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SK,J
CRP.No.704 of 2021
THE HON'BLE SRI JUSTICE K.SARATH
CIVIL REVISION PETITION No.704 of 2021
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order dated 06.12.2019 passed in I.A.No.1223 of 2017 in L.A.O.P.No.320 of 2017 on the file of the X Additional Chief Judge, City Civil Court at Hyderabad, whereby the petition filed under Order I Rule 10 of C.P.C. to permit the petitioners/proposed claimants to be impleaded as claimant Nos.38, 39 and 40 in L.A.O.P.No.320 of 2017 was dismissed.
2. Heard Sri V. Jagapathi, learned Counsel for the petitioners. Sri Mohd. Ilyas, learned Counsel for respondent Nos.13, 17 to 20, 22 to 24, 26, 28, 29, 33, 36 and 37, Sri Shryas Reddy Yalagari, learned Counsel for respondent Nos.2 to 6 and Mohd. Nasrullah Khan, 2 SK,J CRP.No.704 of 2021 learned Counsel for respondent Nos.7 to 11. Perused the record.
3. The brief facts are that after the death of one Abdul Raheem, his 1st wife and her children have filed suit in O.S.No.272 of 1989 for partition against one Syed Jaffar Ali and the second wife and her children of late Abdul Raheem. The said Syed Jaffar Ali and late Abdul Raheem are brothers. The son of first wife of Syed Jaffar Ali, by name Syed Azeem, is the 8th defendant in the suit. The said suit was partly decreed on 06.07.1991. Against the said decree and judgment, the 2nd defendant-Syed Jaffar Ali filed C.C.C.A.No.52 of 1991 before this Court. After the death of said Syed Jaffar Ali, his first wife and her children were brought on record, but they did not make the 1st petitioner herein and her two sons being 2nd wife and the children of late Syed Jaffar Ali as parties in the appeal. In the 3 SK,J CRP.No.704 of 2021 proceedings of final decree, the 1st petitioner and her two sons were added as respondent Nos.11,12 and 13 before the trial Court in I.A.Nos.184 of 1991, I.A.No.102 of 1994 and I.A.No.101 of 1994, which are the subject matter of revision before this Court and decided in common judgment along with C.C.C.A.No.52 of 1991. The said appeal was dismissed confirming the Judgment of the Court below vide Judgment and Decree dated 20.09.2016. A cross appeal preferred by the 2nd wife and her children of late Abdul Raheem claiming 59 shares out of 160 shares was allowed. This Court in C.C.C.A.No.52 of 1991 has declared the shares of the parties. A part of the premises in item No.4 of the suit schedule property i.e. H.No.6-3-921 to 923, which is on the main road of Khairatabad, Hyderabad admeasuring about 198.23 sq. yards was acquired by the Hyderabad Metro Rail Authority through acquisition proceedings and the compensation of Rs.2,90,98,556/- 4
SK,J CRP.No.704 of 2021 is payable to the said acquired land, but due to pendency of the appeal as to rights and shares, the L.A.O. has deposited the said compensation amount to the credit of Civil Court, Hyderabad in L.A.O.P.No.320 of 2017. The case of the petitioners is that though their names were appeared in the cause title of the Judgment in revision as wife and sons of late Jafar Ali, they were not served with any notice and they were not impleaded as parties in C.C.C.A.No.52 of 1991. As item No.4 of the suit schedule property was acquired by the Land Acquisition Officer and the compensation was deposited, the petitioners are entitled to the shares as per Muslim Personal Law. Therefore, the petitioners filed the petition to implead them as claimant Nos.38, 39 and 40 in L.A.O.P.No.320 of 2017.
4. The respondents/claimant Nos.1 to 5 filed counter before the Court below stating that the shares of the 5 SK,J CRP.No.704 of 2021 parties were adjudicated by the Civil Court and therefore, the question of adjudicating the rights of third parties does not arise and the petitioners were not parties in O.S.No.272 of 1989 and as such they are third parties to the suit. Moreover the decree passed by the trial Court in O.S.No.272 of 1989 was confirmed by this Court determining the shares.
