Telangana High Court
K.Srinivasa Prasad, Visakhapatnam vs Dr. N.S.D.Prasada Rao, Hyderabad And 17 ... on 9 September, 2024
* THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
+ Applications No.361, 364, 367, 370 of 2007;
1228, 1235, 1239, 1249 of 2008 & 43 of 2009
In
C.S. No.14 of 1958
% 09.09.2024
# Between:
M.Anand S/o. M.Seshagiri Rao and others,
Aged about 46 years, Occ: Business,
R/o.121/2/ Vivekananda nagar, P.O.Kukatpally,
Hyderabad.
... Claimants
Vs.
Dr. N.S.D.Prasad Rao S/o. N.K.Rao,
Aged about 40 years, Occ: Doctor
R/o.4-115, Sri Hari Nagar, Moosapet, Hyderabad.
... Respondents/Judgment Debtors
! Counsel for Plaintiffs :
^ Counsel for Defendants : Mr. Pottigari Sridhar Reddy and others
Mr. Sarosh Sam Bastawala and others
<GIST:
> HEAD NOTE:
? Cases referred
1. AIR 1980 SC 157
2. 2004 (5) ALD 632
3. (2002) 1 SCC 662
4. (2007) 2 SCC 355
5. (2007) 4 SCC 221
6. 2023 INSC 581 : 2023 SCC OnLine 738
7. (2008) 12 SCC 401
8. (2020) 20 SCC 465
9. (130 I.A. (1884-85) 150
10. (1902) 4 Bom.L.R. 893
11. (1991) 1 SCC 715
12. (2006) 13 SCC 401
13. AIR 1939 Bom. 454
14. AIR (29) 1942 Bombay 44
HC, J & NVSK, J
2 Applns. No.361 of 2007 and batch
In
C.S. No.14 of 1958
15. AIR (32) 1945 Bombay 338
16. AIR 1956 Bom.345
17. AIR 1958 Allahabad 673
18. AIR 1959 Mysore 233
19. AIR 1971 Bombay 21
20. AIR 1974 Madhya Pradesh 12
21. (1986) 1 SCC 83
22. AIR 1995 Bombay 445
23. AIR 2001 Bombay 303
24. AIR 2003 Bombay 52
25. AIR 1991 Bombay 328
26. 1998 (3) SCC 723
HC, J & NVSK, J
3 Applns. No.361 of 2007 and batch
In
C.S. No.14 of 1958
THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
Applications No.361, 364, 367, 370 of 2007;
1228, 1235, 1239, 1249 of 2008 & 43 of 2009
In
C.S. No.14 of 1958
COMMON ORDER:
(Per the Hon'ble Sri Justice N.V. Shravan Kumar)
Mr. Vedula Venkataramana, learned Senior Counsel
representing Mr. P.T.P. Sastry, learned counsel for the applicants.
Dr. Sarosh Sam Bastawala, learned counsel for the
respondents.
2. Application No.361 of 2007 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition A to K properties and to set aside the Bailiff's report and
panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file of the
Principal District Judge, Ranga Reddy District at L.B.Nagar, as being
illegal and void. Alternatively, deliver actual, physical and vacant
possession of the petition schedule A to F properties to the claim
petitioners herein, by evicting the respondents No.1 to 5 if this Court
comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
3. It is submitted that the 1st claim petitioner is the owner and
possessor of Plot bearing No.23 admeasuring 300 square yards,
in Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
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having purchased the same under a registered sale deed bearing
document No.974/2001 dated 28.02.2001, from its previous owners
B.Shankaraiah and others, described as Schedule 'A' property.
4. Similarly, 2nd and 3rd claim petitioners are the joint owners and
possessors of Plot bearing No.33 admeasuring 315 square yards in
Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
having purchased the same under a registered sale deed bearing
document No.160/2001 dated 14.09.2000, from its previous owners
B.Shankaraiah and others, described as Schedule 'B' property.
5 The 4th claim petitioner submitted that he is the owner and
possessor of Plot bearing No.47 admeasuring 300 square yards in
Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
having purchased the same under a registered sale deed bearing
document No.977/2001, dated 28.02.2001, from its previous owners
B.Shankaraiah and others, described as Schedule 'C' property.
6. The 5th claim petitioner submitted that he is the absolute owner
and possessor of Plot bearing No.49 admeasuring 300 square yards in
Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
having purchased the same under a registered sale deed bearing
document No.978/2001, dated 28.02.2001, from its previous owners
B.Shankaraiah and others, described as Schedule 'D' property.
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7. The 6th claim petitioner submitted that he is the absolute owner
and possessor of Plots bearing Nos.51 and 52 admeasuring 300
square yards each. All the said plots are situated in Sy.No.145 of
Hydernagar village, Balanagar Mandal, R.R. District having purchased
the same under a registered sale deeds bearing document
No.2177/2001 and 531/2002, dated 26.04.2001and 04.02.2001, from
its previous owners B.Shankaraiah and others, described as Schedule
'E' and 'F' property.
8. Application No.364 of 2007 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to I properties and to set aside the Bailiff's report
and panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file
of the Principal District Judge, Ranga Reddy District at L.B.Nagar, as
being illegal and void. Alternatively, deliver actual, physical and
vacant possession of the petition schedule A to I properties the claim
petitioners herein, by evicting the respondents No.1 to 15 if this Court
comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
9. In support of this application, the claim petitioners submits that
the claim petition No.1 is the absolute owner and possessor of four
plots No.69 & 70, 71 & 72, both admeasuring 550 square yards each
in Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District,
having purchased the same under two registered sale deeds bearing
document Nos.5907 of 2001 and 5906 of 2001, both dated 02.11.2001
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from its previous owners B.Dasarath and M.Ravinder, described as
Schedule 'A' and 'B' properties.
10. The claim petitioner No.2 is the absolute owner and possessor of
plot bearing No.61 admeasuring 300 square yards in Sy.No.145 of
Hydernagar village, Balanagar Mandal, R.R. District having purchased
the same under registered sale deed bearing document No.154 of 2001
dated 31.08.2000 from its previous owners B.Dasarath and
M.Ravinder GPA holders of M/s. B.Shankaraiah & others, described
as Schedule 'C' property.
11. The claim petitioner No.3 is the absolute owner and possessor of
Plot No.38 admeasuring 300 square yards in Sy.No.145 of Hydernagar
village, Balanagar Mandal, R.R. District, having purchased the same
under a registered sale deed bearing document No.976 of 2001 dated
28.02.2001 from its previous owner B.Dasarath and M.Ravinder GPA
holders of M/s. B.Shankaraiah and others, described as Schedule
'D' property.
12. The claim petitioner No.4 is the absolute owner and possessor of
two plots No.7 (part) both admeasuring 318.1 square yards each in
Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
having purchased the same under two registered sale deeds bearing
documents No.2648 of 2001 and 2649 of 2001, both dated 19.05.2001
from its previous owners B.Dasarath & M.Ravinder, GPA holders of
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M/s B.Shankaraiah and others, described as Schedule 'E' & 'F'
properties.
13. The claim petitioner No.5 is the absolute owner and possessor of
three Plots No.8 (part), admeasuring 316.28 square yards each in
Sy.No.145 of Hydernagar village, Balanagar Mandal, R.R. District
havig purchased the same under three registered sale deeds bearing
documents No.2650 of 2001, 2651 of 2001 and 2652 of 2001, all
dated 19.05.2001 from its previous owners B.Dasarath & M.Ravinder,
GPA holders of M/s. B.Shankaraiah and others, described as
Schedule 'G', 'H' and 'I' properties.
14. Application No.367 of 2007 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to K properties and to set aside the Bailiff's report
and panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file
of the Principal District Judge, Ranga Reddy District at L.B.Nagar, as
being illegal and void. Alternatively, deliver actual, physical and
vacant possession of the petition schedule A to K properties to the
claim petitioners herein, by evicting the respondents No.1 to 15 if this
Court comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
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15. In support of this application, the claim petitioners have filed 9
sale deeds.
(i) The claim petitioners No.1 and 2 are claiming three properties
i.e. Plots No.9 (part); Plot No.9 (part) and Plot No.10 (part) to an extent
of 545, 545 and 534 square yards, in Sy.No.145 (part) of Hydernagar
village, Balanagar Mandal, R.R. District, through registered
documents bearing No.4965, 4966 and 2406 of 2003, dated
19.07.2003 (two sale deeds) and 08.04.2003, respectively, described
as Schedule 'A' and 'B' properties.
(ii) The claim petitioners No.3 and 4 are claiming two properties
as joint ownership i.e. Plots No.12 and 13 to an extent of 300 square
yards, each in Sy.No.145 (part) of Hydernagar village, Balanagar
Mandal, R.R. District, through registered document bearing No.2403
and 2405 of 2003, dated 08.04.2003, described as Schedule 'C' and
'D' properties.
(iii) The claim petitioners No.4, 5 and 6 are claiming one
property as joint ownership i.e. Plot No.11 to an extent of 308.33
square yards, in Sy.No.145 (part) of Hydernagar village, Balanagar
Mandal, R.R. District, through registered document bearing No.2404
of 2003, dated 08.04.2003, described as Schedule 'E' property.
(iv) The claim petitioner No.7 is claiming two properties as
ownership i.e. Plots No.57 and 58 to an extent of 300 square yards,
each in Sy.No.145 (part) of Hydernagar village, Balanagar Mandal,
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R.R. District, through registered document bearing No.5915 of 2001
and 4695 of 2001, dated 02.11.2001 and 29.08.2001, described as
Schedule 'F' and 'G', properties respectively.
(v) The claim petitioner No.8 is claiming two properties as
ownership i.e. Plots No.2 & 3 part and 2 & 3 part to an extent of 719
and 286 square yards, each in Sy.No.145 of Hydernagar village,
Balanagar Mandal, R.R. District, through registered document bearing
No.6509 of 2001 and 6767 of 2001, dated 04.12.2001, described as
Schedule 'H' and 'I' properties.
