Telangana High Court
The State Of Telangana, Rep. By ... vs Abdul Samad Khan, Hyd And 178 Others on 21 February, 2025
THE HONOURABLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
O.S.A. No.5 of 2017 in Application No.839 of 2013 in C.S. No.7 of 1958
JUDGMENT:
(Per the Hon'ble Sri Justice N.V. Shravan Kumar)
The learned Advocate General for the appellant.
Mr. N.M. Krishnaiah, learned counsel for the respondents.
This Original Side Appeal has been filed under Clause 15 of
Letters Patent aggrieved by the order dated 19.09.2013 passed by the
learned Single Judge of this Court in Application No.839 of 2013 in
C.S. No.7 of 1958.
2. The appellants herein submits that they are the respondents
No.176, 177 and 178 and the respondents herein are the petitioners
in Application No.839 of 2013 in C.S. No.7 of 1958. Further, the
respondents No.2 to 4 herein are represented by their GPA holder
respondent No.1 herein.
3. For the sake of convenience, the parties hereinafter will be
referred to as they are arrayed in the present appeal i.e. Appellants/
Respondents and respondents/petitioners.
4. The Respondents/Petitioners have filed Application No.839 of
2013 in C.S. No.7 of 1958 seeking to pass final decree in respect of
the land measuring Acs.10.00 guntas in Sy.No.57 of Shamsiguda
village, Balangar Mandal, R.R. District, being part of Item No.252 of
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schedule 'A' annexed to the preliminary decree in C.S. No.7 of 1958
and to direct the Receivers-cum-Commissioners to deliver the physical
possession of the land measuring Acs.10.00 guntans in Sy.No.57 of
Shamsiguda village, Balanagar Mandal, R.R. district as shown in the
schedule and plan.
5. The learned Single Judge vide order dated 19.09.2013 allowed
the application to the extent of passing final decree only. Assailing the
same, the appellants/respondents filed the present appeal on the
following grounds:
1. The order passed in application No.839 of 2013 seeking final
decree in respect of Acre 10-00 in Sy.No.57 of Shamshiguda
village, Balangar Mandal, R.R. District is contrary to law and
facts and is liable to be set aside.
2. The learned Judge ought to have seen that while seeking up
final decree, the State was necessary party to the
proceedings since the properties in respect of which final
decree was claimed is vested with the Government,
consequent upon abolishing of Jagirs.
3. The learned Judge ought to have seen that by not ordering
notice to the State, serious prejudice is caused to the interest
of the State in the subject lands.
4. The learned Judge ought to have appreciated that the
proceedings being civil in nature notice has to be ordered
and had notice been given to the State appropriate claim
would have been made in respect of the property.
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5. The learned Judge ought to have seen that there was no
material available on record to arrive at a conclusion as to
the nature of the property and claims by third parties vis the
State.
6. The learned Judge ought to have issued notice to the State,
so as to enable the State to place before the Court that there
is no specific mention of Sy.No.57 of Shamshiguda village in
any of the schedules to the preliminary decree and that the
final decree could not have been passed when the
preliminary decree does not mention the survey number.
7. The learned Judge ought to have issued a notice to the State
so as to enable the State to place before the Court that as per
the settlement tender revenue records of Kukatpalli the land
is recorded as "Poramboke Sarkari" and the land belongs to
the State.
8. The learned Judge failed to appreciate that by no issuing
notice to the State rights of the State suffered and fraud is
played to knock away the valuable Government property.
9. The Application No.839 of 2013 came to be filed on
12.09.2013 and the same was ordered on 19.09.2013, thus
demonstrating that the matter concluded without notice
being ordered to the State and notice served on the
Government Pleader if any does not amount to serve of notice
on party as the proceedings are civil in nature.
6. Heard the learned counsel for the parties and perused the
material made available on the record.
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7. For better appreciation, it is necessary to excerpt the order
dated 19.09.2013 passed in Application No.839 of 2013 in C.S. No.7
of 1958 by the learned Single Judge.
"The Court made the following order:
This is an application filed to pass a final decree in
favour of the petitioners 1 and 2 in respect of land
measuring Acs.10.00 guntas, in Sy.No.57 of
Shamshiguda village, Balanagar Mandal, Ranga
Reddy District, on payment of requisite stamp
duty and direct the Receiver-cum-Commissioner
to deliver the physical possession of the land to
the petitioners.