5. The Court below having observed that the petitioners/proposed claimants were not parties to the partition suit in O.S.No.272 of 1989 and as the claimants, who are not satisfied with the award passed by the Land Acquisition Officer, made a reference only for enhancement of the compensation, the petitioners cannot be impleaded as necessary parties and dismissed the said petition. Aggrieved by the same, the petitioners filed the present revision. 6
SK,J CRP.No.704 of 2021
6. Learned Counsel for the petitioners submits that the Court below failed to implead the petitioners as legal representatives of the deceased Syed Jaffar Ali to which the reference was made under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2014 (for short 'the Act'). He submits that the Court below erred in holding that the revision petitioners are not parties to the suit in O.S.No.272 of 1989, which was decided finally in C.C.C.A.No.52 of 1991. He submits that as the other parties to the proceedings did not bring the petitioners as legal heirs of the deceased 1st defendant and by suppressing it, they have obtained the decree, the petitioners filed the present petition.
7. Learned Counsel for the petitioners further submits that the Court below erred in holding that the reference was made to the Court for enhancement of 7 SK,J CRP.No.704 of 2021 compensation instead of apportionment of the money. He submits that as the petitioners are legal heirs of the deceased Syed Jaffar Ali, they are liable to be impleaded as claimant Nos.38, 39 and 40 in L.A.O.P.No.320 of 2016 and he requested to allow the revision petition.
8. Learned counsel for the petitioners has relied on the judgment of this Court in Polaki Rsojamani and others vs. Mandal Revenue Officer, Palakonda and others 1.
9. On the other hand, learned Counsel for the respondents submits that as the petitioners were not parties in the partition suit in O.S.No.272 of 1989, they are third parties to the claim and the shares of the parties were already adjudicated by the Civil Court and the same was also confirmed by this Court. 1 1997(6) ALD 511 8 SK,J CRP.No.704 of 2021
10. Learned Counsel for the respondents submits that one late Ayesha Bi was blessed with two sons namely Syed Jaffar Ali and Syed Raheem and after demise of late Ayesha Bi, his two sons were enjoyed all the properties jointly including the subject property under the LAOP. He submits that after demise of Syed Raheem, his successors i.e., respondent Nos.2 to 11 were not allowed to participate in the family business which resulted in institution of partition suit in O.S.No.272 of 1989 on the file of the Additional Chief Judge-cum-II Metropolitan Sessions Judge, Hyderabad. He submits that the father of respondent No.13 i.e. Syed Jaffar Ali has claimed exclusive rights over the subject properties in the O.P., as his exclusive property under the Benami Act, but the same was rejected and against the same, he preferred C.C.C.A.No.52 of 1991 before this Court and the same was dismissed confirming the judgment and decree in O.S.No.272 of 9 SK,J CRP.No.704 of 2021 1989, but the cross appeal preferred by the respondents was allowed. He submits that the petitioners being aware of all these proceedings, they did not take steps to implead as parties in the partition suit or the appeal.
11. Learned Counsel for the respondents further submits that the self acquired properties of Syed Jaffer Ali at Bidar, Karnata were settled exclusively in favour of the petitioners as such they did not claim any share in the properties situated at Hyderabad and the petitioners have not approached the Referring Officer to claim any share in the property acquired by them when the other parties have filed their respective claims/objections and the petitioners have no locus standi to claim any share in the properties and requested to dismiss the revision petition. 10
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12. During pendency of the present revision, the petitioners filed I.A.No.1 of 2022 seeking to bring on record the legal representatives of respondent No.27 i.e., Amina Begum as respondent Nos.39 to 45 and also filed I.A.No.2 of 2022 to bring on record the legal representatives of respondent No.12 i.e, Syed Azeem as respondent Nos.46 to 51 in the revision. In these two I.As., this Court ordered notice and the notices were sent to the legal heirs of the deceased respondent Nos.12 and 27, but the same were returned un-served on the ground that 'insufficient address'. At the time of arguments, learned counsels appearing for both sides submit that they have received information that the legal representatives of respondent Nos.12 and 27 are not in India and they are formal parties in the revision. The petitioners are not pressing for any relief against the deceased respondent Nos.12 and 27. In view of the 11 SK,J CRP.No.704 of 2021 same, the Civil Revision Petition is dismissed against the respondent Nos.12 and 27 as abated.