(vi) The claim petitioner No.9 is claiming two properties i.e. Plots
No.1 & 2 (part) and Plot No.1 (part) to an extent of 670 and 437,
respectively, in Sy.No.145 of Hydernagar village, Balanagar Mandal,
R.R. District, as ownership through registered document bearing
No.6510 of 2001 and 6466 of 2001, dated 04.12.2001, described as
Schedule 'J' and 'K' properties.
16. Application No.370 of 2007 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule properties and to set aside the Bailiff's report and
panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file of the
Principal District Judge, Ranga Reddy District at L.B.Nagar, as being
illegal and void. Alternatively, deliver actual, physical and vacant
possession of the petition schedule properties to the claim petitioners
herein, by evicting the respondents No.1 to 15 if this Court comes to
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the conclusion that as per the Bailiff's report dated 02.04.2007 the
claim petitioners have lost their possession.
17. In support of this application, the claim petitioner has filed one
sale deed.
(i) The claim petitioner No.1 is claiming one property i.e. Plot
No.26 to an extent of 300 square yards, in the HUDA approved layout
known as "Diamond Hills" in Sy.No.145 (part) of Hydernagar village,
Balanagar Mandal, R.R. District, through registered document bearing
No.150 of 2001, dated 10.08.2000, described as petition Schedule
property.
18. Application No.1228 of 2008 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to E properties and to set aside the Bailiff's report
and panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file
of the Principal District Judge, Ranga Reddy District at L.B.Nagar, as
being illegal and void. Alternatively, deliver actual, physical and
vacant possession of the petition schedule A to E properties to the
claim petitioners herein, by evicting the respondents No.1 to 15 if this
Court comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
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19. In support of this application, the claim petitioners have filed
5 sale deeds.
(i) The claim petitioner No.1 is claiming one property i.e. Plot
No.48 to an extent of 243.33 square yards, in Sy.No.145 (part) known
as 'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.2531 of 2006, dated
02.02.2006, described as Schedule 'A' property.
In support of this application, the claim petitioners have filed 9 sale
deeds.
(ii) The claim petitioner No.2 is claiming one property i.e. Plot
No.55 to an extent of 300 square yards, in HUDA approved layout
known as 'Diamond Hills' in Sy.No.145 (part) of Hydernagar village,
Balanagar Mandal, R.R. District, through registered document bearing
No.981 of 2001, dated 28.02.2001, described as Schedule 'B' property.
In support of this application, the claim petitioners have filed 9 sale
deeds.
(iii) The claim petitioner No.3 is claiming one property i.e. Plot
No.32 to an extent of 383 square yards, in Sy.No.145 (part) in HUDA
approved layout known as 'Diamond Hills' of Hydernagar village
Balanagar Mandal, R.R. District, through registered document bearing
No.525 of 2002, dated 04.02.2002, described as Schedule 'C' property.
(iv) The claim petitioner No.4 is claiming one property i.e. Plot
No.31 to an extent of 357 square yards, in Sy.No.145 (part) in HUDA
approved layout known as 'Diamond Hills' of Hydernagar village,
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Balanagar Mandal, R.R. District, through registered document bearing
No.527 of 2002, dated 04.02.2002, described as Schedule 'D' property.
(v) The claim petitioner No.5 is claiming one property i.e. Plot
No.34 to an extent of 300 square yards, in Sy.No.145 (part) in HUDA
approved layout known as 'Diamond Hills' of Hydernagar village,
Balanagar Mandal, R.R. District, through registered document bearing
No.2175 of 2001, dated 26.04.2001, described as Schedule 'E'
property.
20. Application No.1235 of 2008 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to J properties and to set aside the Bailiff's report
and panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file
of the Principal District Judge, Ranga Reddy District at L.B.Nagar, as
being illegal and void. Alternatively, deliver actual, physical and
vacant possession of the petition schedule A to J properties to the
claim petitioners herein, by evicting the respondents No.1 to 15 if this
Court comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
21. In support of this application, (11) claim petitioners have filed
(10) sale deeds.
(i) The claim petitioner No.1 is claiming one property i.e. Plot
No.35 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
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District, through registered document bearing No.2647 of 2001, dated
21.05.2001, described as Schedule 'A' property.
(ii) The claim petitioner No.2 is claiming one property i.e. Plot
No.17 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.528 of 2002, dated
04.02.2002, described as Schedule 'B' property.
(iii) The claim petitioner No.3 is claiming one property i.e. Plot
No.75 to an extent of 275 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.149 of 2000, dated
29.07.2000, described as Schedule 'C' property.
(iv) The claim petitioners No.4 and 5 are claiming one property
as joint ownership i.e. Plot No.74 to an extent of 275 square yards, in
Sy.No.145 (part) known as 'Diamond Hills' of Hydernagar village
Balanagar Mandal, R.R. District, through registered document bearing
No.148 of 2000, dated 29.07.2000, described as Schedule 'D' property.
(v) The claim petitioner No.6 is claiming one property i.e. Plot
No.59 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.982 of 2001, dated
28.02.2001, described as Schedule 'E' property.
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(vi) The claim petitioner No.7 is claiming one property i.e. Plot
No.20 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.973 of 2001, dated
28.02.2001, described as Schedule 'F' property.
(vii) The claim petitioner No.8 is claiming one property i.e. Plot
No.43 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.146 of 2000, dated
10.05.2000, described as Schedule 'G' property.
(viii) The claim petitioner No.9 is claiming one property i.e. Plot
No.44 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.147 of 2000, dated
10.05.2000, described as Schedule 'H' property.
(ix) The claim petitioner No.10 is claiming one property i.e. Plot
No.25 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.1258 of 2001, dated
15.02.2001, described as Schedule 'I' property.
(x) The claim petitioner No.11 is claiming one property i.e. Plot
No.36 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
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District, through registered document bearing No.2646 of 2001, dated
21.05.2001, described as Schedule 'J' property.
22. Application No.1239 of 2008 (Application No.1241 of 2008)
has been filed seeking to stay all further proceedings in E.P. No.26 of
2000 on the file of the Principal District Judge, Ranga Reddy District.
However, Application No.1241 of 2008 is not heard in this batch of
applications.
(Application No.1241 of 2008) has been filed seeking to declare that
the claim petitioners are the absolute owners and possessors of
petition schedule A to J (it should be A and B) properties and to set
aside the Bailiff's report and panchanama dated 02.04.2007, as being
illegal and void. Alternatively, deliver actual, physical and vacant
possession of the petition schedule A to J (it should be A and B)
properties to the claim petitioners herein, by evicting the respondents
No.1 to 15 if this Court comes to the conclusion that as per the
Bailiff's report dated 02.04.2007 the claim petitioners have lost their
possession.
23. Application No.1249 of 2008 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to G properties; (ii) set aside the common order
dated 26.08.1996 passed in Applications No.469 of 1996 and 470 of
1996 in C.S. No.14 of 1958 as it was obtained by suppression of facts
and judicial decrees and without there being any allocation and
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division of shares in terms of preliminary decree passed in C.S. No.14
of 1958 and decrees in O.S. No.62 of 1980, O.S. No.226 of 1980 and
O.S. No.79 of 1987; (iii) to set aside the assignment made in favour of
the respondents herein as the Assignor has no right and jurisdiction
to assign the land in favour of the respondents; (iv) to declare the
warrant executed by the Bailiff on 02.04.2007 and Panchanama dated
02.04.2007 in E.P. No.26 of 2000 as null and void and without
jurisdiction and contrary to law.
24. In support of this application, (7) claim petitioners have filed (7)
sale deeds.
(i) The claim petitioner No.1 is claiming one property i.e. Plots
No.67 & 68 (part) to an extent of 348.53 square yards, in Sy.No.145
(part) known as 'Diamond Hills' of Hydernagar village, Balanagar
Mandal, R.R. District, through registered document bearing No.5914
of 2001, dated 02.11.2001, described as Schedule 'A' property.
(ii) The claim petitioner No.2 is claiming one property i.e. Plot
No.53 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.530 of 2002, dated
04.02.2002, described as Schedule 'B' property.
(iii) The claim petitioner No.3 is claiming one property i.e. Plot
No.14 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
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District, through registered document bearing No.4694 of 2001, dated
29.08.2001, described as Schedule 'C' property.
(iv) The claim petitioner No.4 is claiming one property i.e. Plot
No.50 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.2176 of 2001, dated
26.04.2001, described as Schedule 'D' property.
(v) The claim petitioner No.5 is claiming two properties i.e. Plots
No.62 & 63 to an extent of 513.33 square yards, in Sy.No.145 (part)
known as 'Diamond Hills' of Hydernagar village, Balanagar Mandal,
R.R. District, through registered document bearing No.1382 of 2002,
dated 09.03.2002, described as Schedule 'E' property.
(vi) The claim petitioner No.6 is claiming one property i.e. Plot
No.37 to an extent of 300 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.975 of 2001, dated
28.02.2001, described as Schedule 'F' property.
(vii) The claim petitioner No.7 is claiming one property i.e. Plot
No.66 to an extent of 275 square yards, in Sy.No.145 (part) known as
'Diamond Hills' of Hydernagar village, Balanagar Mandal, R.R.
District, through registered document bearing No.3278 of 2003, dated
12.05.2003, described as Schedule 'G' property.
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25. Application No.43 of 2009 has been filed seeking to declare
that the claim petitioners are the absolute owners and possessors of
petition schedule A to R properties and to set aside the Bailiff's report
and panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file
of the Principal District Judge, Ranga Reddy District at L.B.Nagar, as
being illegal and void. Alternatively, deliver actual, physical and
vacant possession of the petition schedule A to R properties to the
claim petitioners herein, by evicting the respondents No.1 to 15 if this
Court comes to the conclusion that as per the Bailiff's report dated
02.04.2007 the claim petitioners have lost their possession.
