed the oral

gift made on 10

th

October 1978 in favor of the Donee and

executed this Memorandum of gift in presence of the following

witnesses.

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 : 19

th

December 1978.

Boundaries:

North: Nizampet village

South: Bombay High way

East: Hydernagar village,

West: Survey No. 28 land of Jeelani Begum.

Sd/-Donor Ghouse Mohiuddin Khan.

Sd/- witness Sd/- witness”

198. 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

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 matter had to be forwarded to the Collector under

Section 54 CPC. But all of a sudden, a final report filed by one P.

Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the

115

basis of a compromise decree in Application No.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 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

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

62.13 G

199. 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 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. Interestingly, Northern boundary is stated to be Nizampet

village, Southern boundary is stated to be Bombay Highway and

116

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.

200. 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.

201. 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

17.11.1962, he became seriously ill and his condition deteriorated on

22.02.1967 and that he was put on oxy gen. 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 sale made by the Agent after the termination of his agency under

Section 201 of the Indian Contract Act is wholly invalid.

117

202. 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/Trinity, should sink together.

203. Appearing along with Shri V.V.S. Rao, learned senior counsel,

for some of the appellants, it was contended by Shri K.S. Murthy,

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. The learned senior counsel also drew our attention to the Inam

enquiry and the order of the Revenue Board and the Muntakhab.

204. 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.

205. 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 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

118

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.

206. We do not know how persons can sell identified parcels of land

purportedly allotted to them, out of undivided shares of land in a

partition suit in which final decrees and Receiver’s reports galore.

207. 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 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.

208. 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.

119

209. In view of the above, all the appeals arising out of SLP (C)

Nos.8884-8887 of 2022, SLP (C) Nos.8888 -8891 of 2022 and SLP

(C) No.24098 of 2022 are liable to be dismissed. Accordingly,

they are dismissed.

Part-VII :

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

210. This application has been filed by Mohd. Mustafauddin Khan

and another seeking intervention in the appeal arising out of SLP (C)

No.8884 of 2022 filed by Sameena Kausar and others.

211. The applicants herein are the legal heirs of Mohd. 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 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. Th ey 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.

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212. 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.

213. 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 are not in a position to verify the correctness of the contention that

defendant No.156 (Nizam) died even before he was imp leaded 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.

214. 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

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Kausar and others, this intervention application is liable to be

dismissed without getting into the merits of their contention.

Part-VIII

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

Nos. 2373-2377 of 2020

215. 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

(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 Ltd., M/s Sai Anupama Agencies Pvt.

Ltd, M/s Keerti Anurag Investments Pvt. Ltd., M/s Jayasree Agencies

Pvt. Ltd., M/s Sai Keerti 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

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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 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.

216. 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 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 and that the provisions of these two enactments will override

all other enactments.

217. But there are two major 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 in OSA No.54

of 2004; I.A.No.3 of 2019 in OSA No.56 of 2004 and I.A.No.4 of 2019

in OSA No.59 of 2004 before the High Court. All these applications for

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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.

218. 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. 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.

219. We do not know how a final decree in a partition suit and that

too in a notorious suit like CS No.14 of 1958 could have been taken 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

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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 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.

220. 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

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

221. These applications praying respectively for, (i) leave to get

impleaded; (ii) impleadment; and (iii) directions, have been filed by a

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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 appeals arising out of SLP (C) Nos.2373-2377 of

2020.

222. The averments contained in these interlocutory applications, in

brief are,

(i) that by virtue of a sale deed dated 23.02.1967, HEH the

Nizam sold his undivided half share in the land of the

extent of acres 175.06 in Survey No.163 of Hydernagar to

Cyrus 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

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half shares, as per the orders of the High Court dated

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;

(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;

(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 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.;

(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;

(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

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has been held by the impugned judgment to be vitiated

by fraud;

(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.

223. 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;

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(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 th e

applicant herein were not even parties to the impugned

judgment.

224. 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 Wri t

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.

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225. 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 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:

“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.”

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) for leave 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-

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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

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.

Accordingly, they are dismissed.

CONCLUSION

226. 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 dismissed.

Consequently, I.A. No. 75869 of 2022 filed by 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.

(iii) All the appeals arising out of SLP(C) Nos.8888-8891 of 2022

filed by Fareeduddin Khan and others are dismissed.

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(iv) All the five appeals arising out of SLP(C) Diary No.19266 of

2022 filed by the State of Te langana and another are

dismissed with the observation that the finding given in

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 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 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 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)

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.

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(viii) I.A. Nos.36417, 36419 and 36422 of 2023 filed 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.

.…………………..….......................J.

(V. RAMASUBRAMANIAN)

………… …………… .......................J.

(PANKAJ MITHAL )

NEW DELHI;

JUNE 15, 2023