13. At the time of arguments, the petitioner filed a memo dated 18.10.2023 stating that the revision petitioner No.1-Smt Shahnaz Begum @ Bader Shaheen w/o. Late Jafar Ali died on 14.12.2020 and her legal heirs are already on record as revision petitioner Nos.2 and 3 and requested to treat them as legal heirs of petitioner No.1. In view of the same, the petitioner Nos.2 and 3 are treated as legal heirs of the petitioner No.1 in this revision petition.
14. After hearing both sides and perused the record, this Court is of the considered view that the petitioners herein being legal heirs of late Syed Jaffar Ali as his second wife and children to be impleaded as claimant Nos.38, 39 and 40 in L.A.O.P.No.320 of 2017 pending before the Court below. The said application was 12 SK,J CRP.No.704 of 2021 dismissed by the Court below on the ground that the petitioners were not parties to the partition suit in O.S.No.272 of 1989 and the reference is only for enhancement of the compensation, the petitioners do not become necessary parties and they are not entitled to be impleaded as parties in L.A.O.P.No.320 of 2017. The contesting respondents in the present Civil Revision Petition are not disputing the relationship between the petitioners and late Syed Jaffar Ali, but they disputed that the petitioners were not impleaded as legal heirs in C.C.C.A.No.52 of 1991 and already they have been enjoying their shares at Bidar, Karnataka State exclusively given to them by late Syed Jaffar Ali.
15. The Special Deputy Collector/Land Acquisition Officer, Metro Rail Project, GHMC, Hyderabad in his proceedings No.C1/307/2013 dated 05.05.2015 has 13 SK,J CRP.No.704 of 2021 declared that there is a title dispute in respect of the acquired land and therefore, the matter was referred to the City Civil Court, Hyderabad for adjudication and accordingly, compensation amount was deposited in the Civil Court under Section 77 of the Land Acquisition Act, 2013, and the same was numbered as L.A.O.P.No.320 of 2017.
16. The petitioners being the legal heirs of late Syed Jaffar Ali are interested persons in the compensation amount deposited in L.A.O.P.No.320 of 2017 and only on the ground that they were not parties in the suit in O.S.No.272 of 1989, their implead petitions were rejected by the Court below. In fact, C.C.C.A.No.52 of 1991 and Cross-Objections (SR) No.27079 of 1999 and C.R.P.Nos.2852, 2853 and 2854 of 1995 were disposed of by this Court in a common order dated 20.09.2016 and the petitioners herein were arrayed as the 14 SK,J CRP.No.704 of 2021 respondent Nos.18 to 20 in C.R.P.No.2852 of 1995, as the respondent Nos.11 to 13 in C.R.P.Nos.2853 and 2854 of 1995 being legal heirs of late Syed Jaffar Ali , but mentioned that the petitioners were not necessary parties to the litigation. It is clearly shows that the names of petitioners were made as parties as legal heirs of late Syed Jaffar Ali, but their names were purposefully not impleaded as appellants in C.C.C.A.No.52 of 1991 by the 1st wife and her children of late Syed Jaffar Ali, which would not take away the rights of all the legal heirs of late Syed Jaffar Ali.
17. The common order passed in C.C.C.A.No.52 of 1991 and Cross-Objections (SR) No.27079 of 1999 and C.R.P.Nos.2852, 2853 and 2854 of 1995, this Court has given following directions:
"C.C.C.A.No.52 of 1991 and C.R.P.Nos.2852, 2853 and 2854 of 1995 filed by the appellants/revision petitions are dismissed.15
SK,J CRP.No.704 of 2021 Cross-Objections (SR) No.27079 of 1999 are allowed and the decree and judgment in O.S.No.272 of 1989 passed by the trial Court is modified to the effect that plaintiffs/respondents 1 to 10 in the appeal are entitled to 101 shares; defendants 2 to 7/respondents 11 to 16 and 18 to 28 are entitled to 59 shares and defendants 1 and 8/appellants 1 to 8 are entitled to 160 shares in Items 1,3 and 4 of plaint schedule properties".