26. In support of this application, it is submitted that the claim
petitioner No.1 is the owner and possessor of Plot No.19 admeasuring
300 square yards in Sy.No.14 (part) in the HUDA approved layout
known as "DIAMOND HILLS" situated at Hydernagar village,
Balanagar Mandal, Kukatpally Municipality, Ranga Reddy District,
having purchased the same under a registered sale deed bearing
document No.529 of 2002 dated 04.02.2002 from its previous owners
B.Shankaraiah and others, described as Schedule 'A' property.
27. The claim petitioners No.2 and 3 are the owners and possessors
of Plot No.39 and 40 admeasuring 300 square yards each in Sy.No.14
(part) in the HUDA approved layout known as "DIAMOND HILLS"
situated at Hydernagar village, Balanagar Mandal, Kukatpally
Municipality, Ranga Reddy District, having purchased the same under
a registered sale deed bearing documents No.5910 and 5911 of 2001
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dated 22.11.2001 from its previous owners B.Shankaraiah and others,
described as Schedule 'B' & 'C' properties.
28. The claim petitioner No.4 is the owner and possessor of Plot
No.46 admeasuring 300 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.4693 of 2001 dated 29.08.2001 from its
previous owners B.Shankaraiah and others, described as Schedule 'D'
property.
29. The claim petitioner No.5 is the owner and possessor of Plot
No.24 admeasuring 150 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.151 of 2003 dated 08.01.2003 from its previous
owners B.Shankaraiah and others, described as Schedule 'E' property.
30. The claim petitioner No.6 is the owner and possessor of Plot
No.4 admeasuring 200 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
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bearing document No.152 of 2003 dated 08.01.2003 from its previous
owners B.Shankaraiah and others, described as Schedule 'F' property.
31. The claim petitioner No.7 is the owner and possessor of Plot
No.24 admeasuring 116.60 square yards in Sy.No.14 (part) in the
HUDA approved layout known as "DIAMOND HILLS" situated at
Hydernagar village, Balanagar Mandal, Kukatpally Municipality,
Ranga Reddy District, having purchased the same under a registered
sale deed bearing document No.149 of 2003 dated 08.01.2003 from its
previous owners B.Shankaraiah and others, described as Schedule 'G'
property.
32. The claim petitioners No.8 and 9 are the owners and possessors
of Plot No.15 admeasuring 300 square yards in Sy.No.14 (part) in the
HUDA approved layout known as "DIAMOND HILLS" situated at
Hydernagar village, Balanagar Mandal, Kukatpally Municipality,
Ranga Reddy District, having purchased the same under a registered
sale deed bearing document No.6468 of 2001 dated 04.12.2001 from
its previous owners B.Shankaraiah and others, described as Schedule
'H' property.
33. The claim petitioner No.10 is the owner and possessor of Plots
No.5 and 6 admeasuring 600 square yards in Sy.No.14 (part) in the
HUDA approved layout known as "DIAMOND HILLS" situated at
Hydernagar village, Balanagar Mandal, Kukatpally Municipality,
Ranga Reddy District, having purchased the same under a registered
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sale deed bearing document No.6469 of 2001 dated 04.12.2001 from
its previous owners B.Shankaraiah and others, described as Schedule
'I' property.
34. The claim petitioner No.11 is the owner and possessor of Plot
No.64 admeasuring 275 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.5916 of 2001 dated 02.11.2001 from its
previous owners B.Shankaraiah and others, described as Schedule 'J'
property.
35. The claim petitioner No.12 is the owner and possessor of Plot
No.41 and 42 admeasuring 300 square yards each in Sy.No.14 (part)
in the HUDA approved layout known as "DIAMOND HILLS" situated at
Hydernagar village, Balanagar Mandal, Kukatpally Municipality,
Ranga Reddy District, having purchased the same under a registered
sale deed bearing document No.680 of 2000 and 681 of 2000 dated
29.11.2000 from its previous owners B.Shankaraiah and others,
described as Schedule 'K' & 'L' properties.
36. The claim petitioner No.13 is the owner and possessor of Plot
No.54 admeasuring 300 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
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District, having purchased the same under a registered sale deed
bearing document No.979 of 2001 dated 28.02.2001 from its previous
owners B.Shankaraiah and others, described as Schedule 'M'
property.
37. The claim petitioner No.14 is the owner and possessor of Plot
No.22 admeasuring 300 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.5909 of 2001 dated 02.11.2001 from its
previous owners B.Shankaraiah and others, described as Schedule 'N'
property.
38. The claim petitioner No.15 is the owner and possessor of Plot
No.79 admeasuring 275 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.5912 of 2001 dated 02.11.2001 from its
previous owners B.Shankaraiah and others, described as Schedule
'O' property.
39. The claim petitioner No.16 and 17 are the owners and
possessors of Plot No.56 admeasuring 300 square yards in Sy.No.14
(part) in the HUDA approved layout known as "DIAMOND HILLS"
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situated at Hydernagar village, Balanagar Mandal, Kukatpally
Municipality, Ranga Reddy District, having purchased the same under
a registered sale deed bearing document No.980 of 2001 dated
28.02.2001 from its previous owners B.Shankaraiah and others,
described as Schedule 'P' property.
40. The claim petitioner No.18 is the owner and possessor of Plot
No.30 admeasuring 367 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.526 of 2002 dated 04.02.2002 from its previous
owners B.Shankaraiah and others, described as Schedule 'Q' property.
41. The claim petitioner No.19 is the owner and possessor of Plot
No.27 admeasuring 300 square yards in Sy.No.14 (part) in the HUDA
approved layout known as "DIAMOND HILLS" situated at Hydernagar
village, Balanagar Mandal, Kukatpally Municipality, Ranga Reddy
District, having purchased the same under a registered sale deed
bearing document No.150 of 2003 dated 08.01.2003 from its previous
owners B.Shankaraiah and others, described as Schedule 'R' property.
42. Since in all these applications i.e. Application No.361 of 2007
and batch, similar issues have been raised for consideration, as such
they are being disposed of by this common order.
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43. It is not out of place to mention here that along with these
applications, the respondents in this batch of applications have also
filed an Application No.450 of 2007 in Application Nos.469 and 470 of
1996 in C.S. No.14 of 1958 with the following prayer.
"To pass a final decree in terms of the preliminary
decree dated 28.06.1963 in relation to Item No.38
of Schedule IV of the preliminary decree in C.S.
No.14 of 1958 having the recognised assignment
of land in respect of land in Sy.No.145/3 of
Hydernagar village, Balanagar Mandal, Ranga
Reddy District in the extent of Ac.7.00 and to
register the same with the registration
authorities."
Wherein, it is averred that they have obtained the assignment of lands
from the General Power of Attorney of Kazim Nawaz Jung
(D-157) and on that basis, they have filed Application Nos.469 and
470 of 1996 seeking recognition of assignment of rights, for a direction
to deliver possession and for mutation and the same was allowed by a
learned Single Judge of this Court on 26.08.1996 and therefore they
are entitled for passing of a final decree in terms of the assignment in
respect of Acs.7.00 of land by virtue of the power of attorney of Kazim
Nawaz Jung (D-157).
44. The learned Senior Counsel Sri Vedula Venkatramana
appearing for the respondents in Application No.450 of 2007 would
submit that a final decree can be passed in a partition suit only in
favour of a sharer under the preliminary decree or a purchaser under
a registered sale deed or an assignee under registered assignment
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deed from the sharer. To substantiate the said averments the learned
Senior Counsel placed reliance on the judgments reported in the case
of Khemchand Shankar Choudhari and another Vs. Vishnu Hari
Patil and others, (1983 (1) SCC 18), Venkata Reddy and others Vs.
Pethi Reddy, (AIR 1963 SC 992) and Khan Bahadur, C.B.
Taraporwala and another Vs. Kazim Ali Pasha and others,
(AIR 1966 AP 361).
45. It is further submitted that the recognition of an assignment of
decretal rights is not recognised by law and it shall not create any
rights as held in Dhani Ram Gupta and Others Vs. Lala Sri Ram
and another (AIR 1980 SC 157). Thus the applicants in Application
No.450 of 2007 do not have any semblance of legal right to make a
prayer for passing of final decree on the basis of an assignment
(unregistered made by some GPA holder of D-157). The orders of the
learned Single Judge in Application Nos.469 and 470 of 1996, dated
26.08.1996 do not in any manner entitle the applicants for claiming a
final decree. Where there is no final decree in favour of the assignors
of the applicants, the question of an assignee getting final decree that
too under unregistered deed of assignment, does not arise. As such
the applications are liable to be dismissed.
46. Thereafter, the applicants filed I.A. No.1 of 2024 in
Application No.450 of 2007 seeking permission to withdraw the
Application No.450 of 2007 with liberty to the applicants to institute a
fresh suit, application, proceeding or action in law and this Court on
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31.07.2024 allowed the I.A. No.1 of 2024 and Application No.450 of
2007 was dismissed as withdrawn in terms of the liberty as prayed
for, vide separate order.
APPLICANTS CASE:
47. For the sake of convenience, facts submitted in all these
applications are that the claim petitioners herein are claiming to be
the owners of several plots forming part of layout permit
No.47IMP2/HUDA/1998 dated 29.09.2001, developed as Diamond
Hills in Sy.No.14 situated at Hydernagar village, Kukatpally
Municipality, Balanagar Mandal, Rangareddy District.
48. The contentions of the petitioners are that since the date of
purchase of their respective plots, the claim petitioners are in actual,
physical and vacant possession of the plots. It is further submitted
that the vendors of the claim petitioners developed the layout in an
extent of Acs.9.27 guntas in Sy.No.145 of Hydernagar village by
providing all amenities and infrastructure like roads, water, drainage
connection, foot path and common amenities like park, street lights
etc., as per HUDA regulations in accordance with the sanctioned
layout.
49. As regards the Sy.No.145, it is submitted that the entire land in
Sy.No.145 is consisting of a total extent of Acs.220 situated at
Hydernagar village and was formerly the property of Khursheed Jah
Paigh and the said lands were converted in Sanad, in view of the
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acquisition of their private properties situated at Thimmaipally village
for the purpose of laying railway track. The legal heirs of Khursheed
Jah Paigh filed suit in O.S. No.41 of 1955 on the file of the City Civil
Court, Hyderabad, for partition and separate possession of private
properties belonging to late Khursheed Jah Paigh and subsequently
the said suit was transferred to the High Court and renumbered as
C.S. No.14 of 1958, wherein a preliminary decree was passed on
28.06.1963 and so far no final decrees have been passed.
50. It is further submitted that the H.E.H. Nizam during his life
time, sold away his rights and interest acquired from the share
holders of Paigh in respect of the property in C.S. No.14 of 1958 under
preliminary decree dated 28.06.1963 in favour of M/s. Cyrus
Investments Private Limited wherein the said M/s. Cyrus Investments
Private Limited became a party to the said C.S. No.14 of 1958 by
impleading itself as defendant No.206 as per the orders passed in
application No.82 of 1967.
51. Subsequently, after the preliminary decree was passed, a
Receiver-cum-Commissioner was appointed for partition for allotting
the shares to the respective shareholders and by the time the said
Commissioner-cum-Receiver visited to the immovable properties,
the said Receiver found that some of the tenants were in possession
and enjoyment of the properties which are more fully shown in Item
No.IV of the Schedule 38 of properties described in C.S. No.14 of
1958. While so, the Commissioner filed an application before the High
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Court vide I.A. No.73 of 1970 wherein the High Court permitted the
Commissioner to resolve the dispute between the landlords i.e. the
shareholders and the tenants who are in actual physical possession
and enjoyment of the land bearing sy.No.145 and other survey
numbers.
52. It is further submitted that the tenants being in possession and
enjoyment of the property, the dispute was resolved and settled at the
ratio of 50:50 share i.e. the 50% of the land to the shareholders from
the land allotted to them as per the preliminary decree and 50% of the
land to the possessors i.e. the tenants from the land has fallen to the
share of the shareholders, for various reasons and the said tenants
were in actual physical possession and enjoyment of the property who
had later sold away the property to the claim petitioners who thereby
derived their flow of titles from the said tenants.
53. It is also submitted that the respondents No.1 to 15 who
claimed rights under an assignment deed, having knowledge that the
assignors are not having any right, title or interest or possession in
and over the subject property and that it is the vendors of the claim
petitioners being the tenants in possession of the property,
suppressing the said fact and without making them as parties to the
above said applications obtained orders in collusion with each other
and approached the District Judge, Ranga Reddy District, by filing an
Execution Petition to take delivery of property illegally and high
handedly in order to legalise the illegal acts of the so called decree
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holders and their vendors. It is submitted that the vendors of the
claim petitioners with a view to protect the rights of the purchasers
and to pass on a better title and having noticed the illegal acts of the
respondents No.1 to 15/decree holders filed application before the
High Court vide application Nos.950/98, 951/98, 952/98, 954/98
and 955/98 wherein the learned Single Judge has passed an order
dated 26.03.1999, which reads as under:
"However, it is made clear that this order
shall not preclude the petitioner from seeking
appropriate relief before the competent forum by
establishing their rights or interest in the property
as are available to them under law and any
observations made or findings rendered in this
order with regard to the alleged right or interest of
the petitioners shall not be taken note of by the
adjudicating body considering the claim of the
petitioners in the near future. No costs."
54. As regards the jurisdiction, it is submitted that the High Court
has the jurisdiction to entertain the claim petitions and objections
raised by the parties to protect their rights, title and interest. But in
view of the said orders passed by the learned Single Judge, the
vendors of the claim petitioners preferred appeals before the Division
Bench vide OSA. No.8 of 1999 SR. No.29734, 30135, 30137, 30155,
30793 and 30795 of 1999 wherein the Division Bench has passed the
following order:
"Learned counsel for the parties agree that the
appellants would not be physically dispossessed
from the demised land in execution of a decree
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passed in favour of the respondents in the
eventuality of the appellants being the physical
possession of the disputed property, which fact
will be determined by the appropriate court
executing the decree. We have no doubt that if
any objections are raised the same will be
considered and disposed of expeditiously while
determining any question or objection on merits,
on any observations made in the interlocutory
order would not be taken note of by the court".
55. It is further submitted that in view of the categorical orders
passed by the Single Judge and also by the Division Bench of the High
Court of A.P., the vendors of the claim petitioners who are tenants in
actual physical possession and enjoyment of the subject property
preferred to file a claim petition vide E.A. No. 27 of 2000 as the High
Court did not specify that the High Court itself is having any
jurisdiction to entertain the claim petition. On the other hand, the
learned Single Judge specifically directed the claim petitioners to
approach "COMPETENT FORUM" while the Division Bench made it
clear that the issue will be determined by the "APPROPRIATE COURT
EXECTUING THE DECREE" which means that the District Court
Rangareddy District is Executing the decree as execution was being
done through the District Judge, Rangareddy District only. Therefore,
the claim petition was filed before the District Judge, Rangareddy
District in view of the order of the Division Bench of this Court. The
claim petition filed by the vendors of the claim petitioner was
numbered as E.A. No.27 of 2000 wherein the decree holders and their
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vendors who are the judgment debtors in E.P. No.26 of 2000 filed their
counter, and issues were framed. Meanwhile, to prove that the so
called vendors of the decree holders are not having any right, title and
interest as they sold away their rights in respect of remaining
4 acres, an application was filed vide E.A. No.67 of 2001, to implead
the purchaser as a party. While the said application was coming for
hearing, the then learned District Judge, dismissed the claim petition
by an order dated 27.10.2002. Subsequenlty, E.A. No.74 of 2002 was
filed to review the order passed in E.A. No.27 of 2000 dated
27.10.2002 but the same was also dismissed on 19.10.2006. The
District Judge held that the claim petition was not maintainable as it
was not executing Court and that the High Court is the Executing
Court.
56. It is further submitted that the orders as passed by the District
Judge are contrary to the directions given by the Single Bench in
application No.950, 951, 952, 953, 954, 955 of 1998 and also against
the orders of the Division Bench passed in O.S.A. No.8 of 1999 and
other appeals and in those circumstances a revision was preferred
vide CRP. No.6459 of 2006 and 6611 of 2006, wherein the learned
Single Judge passed an order and at para 11 held as under:
"In view thereof, if the petitioners are aggrieved by
the order of this Court directing implementation of
the decree, they should have filed petition in this
Court, which is the executing Court but not the
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District Court, which is only implementing the
order of this Court to deliver possession."
57. It is submitted by the claim petitioners that this Court itself is
having jurisdiction to entertain the claim petitions and that the
respondents No.1 to 15 in collusion with respondents No.17 and 18
got advanced the EP proceedings and have taken warrant for delivery
of possession behind their back, having knowledge that the claim
petitioners and others are in actual physical possession and
enjoyment of the part of the property claimed by the respondents No.1
to 15. It is further submitted that when the Court Bailiff came to the
site on 14.03.2007, he made an endorsement on the warrant that
there are structures in existence including a mosque. He also noted
that the land is not an open agricultural land and on the other hand it
has been converted into residential plots, roads are laid, development
has taken place. While so, again behind back of the real persons in
possession of the property, respondents No.1 to 15 in collusion with
the Court Bailiff brought into existence of delivery of possession and a
panchanama dated 02.04.2007 alleged to have been made at about
8.10 am., and therefore, the warrant of delivery of possession is illegal
and void in view of the judgment of this Court reported in IDPL
Employees CO-Operative Housing Building Society Limited,
Hyderabad and another Vs. B. Rama Devi and Others (2004 (5) ALD
632) wherein it was held that recovery of possession of properties from
third parties who are not parties to the suit is beyond the scope of
partition suit. The ownership of the parties to the suit as against
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third parties is not decided in a partition suit. So a decree in a
partition suit will not confer any declaration of title on the parties on
the suit as against the third parties. The decree in a partition suit
cannot be equated to that of a decree for recovery of possession of
immovable property. Moreover, the alleged assignment deed is
unregistered and any order passed on the basis of such assignment
deed is void ab initio. A deed of assignment of a decree attracts
Section 17 of Indian Registration Act and same was the view of this
Court in several orders in C.S. No.14 of 1958. The alleged deed of
assignment is also contrary to the provisions of the Transfer of
Property Act, Urban Land Ceiling Act and Stamp Act. Therefore, the
recognition of assignment deed allegedly made in favour of
respondents No.1 to 15 and consequently the decree passed in
application No.470 of 1996 are a nullity.
58. It is further submitted that the alleged possession is claimed to
have been handed over to the respondents No.1 to 15 by the Court
Bailiff without conducting any survey and without taking help of
official surveyor, the identification of land without the help of official
surveyor is impossible as the land did not have any boundaries and
tippons were not available. The alleged possession being claimed by
the respondents No.1 to 15 in the guise of panchanama and Bailiff's
report dated 02.04.2007 is illegal and the possession of the
respondents No.1 to 15 cannot be held to be in legal possession. It is
further submitted that this Court by order dated 27.02.2007 held that
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this Court is Executing Court and as such, the claim petition is filed
before this Court as an appropriate Court as it is deemed to be the
Executing Court being the decreetal Court. As such, the above
applications have been filed before this Court for declaration that the
claim petitioners are entitled to be declared as the absolute owners
and possessors of the schedule properties by setting aside the Bailiff
report and panchanama dated 02.04.2007; alternatively deliver
actual, physical possession of schedule properties in the event if this
Court comes to the conclusion that as per the Baillif's report dated
02.04.2007 the claim petitioners have lost their possession.