18. Admittedly, late Syed Jaffar Ali was defendant No.2 in the suit in O.S.No.272 of 1989 and he was entitled to 59 shares and 150 shares in item Nos.1,3 and 4 of the suit schedule property and the petitioners being legal heirs of late Syed Jaffar Ali are entitled to be eligible to get the compensation on par with his first wife and her children and the Court below ought not to have rejected the implead applications on the ground that they were not parties to the suit in O.S.No.272 of 1989.
19. The Court below erred in holding that the reference was made only for enhancement of the compensation and not for apportionment of 16 SK,J CRP.No.704 of 2021 compensation and the petitioners cannot be impleaded as legal heirs of late Syed Jaffar Ali, but the reference was made for apportionment of compensation.
20. The Judgment relied on by the learned counsel for the petitioners in Polaki Rojamani's case (cited 1 supra) apply to the instant case and the relevant portion as follows;
"In the present case, the dispute referred by the Land Acquisition Officer in L.A.O.P.No. 39 of 1990 before the Sub-Court, Rajam is only on the question of apportionment of compensation among the claimants. The Court is called upon only to determine the quantum of compensation to be paid to each of the claimants already on record. I, therefore, hold that if a dispute is only as to the apportionment of the compensation among the claimants already on record, filing of an application under Order 1 Rule 10 of CPC by certain persons seeking to implead themselves as parties to the dispute is not permissible as in my considered view, they are not 'interested persons' in the dispute. On the contrary, if the reference Under Section 30 of the Act is on the question of determining as to who are the persons entitled to receive compensation, then it is permissible to the Civil Court to entertain an application under Order 1 Rule 10 of CPC as such parties are saved Under Section 53 of the Land Acquisition Act which enables them to get themselves impleaded in the dispute".17
SK,J CRP.No.704 of 2021
21. This matter was reserved for judgment after hearing both sides on 30.08.2023. Thereafter, the respondents filed I.A.No.1 of 2023 in C.R.P.No.704 of 2021 seeking to reopen the Civil Revision Petition for further hearing under the caption "for being mentioned". In the said I.A., the respondents have brought to the notice of this Court that the petitioner Nos.2 and 3 herein have filed O.S.No.241 of 2022 on the file of the XI Chief Judge, City Civil Courts at Hyderabad for declaration to declare them as legal heirs and successors of late Syed Jaffer Ali, for partition and for mesne profits in the suit schedule properties and in view of the same, the Civil Revision Petition is not maintainable and has become infructuous. Learned counsels for both sides have submitted their arguments in this regard.
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22. In fact, the petitioners filed the present revision petition questioning the orders dated 06.12.2019 in I.A.No.1223 of 2017 in L.A.O.P.No.320 of 2017 on the file of the X Additional Chief Judge, City Civil Court at Hyderabad with regard to the share in the land acquisition compensation with respect to one of the suit schedule properties. Therefore, mere filing of the subsequent suit cannot take away the rights of the petitioners to implead them in the land acquisition proceedings.
23. In view of the same, the petitioners are entitled to be impleaded as claimant Nos.38, 39 and 40 in L.A.O.P.No.320 of 2017 and the impugned orders are liable to be set aside.
24. In view of the above findings, the Civil Revision petition is allowed by setting aside the order dated 06.12.2019 in I.A.No.1223 of 2017 in 19 SK,J CRP.No.704 of 2021 L.A.O.P.No.320 of 2017 on the file of the X Additional Chief Judge, City Civil Court at Hyderabad. Consequently, I.A.No.1223 of 2017 in L.A.O.P.No.320 of 2017 is allowed. No order as to costs.
25. Miscellaneous applications, if any pending in this revision, shall stand closed.
_______________ K. SARATH, J Date: 31.10.2023 Sj;