Questioning the same, the present applications have been filed.
RESPONDENTS CASE:
59. On behalf of the respondents, while denying the submissions
made by the claim petitioners, inter alia, it is submitted that M/s.
B.Shankaraiah and others represented by GPA holder Mr. B.Dashrath
and M.Ravinder had any semblance of right title of the interest over
any part of survey No.145 much less Sy.No.145/3 which is the
property of the respondents No.1 to 15. The possession of the
properties in Survey No.145/3 were handed over to the respondents
No.1 to 15 by the Bailiff of the Principal District Judge, Ranga Reddy
District on 02.04.2007. A proper panchanama was drawn up and the
Bailiff executed the orders of the Court by following due process of law
as such the said action is legal and that the respondents No.1 to 15
are in full and absolute control and possession of the said property.
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It is further submitted that the respondents No.1 to 15 have filed
application for delivery of possession of Acs.7.00 of land but this does
not include the petition schedule property of this claim petitioners and
that the possession has been delivered on the basis of the deed of
assignment executed by the late Khazim Nawaz Jung in their favour
and recognized by the High Court of Andhra Pradesh in proceedings in
Application Nos.469 and 470 of 1996.
60. The genesis of the proceedings leading to the present
applications shorn of to unnecessary details is stated hereunder:
61. The subject property i.e. Sy.No.145 was originally formed part of
item No.38 of Schedule IV of the plaint schedule property and
subsequently carried in preliminary decree dated 28.06.1963. Since
the items have to be partitioned as per the preliminary decree, some
persons, who were claiming assignment to the partition in which the
Receiver-cum-Commissioner has made an application No.107 of 1970
seeking permission of this Court to enter into a compromise stating
that the land in Sy.No.145 was being acquired by the Housing Board
under the Land Acquisition Act and the respondents No.101 to 117 in
the said application who are the petitioners in this batch of
applications have approached the Land Acquisition Officer, staking
claim on the ground that they were in possession of the land whereby
this Court vide order dated 14.06.1971 granted permission to the
Receiver-cum-Commissioner and thereafter, the permission, which
was granted in the year 1971 was again reiterated in the year 1975.
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After common orders were passed, no compromise was affected.
However certain suits have been filed by the petitioners claiming some
of the property in Sy.No.145 and some of them have appeared to be
compromised.
62. It is further submitted that the vendors, who had filed E.A.
No.27 of 2000 in E.P. No.26 of 2000 was dismissed by an order of the
Principal District Judge, Ranga Reddy District by order dated
27.09.2002. Subsequently, a review petition is also filed, which was
also dismissed. Thereafter, the matter was carried in revision to the
High Court and this Court by order dated 27.02.2007 was pleased to
dismiss the CRP., as such, the predecessors in interest of the claim
petitioner, who are none other than their vendors lost a series of
litigation and are raising bogus and untenable claim. The
respondents are also disputing that there are no tenants, who do not
have any tenancy registers under the Jaghir administration,
Hyderabad State or its successors in Governance being the State of
Andhra Pradesh, and that in the revenue records there was no
subsequent tenancy or any form of legally recognized possession in
any part of the Sy.No.145 and that the claim petitioners are only
successors in interest and tenants cannot claim any semblance of
rights of ownership over any part of the land and at best a tenant can
only convey a limited interest of tenancy and thus the claim
petitioners right, title on interest cannot be greater than the right title
or interest of the original predecessors in title.
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63. It is submitted that earlier these matters underwent three
rounds of litigations and in the meantime, the possession of the land
in question was delivered to the respondents by an order of the
District Judge Ranga Reddy on 02.04.2007. It is further submitted
that the respondents are questioning the very maintainability of these
applications by applying the principle of Doctrine of res judicata in
view of the pronouncements of the Court in the same matters against
the predecessors in title of the petitioners. It is reiterated that in the
years 2000 and 2001, the predecessor in interest of the petitioners
who are the unsuccessful litigants created a series of false sale deeds
in favour of number of persons, to defeat any eventual order of the
Court pendente lite of the proceedings before the various Court. It is
those persons who are before the Court now who are none others than
successors in interest of the unsuccessful litigants in the Courts over
the years in the new incarnation of claim petitioners and as such the
respondents are questioning the very maintainability of these
applications.
ORDERS PASSED IN APPLICATIONS No.469 & 470 of 1996:
64. In the material papers filed in this batch of applications, copy of
the order dated 26.08.1996 is filed by the respondents vide
Application No.469 of 1996 as the petitioners/assignees in those
Applications were seeking to modify the order passed in Application
No.31 of 1982 dated 08.07.1983 by substituting the names of the
petitioners and to direct the delivery of possession to the petitioners to
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an extent of 7 acres in Sy.No.145 of Hydernagar village, Balanagar
Mandal, Ranga Reddy district by issue of a warrant of possession
executable by the Court of District Judge, Ranga Reddy District and
the order interlocutory proceedings therein. This Court vide its order
dated 26.08.1996 passed the following order:
"It is ordered that the order passed in Application
No.31/1982 dated 8.7.1983 shall be modified by
substituting the names of the petitioners herein
and that the possession for land to an extent of 7
acres is Sy.No.145 of Hydernagar village
Balanagar mandal, Ranga Reddy District shall be
delivered to the petitioners and that a warrant of
possession executable by the court of District
Judge, Ranga Reddy District and the order of
interlocutory proceedings therein shall be issued."
Similarly, an Application No.470 of 1996 in Civil Suit No.14 of 1958
was filed seeking to recognize the assignment of the rights of the
petitioner in respect of land measuring Ac.7.00 dry agricultural land
covered by Sy.No.145 situated at Hydernagar village, Balanagar
Mandal, R.R. District (Part of Item No.38, Schedule IV of the
preliminary decree in C.S. No.14/58 dated 28.06.1963 and the other
interlocutory proceedings therein. This Court vide order dated
26.08.1996 "ORDERED" the said application.
65. It is submitted at that relevant point of time when the orders
were passed in Applications No.469 and 470 of 1996 in C.S. No.14 of
1958, there was no Commissioner-cum-Receiver. It is further
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submitted that the purchasers from the sold sharers i.e., Kazim
Nawaz Jung and Cyrus Investment have assigned their right in favour
of several people by way of assignments and their assignments were
recognized by this Court and possession was also delivered by virtue
of orders of this Court through District Court under panchanama.
It is further submitted that most of the assignees were shown as party
in the final decree proceedings as they were already impleaded as
parties in the suit.
66. It is submitted that this Court while hearing one of the matters
on 30.04.2007 was pleased to issue an order of status quo until
01.05.2007. Thereafter, after extensive arguments, was pleased to
stay all further proceedings in E.P. No.26 of 2000 on the file of the
Principal District Judge, Ranga Reddy District and directed that the
nature of the land should not be changed by the respondent. Finally,
it is prayed to vacate the order of interim stay of all further
proceedings in E.P. No.26 of 2000 on the file of the Principal District
Judge, Ranga Reddy District and modify and annul its orders of
temporary injunction not to change the nature of the land in the
possession controlled and enjoyment of the respondents.
67. It is noted that the comprehensive counter has been filed in
application Nos.361, 362 and 363 of 2007 in C.S. No.14 of 1958.
For the purpose of disposing of these applications, only Application
No.361 of 2007 has been taken for hearing and the Applications
No.362 and 363 of 2007 are not before this Court for consideration.
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The averments made in the said comprehensive counter are
considered for the present applications.
SUBMISSIONS OF APPLICANTS:
68. Mr. Vedula Venkataramana, learned Senior Counsel for the
applicants has made the following submissions:
- That the purchasers of the plot have not purchased the
property from any of the parties to the civil suit and they claim
independent title to the property. Therefore, principles of neither res
judicata nor estoppel would apply.
- That in a partition suit what is executable is a final decree and
in the absence of final decree, the possession is taken first and
thereafter an application was filed vide Application No.450 of 2007
seeking to pass final decree, which is completely a reversal procedure
and the same is unknown to law.
- That only a final decree can be executed and not a preliminary
decree.
- That the identity of the purchasers of the plot is not in
dispute.
- That the purchasers of the plot have been dispossessed
without a final decree in C.S.No.14 of 1958.
- That since the factum of dispossession of the purchasers of
the plot in execution of preliminary decree passed in C.S.No.14 of
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1958 is admitted, evidence is not required to be recorded in the
peculiar facts of the case.
- That the respondents, who have obtained possession, are
neither holders of preliminary decree nor holders of final decree.
- That the purchasers of the plot have been dispossessed
fraudulently in a proceeding to which the other parties in the civil
court were not impleaded except the assignor of the respondents.
- That in the earlier reports of the Commissioner-cum-Receiver,
there is no mention about the parties being recognised by the Court
orders as such, the claim is unsustainable.
- That the assignees of preliminary decree-holders cannot be fit
into and be recognised as a decree-holder and that no assignor has
come forward and filed applications for passing of a final decree and
the assignors alone have been shown as judgment debtors.
- That an unregistered deed of assignment is inadmissible in
evidence and under Section 49 of the Registration Act, 1908, it can be
looked into only for collateral purposes and such an unregistered deed
of assignment shall be registered within a period of four months.
- That the defect of non-registration of a deed of assignment
cannot be cured by its subsequent registration.
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- That the validation of an unregistered deed of assignment is
not possible under Section 42 of the Indian Stamp Act, 1899.
- That an order obtained by playing fraud is ab initio void and
its validity can be assailed at any stage and at any time and the
provisions of the Limitation Act, 1963, do not apply where an order is
a nullity.
- That application No.450 of 2007 for passing a final decree
should be decided first, as in case the aforesaid application is
dismissed, the respondents, who are neither preliminary decree
holders nor decree holders, would have no right to retain the
possession of plot.
69. In support of the aforesaid submissions, reliance has been
placed on the following decisions:
i) N.S.S.Narayana Sarma v. Goldstone Exports (P) Ltd. ((2002)
1 SCC 662).
ii) Hasham Abbas Sayyad v. Usman Abbas Sayyad ((2007) 2 SCC
355).
iii) A.V.Papayya Sastry v. Government of Andhra Pradesh ((2007) 4
SCC 221).
iv) M/s. Trinity Infraventures Limited v. M.S.Murthy (2023 INSC
581 : 2023 SCC OnLine 738).
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- It is also contended that the claim for declaration of title is
given up and the prayer is confined only to restoration of possession.
Submissions on behalf of the respondents:
70. - That the claim petitions except claim petition Nos.2483, 2484,
2485 of 2007; 2583, 2584 and 2585 of 2007; and claim petition
Nos.2459, 2550 and 2551 of 2007 are within limitation and the
remaining Claim Petition Nos.2807, 2808, 2809, 2842, 2843 2844,
3431, 3432, 3433, 3583, 3584, 3585, 4238, 4240, 4243, of 2007 and
4543 of 2008 are barred by limitation as they have been filed beyond
the period of thirty days from the date of dispossession i.e.,
02.04.2007.
- That the claim petitions are hit by res judicata, as the issue
raised herein has been tried five times before the Court and thrice by
a Single Judge and twice by a Division Bench.
- That the estoppel by deed against the predecessors-in-interest
of the claim petitioners binds them as well.
- That the defect of unregistered assignment deed can be cured
by subsequent registration or confirmation of the deed.
- That the delivery of possession under Section 54 of the Code of
Civil Procedure, 1908, in case of an open land is permissible before
final decree.
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71. In support of the aforesaid submissions, reliance has been
placed on the following decisions:
(Babulal Badriprasad Varma v. Surat Municipal Corporation
((2008) 12 SCC 401);
Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria
Prabhu Navelkar ((2020) 20 SCC 465).
Mitchell v. Mathuradas (130 I.A. (1884-85) 150);
Jamnabai v. Dharsey ((1902) 4 Bom.L.R.893);
Hamda Ammal v. Avadiappa Pathar ((1991) 1 SCC 715);
Official Trustee of West Bengal v. Stephen Court Ltd. ((2006) 13
SCC 401)).
D.M.Jacinto v. J.D.B.Fernandez (AIR 1939 Bom. 454);
Vishnu Janardan Salvekar v. Mahadev Keshav Kshirsagar (AIR
(29) 1942 Bombay 44);
Ramabai Govind v. Anant Daji (AIR (32) 1945 Bombay 338);
Ningappa v. Abashkhan (AIR 1956 Bom. 345);
Prabhu Dayal v. Sub-Divisional Officer (AIR 1958 Allahabad 673;
Narasu v. Narayan (AIR 1959 Mysore 233;
Smt. Menka Bai v. Manohar (AIR 1971 Bombay 21;
Bhagwansingh v. Babu Shiv Prasad (AIR 1974 Madhya Pradesh
12);
Sanjay Dinkar Asarkar v. State of Maharashtra ((1986) 1 SCC 83);
Smt. Ramrathibai v. Surajpal (AIR 1995 Bombay 445);
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Annasaheb Rajaram Nagane v. Rajaram Maruti Nagane (AIR 2001
Bombay 303);
Khurshed Banoo v. Basant Mallikarjun Manthalkar (AIR 2003
Bombay 52).
72. The issues fell for consideration in Applications No.361 of 2007
and batch as follows:
1. whether the recognition of an assignment vide unregistered
deed of assignment entitles the respondents/applicants to
seek a final decree?
2. Whether the Applicants who are not parties to the
Application No.469 of 1996 and Application No.470 of 1996
are bound by the orders dated 26.08.1996 passed by this
Court?
3. Whether the order passed in E.P. No.26 of 2000 by the
Principal District Judge, Ranga Reddy District at L.B. Nagar,
Hyderabad, vide order dated 28.03.2007 directing the Bailiff
of the Court, Ranga Reddy District Court, L.B. Nagar, to put
the decree holders in possession in 'as is where is condition'
is in accordance with law?
4. To what relief?
OBSERVATIONS / ANALYSIS AND CONCLUSION:
73. The purchasers of various plots situated on land bearing Survey
No.145/3 measuring Acs.7.00 situated at Hydernagar Village,
Balanagar Mandal, Ranga Reddy District, have filed these applications
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under Order XXI Rule 99 of the Code of Civil Procedure, 1908.
Their grievance is that they have been illegally dispossessed on
02.04.2007 by the Bailiff of the Court of IV Additional District and
Sessions Judge, Ranga Reddy District, vide Execution Petition No.26
of 2000. The applicants in the above applications are the third
parties/purchasers having purchased the house plots under
registered sale deeds which are concerning land in Sy.No.145/3 and
that they have independent and superior title to the plots in
Sy.No.145/3 in the form of registered sale deeds executed by the
persons having flow of title.
74. On the basis of the orders passed in the Application No.469 of
1996 the respondents have filed E.P. No.26 of 2000 before the
Principal District Judge, R.R. District, for issuance of warrant of
delivery of possession and that in the said E.P. No.26 of 2000 none of
the claim petitioners were shown as respondents.
75. These applicants are the claim petitioners and are the third
parties to C.S. No.14 of 58 filed Order XXI Rule 97 and Order XXI Rule
99 CPC seeking invalidation of the orders passed in E.P. No.26 of
2000 which has been filed in the District Court R.R.District for
execution of the application No.470 of 1996 in C.S. No.14 of 1958 on
26.08.1996 by which the Commissioner-cum-Receiver was directed to
deliver the physical possession of the Ac.7-00 of land in Sy.No.145/3
of Hydernagar village, Balanagar Mandal, i.e. Item No.38 in Schedule
IV of C.S.No.14 of 1958, Ranga Reddy District, in which defendant
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Nos.334 and 335 (LRs of Defendant No.157) were shown as
respondents/Assignors. The applicants submit that even before a
final decree was passed in favour of the defendant 157 (D-334 and
D-335 being LRs) i.e. GPA holder of D-157 appears to have executed
an unregistered deed of assignment of decretal rights dated
06.05.1996 in respect of the subject lands.
76. The main relief sought for in these applications is that under
Order XXI Rule 99 CPC, a person who has been wrongfully
dispossessed in execution of decree to which they are not a party shall
be granted a relief of redelivery of possession and restoration of the
possession and that under Order XXI Rule 101, the Executing Court
will decide as to whether any unregistered assignees have any legal
right to seek recovery of possession when there is no decree in their
favour and whether the dispossessed applicants are entitled to
redelivery of possession?
77. The petitioners pray that the claim petitions deserves to be
allowed directing the Commissioner-cum-Receiver to ensure that the
claim of the petitioners /plot purchasers restored / redelivered by
declaring the very institution of E.P. 26 of 2000 as fraud on the Court
and that the claim petitions deserve to be allowed even without
requirement of recording the oral and documentary evidence.
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78. In the counter filed by the respondents, at para 7, it is
submitted that some persons claimed to be tenants were resisting the
partition, the Receiver-cum-Commissioner, made an application
No.107 of 1970 seeking permission of the Court to enter into a
compromise stating that the land in Sy.No.145 was being acquired by
the Housing Board under the Land Acquisition Act and the
respondents No.101 to 117 in the said application who are the
petitioners in this batch of applicants have approached the Land
Acquisition Officer, staking claim on the ground that they were in
possession of the land. Therefore, in order to settle the matter
amicably the Receiver-cum-Commissioner, had filed the said
application seeking permission of the Court to enter into the
compromise. Wherein, this Court passed order granting permission to
the Receiver-cum-Commissioner. However, though permission was
granted thereafter no compromise was effected. It is also submitted
that certain suits were filed by the petitioners claiming some property
in Sy.No.145 of Hydernagar village and some of them appears to have
been compromised. In view of the submissions made at para 7 and 8
of the counter, since no compromise arrived among the parties therein
it is submitted that the petitioners/claimants were in possession of
the lands.
79. The learned Senior Counsel Sri Vedula Venkatramana placed
reliance on the reported in the case of N.S.S. Narayana Sarma and
others Vs. Goldstone Exports (P) LTD. And others (2002) 1
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Supreme Court Cases 662, wherein the Hon'ble Supreme Court held
that the aim of enacting Rule 101 in Order XXI CPC is to remove
technical objections to applications filed by aggrieved party as to
whether he is the decree-holder or any other person in possession?
Provision is made in the Civil Procedure Code for delivery of
possession of immovable property in execution of a decree and
matters relating thereto. Order XXI Rule 35 provisions are made
empowering the executing Court to deliver possession of the property
to the decree-holder if necessary, by removing any person bound by
the decree who refuses to vacate the property. From the provisions in
these Rules, the scheme is clear that the legislature has vested wide
powers in the executing Court to deal with "all issues" relating to such
matters. Relevant paras No.15 and 19 are extracted hereunder:
15. Provision is made in the Civil Procedure Code
for delivery of possession of immovable property in
execution of a decree and matters relating thereto.
In Order 21 Rule 35 provisions are made
empowering the executing court to deliver
possession of the property to the decree-holder if
necessary, by removing any person bound by the
decree who refuses to vacate the property. In Rule
36 provision is made for delivery of formal or
symbolical possession of the property in
occupancy of a tenant or other person entitled to
occupy the same and not bound by the decree to
relinquish such occupancy. Rules 97 to 101 of
Order 21 contain the provisions enabling the
executing court to deal with a situation when a
decree-holder entitled to possession of the
property encounters obstruction from "any
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person". From the provisions in these Rules which
have been quoted earlier the scheme is clear that
the legislature has vested wide powers in the
executing court to deal with "all issues" relating to
such matters. It is a general impression prevailing
amongst the litigant public that difficulties of a
litigant are by no means over on his getting a
decree for immovable property in his favour.
Indeed, his difficulties in real and practical sense,
arise after getting the decree. Presumably, to
tackle such a situation and to allay the
apprehension in the minds of litigant public that it
takes years and years for the decree-holder to
enjoy fruits of the decree, the legislature made
drastic amendments in provisions in the
aforementioned Rules, particularly, the provision
in Rule 101 in which it is categorically declared
that 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. On a fair reading of the Rule it is
manifest that the legislature has enacted the
provision with a view to remove, as far as possible,
technical objections to an application filed by the
aggrieved party whether he is the decree-holder or
any other person in possession of the immovable
property under execution and has vested the
power in the executing court to deal with all
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questions arising in the matter irrespective of
whether the court otherwise has jurisdiction to
entertain a dispute of the nature. This clear
statutory mandate and the object and purpose of
the provisions should not be lost sight of by the
courts seized of an execution proceeding. The
court cannot shirk its responsibility by skirting
the relevant issues arising in the case.
19. From the principles laid down in the decisions
noted above, the position is manifest that when
any person claiming title to the property in his
possession obstructs the attempt by the decree-
holder to dispossess him from the said property
the executing court is competent to consider all
questions raised by the persons offering
obstruction against execution of the decree and
pass appropriate order which under the provisions
of Order 21 Rule 103 is to be treated as a decree.
From the averments made in the petition filed by
the appellants before the executing court it is clear
that they are claiming independent right to the
property from which they are sought to be evicted
in execution of the decree. It is the further case of
the appellants that the right in the property had
vested in them much prior to filing of the present
suit the decree of which is under execution. It is to
be kept in mind that the suit as initially filed was
a suit for partition simpliciter. In such a suit the
High Court in course of execution proceedings
ordered delivery of possession. Whether such a
direction given in the suit is valid or not is a
separate matter. We need not say anything more
on the question at present. As noted earlier, the
learned Single Judge and the Division Bench
dismissed the petition filed by the appellants as
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non-maintainable without entering into the merits
of the case. The Division Bench appears to have
taken the view that since the appellants are
claiming the property through the Pygah
Committee or the State Government, who are
parties in the suit, they are bound by the decree.
The view taken by the Division Bench is
unsustainable and does not at all stand scrutiny
under law. It amounts to, if we may put it that
way, begging the question raised in the petition
filed by the appellants. At the cost of repetition, it
may be stated here that the appellants are
claiming independent title to the property as the
transferees from the pattadars whose land did not
vest in the State Government under the provisions
of the Andhra Pradesh (Telangana Area) Abolition
of Jagirdar Regulation Act, 1958. On a perusal of
the orders passed by the Single Judge as well as
Division Bench of the High Court, we are
constrained to observe that the said orders are
based on a complete misreading of the case of the
appellants and misconception of the legal position
relevant to the matter. Considering the facts and
circumstances of the case, we are of the view that
the matter should be remitted to the High Court
for fresh consideration of the petitions filed by the
appellants by a Single Judge at the first instance."
80. The subject property in issue is part and parcel of properties
described for partition in C.S. No.14 of 1958. A preliminary decree
was passed by this Court on 28.06.1963 and so far no final decree is
passed. A single Judge of this Court vide order dated 26.08.1996 in
Appliction No.469 of 1996 directed delivery of possession of the
subject land and in Application No.470 of 1996 in C.S. No.14 of 1958
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vide order dated 26.08.1996 recognised the assignment rights of the
petitioners in respect of the subject lands described as part of Item
No.38, Schedule IV of the preliminary decree in C.S. No.14 of 1958
dated 28.06.1963. It is pertinent to note that the petitioners were
Assignees and the respondents therein were arrayed as Assignors.
It is noteworthy that the scope of enquiry of this Court is now only to
pass final decree. It is also to be noted that neither the applicants nor
the respondents in the present applications are the parties in the
preliminary decree and whereas the parties in the preliminary decree
are not before this Court and at the relevant point of time, when the
orders were passed in Applications No.469 and 470 of 1996, dated
26.08.1996 no Commissioner-cum-Receiver was available to take
custody of the subject lands.
81. In M/s. Trinity Infraventures Ltd., & Others etc., Vs. M.S.
Murthy & Others etc., (2023) SCC OnLine SC 738), the Hon'ble
Supreme Court held at para 195 as under:
"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
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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 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."
82. In A.V. Papayya Sastry and others Vs. Govt. of A.P. and
others (2007) 4 Supreme Court Cases 221, the Hon'ble Supreme
Court held that fraud vitiates all judicial acts whether in rem or in
personam - judgment, decree or order obtained by fraud has to be
treated as non est and nullity, whether by Court of first instance or by
the final court - it can be challenged in any court, any time, in appeal,
revision, writ or even in collateral proceedings - this is an exception to
Article 141 of the Constitution of India.
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83. In Shreenath and another Vs. Rajesh and others (AIR 1998
SUPREME COURT 1827, it was held that a third party in possession
of a property claiming independent right as a tenant not party to a
decree for possession of immovable property under execution, could
resist such decree by seeking adjudication of his objections under
Order XXI Rule 97 CPC.
84. In Mani Nariman Daruwala and others Vs. Phiroz M.Bhatena
and others (AIR 1991 BOMBAY 328), it was held that Order XXI Rule
97 and 101 CPC - Obstructionist unable to establish independent
right to possession, can still resist execution on ground that decree
under execution is nullity. Relevant para No.12 is extracted
hereunder:
"12. In my view, the phrase "holder of a decree for
possession" which is contemplated under the
above Rule postulates that he has to be a holder of
valid decree for possession. The said phrase
cannot include a person who is a holder of a
decree which is a nullity. Nullity is not a decree at
all. Hence, before a decree holder can call upon a
Court to hear his complaint in regard to the
obstruction to the execution of his decree by a
person who has no independent right to
possession, he has first to qualify having the
status of being the holder of a valid decree for
possession. If he holds a decree which is a nullity
in law, he cannot be termed as a holder of a valid
decree for possession. If he holds a decree which
is a nullity in law, he cannot be termed as a
holder of a decree which is capable of being put in
execution. It follows that an obstructionist can
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always contend that the decree under execution is
a nullity and, therefore, the Courts are refrained
from entertaining an application for removal of the
obstruction. Once such a contention is raised, it
will be for the decree holder to establish that the
decree which he has put in execution is a valid
decree and the same is capable of being executed.
In my view, such above contention can be raised
by an obstructionist even if he fails to establish
that he has an independent right to possession.
The holding of a valid decree is a sine qua non for
initiation of proceedings under Rules 97 to 101
of Order XXI of the Code of Civil Procedure. If the
decree under execution is a nullity, the decree
holder will not be heard to say that the
obstructionist is illegally resisting its execution."
85. The Hon'ble Supreme Court in the case of Silverline Forum
Pvt. Ltd., Vs. Rajiv Trust and another, (1998 (3) SCC 723) held at
paras No.11, 12 and 14 as under:
"11. When a decree-holder complains of
resistance to the execution of a decree it is
incumbent on the execution court to adjudicate
upon it. But while making adjudication, the court
is obliged to determine only such question as may
be arising between the parties to a proceeding on
such complaint and that such questions must be
relevant to the adjudication of the complaint.
12. The words "all questions arising between
the parties to a proceeding on an application
under Rule 97" would envelop only such questions
as would legally arise for determination between
those parties. In other words, the court is not
obliged to determine a question merely because
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the resister raised it. The questions which the
executing court is obliged to determine under Rule
101, must possess two adjuncts. First is that such
questions should have legally arisen between the
parties, and the second is, such questions must
be relevant for consideration and determination
between the parties, e.g., if the obstructor admits
that he is a transferee pendente lite it is not
necessary to determine a question raised by him
that he was unaware of the litigation when he
purchased the property. Similarly, a third party,
who questions the validity of a transfer made by a
decree-holder to an assignee, cannot claim that
the question regarding its validity should be
decided during execution proceedings. Hence, it is
necessary that the questions raised by the resister
or the obstructor must legally arise between him
and the decree-holder. In the adjudication process
envisaged in Order 21 Rule 97(2) of the Code, the
execution court can decide whether the question
raised by a resister or obstructor legally arises
between the parties. An answer to the said
question also would be the result of the
adjudication contemplated in the sub-section.
14. It is clear that the executing court can
decide whether the resister or obstructor is a
person bound by the decree and he refuses to
vacate the property. That question also squarely
falls within the adjudicatory process contemplated
in Order 21 Rule 97(2) of the Code. The
adjudication mentioned therein need not
necessarily involve a detailed enquiry or collection
of evidence. The court can make the adjudication
on admitted facts or even on the averments made
by the resister. Of course the court can direct the
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parties to adduce evidence for such determination
if the court deems it necessary."
86. On a perusal of the order dated 28.03.2007 passed in
E.P. No.26 of 2000 in Application No.470 of 1996 in C.S. No.14 of
1958 on the file of the High Court of Andhra Pradesh, Hyderabad,
under Order XXI Rule 35 CPC directed that "WHEREAS the under
mentioned schedule property in the occupancy of Judgment debtors has
been decreed in favour of the Decree Holders, you are hereby directed
to put the said Decree Holders in possession of the same, in 'as is
where is condition' and you are also hereby authorised to remove any
person bound by the Decree who may refuse to vacate the same." It is
to be noted that in Application No.469 and 470 of 1996 neither the
petitioners/claimants nor Receiver-cum-Commissioner or the
judgment debtors were made as party to the proceedings.
87. On a perusal of the Panchanama dated 02.04 2007 filed by the
Bailiff, it is submitted that the schedule of the property was only
identified by the decree holders personally on 02.04.2007 and the
endorsement of the decree holders was obtained by the Bailiff on the
warrant copy and that no persons were found in the schedule property
place. When the Bailiff enquired that no judgment debtor came before
the Court as the same is identified by the decree holders panch
witnesses and surveyor etc., then the Bailiff was asked to demarcate
the lands i.e. 7 acres of land in Sy.No.145/3, Hydernagar village,
Balanagar Mandal, Ranga Reddy District and the boundaries have
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been identified and thereafter the said suit schedule properties were
delivered in as is where is condition.
88. It is also to be noted that it is categorically averred in the
counter that at the relevant point of time there is no Reciver-cum-
Commissioner. Since the applicants are not parties they cannot be
considered as the judgment debtors in both the applications.
Section 2(10) of CPC defines the judgment debtor as under:
"judgment-debtor" means any person against
whom a decree has been passed or an order
capable of execution has been made;"
Section 2(2) of the CPC defines "decree" as under:
"decree" means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters
in controversy in the suit and may be either
preliminary or final. .... "
89. The applicants are having source of title flow as per the
submissions made in the applications and whereas the respondents
rights are recognised by the Courts vide order dated 26.08.1996 in
Applications No.469 and 470 of 1996. The petitioners in those
Applications were Assignees and the respondents therein were arrayed
as Assignors and by no stretch of imagination the orders passed in the
above applications can be equated to a decree as defined under
Section 2(2) as such the applicants are not bound by the decree dated
26.08.1996 in Application No.469 and 470 of 1996 in C.S. No.14 of
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1958 and the Bailiff did not follow the procedure as contemplated
under Order XXI Rule 35 CPC. For the sake of facility, Order XXI Rule
35 is extracted here under:
"35. Decree for immovable property.- (1) Where
a decree is for the delivery of any immovable
property, possession thereof shall be delivered to
the party to whom it has been adjudged, or to
such person as he may appoint to receive delivery
on his behalf, and, if necessary, by removing any
person bound by the decree who refuses to vacate
the property.
(2) ....
(3) ...."
90. For better appreciation, Order XL is extracted hereunder:
"1. Appointment of receivers.--
(1) Where it appears to the Court to be just and
convenient the Court may by order--
(a) appoint a receiver of any property, whether
before or after decree;
(b) remove any person from the possession or
custody of the property;
(c) commit the same to the possession, custody or
management of the receiver, and
(d) confer upon the receiver all such powers, as to
bringing and defending suits and for the
realization, management, protection, preservation
and improvement of the property, the collection of
the rents and profits thereof, the application and
disposal of such rents and profits, and the
execution of documents as the owner himself has,
or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorise the Court to
remove from the possession or custody of property
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any person whom any party to the suit has not a
present right so to remove."
91. In the case on hand, admittedly as on date no final decree has
been passed with respect to the subject land and that only final decree
can be executed and not the preliminary decree. Consequentially,
if no final decree is passed no possession can be delivered. It is
pertinent to note that the original parties to the preliminary decree are
not before this Court and the Application No.450 of 2007, which has
been filed for passing of final decree has been withdrawn vide separate
order dated 31.07.2024 in I.A. No.1 of 2024 in/and Application
No.450 of 2007 in C.S. No.14 of 1958.
92. It is also pertinent to note that the respondents in the counter
averred that this Court vide order dated 11.03.1975 was pleased to
direct the Receiver to make an attempt to enter into a compromise,
however, the Receiver of the High Court found that there is no person
able to establish by documentary evidence or otherwise that they have
any semblance of right title or interest in the nature of any form of
tenancy in any part of Sy.No.145 and that all revenue records and
Jaghir records showed that there were no subsisting recognised
tenancies or any form of legally recognised possession were any part of
Sy.No.145 and thus he came to a univocal conclusion that no useful
purpose will be served by negotiating with the persons who claimed to
be claim petitioners and hence made an application to the Court to
proceed the distribution of the possession of the land and not entered
HC, J & NVSK, J
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into any form of compromise. The said orders of the High Court was
recorded and the same were being unchallenged are now final.
It is also to be noted as to when and whether the vendors of the claim
petitioners were ever put in possession or enjoyment of any part of
Sy.No.145 is also not specified.
93. It is also to be noted that all the predecessors in title of the
present claim petitioners were tenants and in such a paradoxical
situation, the applicants could not explain how a tenant could convey
an absolute title by way of sale deeds when their interest in the
property is only that of a tenant.
94. The applicants are seeking to declare the claim petitioners as
the absolute owners and possessors of the schedule properties
mentioned in the various applications. However, the learned Senior
Counsel appearing for the petitioners / applicants submitted that the
claim of the declaration of title is given up and the prayer is only
confined to the extent of restoration of possession. Hence, only the
aspect of possession is considered for the purpose of these
applications.
95. The Panchanama report dated 02.04.2007 filed based on the
Court orders considered only the decree holders and judgment debtors
as parties to the subject lands and that a detailed enquiry was not
made and the said panchanama is not in accordance with the Order
XXI Rule 35 CPC., as such the applicants who are not parties to the
HC, J & NVSK, J
In
Application Nos.469 and 470 of 1996 are not bound by the orders
passed in the Applications dated 26.08.1996 before this Court.
That apart mere recognition of unregistered assignment deed do not
entitle the respondents/applicants in those applications as being
recognised as decree holders and they are not eligible to seek a final
decree. Accordingly, issues No.1 and 2 are answered in favour of
Applicants.
96. As regards the alternative prayer as stated supra as on date no
final decree has been passed on the subject land and based on the
final decree only possession can be delivered. As such the prayer
sought alternatively cannot be considered at this point.
97. This Court while carefully noting the above aspects and since
the petitioners have given up their claim of declaration of title of the
suit schedule properties in all the applications and the only issue that
falls for consideration is whether the Bailiff report and Panchanama
are valid or not?
98. Both the parties, applicants and respondents, do not represent
the parties in C.S. No.14 of 1958 and the subject lands are not in
control of the Commissioner-cum-Receiver since at the relevant point
of time there is no Receiver. As per Order XL Rule 1(b), the
Commissioner-cum-Receiver alone is competent to remove any person
from the possession or custody of the property.
HC, J & NVSK, J
In
99. As such, the entire proceedings of Bailiff Report and
Panchanama and putting the respondents in possession on the
subject property are not in accordance with the Order XXI Rule 35
CPC. In view of the same, the possession delivered to the respondents
is also not in accordance with the Order XXI Rule 97 and 99 CPC.
Accordingly, the Bailiff report and Panchanama report dated
02.04.2007 is declared as illegal and void and the entire proceedings
in E.P. No. 26 of 2000 on the file of the Principal District Judge, R.R.
District is a nullity. Accordingly, issue No.3 is answered in favour of
the Applicants.
100. As regards, Application No.1249 of 2008, an application to
recognise an unregistered assignment of an interest in immovable
property is not an application in accordance with law inasmuch as the
Executing Court is not competent to act upon an invalid transfer.
In view of the same, common order dated 26.08.1996 passed in
Applications No.469 and 470 of 1996 in C.S. No.14 of 1958 is hereby
set aside. Accordingly, the warrant executed by the Bailiff and
Panchanama dated 02.04.2007 in E.P. No.26 of 2000 on the file of the
Principal District Judge, R.R. District is void and without jurisdiction.
Accordingly, Application No.1249 of 2008 is partly allowed.
101. As regards, Application No.1239 of 2008 is concerned, which is
an application for stay of all further proceedings in E.P. No.26 of 2000
on the file of the Principal District Judge, Ranga Reddy District,
no specific order is required to be passed.
HC, J & NVSK, J
In
102. The prayer sought for in all these applications is to declare the
applicants as absolute owners and possessors of the various
properties mentioned therein. Since the learned Senior Counsel
appearing for the applicants submits that the said claim on the
properties mentioned in the respective applications is given up, these
applications are partly allowed to the extent of setting aside the Bailiff
report and the Panchanama dated 02.04.2007 in E.P. No.26 of 2000
on the file of the Principal District Judge, R.R. District.
103. It is pertinent to note that when the Application No.450 of 2007
filed by the respondents in the present applications seeking to pass
final decree itself is withdrawn and whereas no final decree has been
passed on the subject land and the fact that neither the preliminary
decree holders nor their successors are before this Court, the
respondents possession on the subject lands is unsustainable and
does not stand scrutiny in the eye of law. The subject lands are now
in the possession of the third parties to this suit. The scope of
enquiry after passing of preliminary decree is only to pass final
decree. In the absence of preliminary decree holders, no final decree
can be passed in respect of the properties dealt with in preliminary
decree. In view of the preceding analysis, this Court deems it
appropriate that the subject property in these applications be deleted
from the purview of the C.S. No.14 of 1958, leaving it open to the
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In
parties in these applications to pursue their remedy independently
before the appropriate Forum.
RESULT:
104. That Application No.1239 of 2008 is filed in Application
No.1241 of 2008 for granting stay of all further proceedings in E.P.
No.26 of 2000 on the file of the Principal District Judge, Ranga Reddy
District. Since the Application No.1241 of 2008 is not heard in this
batch of applications, no specific orders are required to be passed.
105. That the Applications No.361, 364, 367, 370 of 2007 and 1228,
1235 of 2008 and 43 of 2009 are partly allowed to the extent of
setting aside the Bailiffs report and Panchanama dated 02.04.2007 in
E.P. No.26 of 2000 on the file of the Principal District Judge, Ranga
Reddy District at L.B. Nagar, as the same are declared as illegal and
void.
106. It is made clear that this Court had not expressed any opinion
on the title of the parties and the relief granted is only to the extent of
setting aside the Bailiff's report dated 02.04.2007 in E.P. No.26 of
2000 on the file of the Principal District Judge, Rangareddy Distriat at
L.B. Nagar.
107. It is also made clear that this order would not preclude the
parties herein to assert their title/rights before a competent Court of
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In
law and we leave it open to the parties to pursue their remedies as
available under law.
___________________________
ALOK ARADHE, CJ
___________________________
N.V. SHRAVAN KUMAR, J
Date: 09-09-2024
Note: L.R. Copy be marked.
B/o.
LSK