It is stated that already paper publication is
ordered in Application No.495 of 2009 and the
same was published and filed in the Court.
Thereafter, the Commissioner filed his report on
17.07.2009.
The learned counsel for the respondents have no
objection in allowing the application since they
have entered into a compromise.
Sri M.A. Bari, Learned Senior Counsel, Receiver-
cum-Commissioner also submits that he has no
objection for passing a final decree.
In view of the averments stated in the affidavit
filed in support of the application and since there
is no objection from anybody, this application is
allowed to the extent of passing final decree only.
Sri M.A. Bari, Senior Counsel, who is Receiver-
cum-Commissioner is entitled to receive the
remuneration at the rate of 2% on the value of the
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property and the petitioners are directed to pay
the same at the time of delivery of possession of
the property."
8. The aforesaid order was followed by the decree dated
19.09.2013 drafted in Application No.839 of 2013 in C.S. No.7 of
1958, which reads as under:
"1. That the Civil Suit C.S. No.7/1958 is a suit for
partition and separate possession respect of the
Matruka properties of Late Nawab Moinduddowla
Bahadur, forming Paigah Asmajahi. The Hon'ble
High Court has passed a preliminary decree in
C.S. No.7/1958 on 6-4-1959 by virtue of a
compromise, under which the Plaintiff and
Defendant No.1 have received the cash, mansions,
urban properties and securities, therefore the
share of Defendants No.2 to 22 are determined,
holding them entitled to receive their shares in all
other suit schedule properties including the
properties shown in item No.230 to 254 of
schedule "A" annexed to the preliminary decree.
2.That the property in Sy.No.57 of Shamsiguda
village, Balangar Mandal, R.R. District is part of
item No.252 of schedule "A" appended to the
preliminary decree, which is the Matruka
properties of Moinuddowla Bahadur, wherein the
Defendants No.2 to 22 are held entitled to receive
the due share in terms of the preliminary decree
in C.S. No.7/1958. The Chief Commissioner Land
Administration, Govt., of A.P., submitted a report
to the Government of Andhra Pradesh Revenue
Department, A.P. Secretariat vide CCLA
LR.No.NA2/206/2009 dated 22-02-2010,
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confirming that the land in Sy.No.57 of
Shamsiguda village, is a private patta land
belonging to Paigah Asmajahi. The said
proceedings have become final and therefore the
Government of A.P., represented by the
Respondents No.176 to 178 is bound by the
preliminary decree as well as this final decree.
3. That the Petitioners No.1 to 4 have acquired the
property in Sy.No.57 of Shamsiguda village,
Balangar Mandal, R.R. District, being part of item
No.252 of Schedule "A" appended to the
preliminary decree, to an extent of Ac.1--Gts.,
under two sale deeds both dated 12-03-2004
executed by the Share Holders/Defendants.
The Petitioners No.1 to 4 have been brought on
record as Defendants, having purchased the
property the Petitioners No.1 to 4 are in physical
possession of the property measuring Ac.10-00
Gts., out of Sy.No.57 of Shamsiguda village. The
Petitioner No.2 to 4 have empowered petitioner
No.1 to act as their GPA, and accordingly,
permission is granted.
4. That as per the orders of the Hon'ble High
Court in Appl.No.495/2009 in C.S. No.7 of 1958,
the Receivers-cum-Commissioners have submitted
the scheme of partition along with the plan,
dividing the property by metes and bounds among
the share holders. While preparing the scheme of
partition, the Petitioners No.1 to 4 being the
alienees pendent lite, have also filed the work
memo before the Receivers-cum-Commissioners,
requesting them to accommodate the in the
scheme of partition, as they are the bona fide
purchasers. Accordingly the Receivers-cum-
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Commissioners have found the Petitioners No.1 to
4 in physical possession of the property
measuring Ac.10-00 Gts., in Sy.No.57 of
Shamsiguda Village and have accommodated the
Petitioners No.1 to 4 and specifically allotted
Ac.10-00 Gts., of land to the Petitioners being the
purchasers from the share holders, and shown the
same in the plan by metes and bounds.
5. That by virtue of the purchase of the property
measuring Ac.10-00 Gts., out of Sy.No.57 of
Shamsiguda Village, and the fact of
accommodation of the Petitioners under the
scheme of partition, entitled the Petitioners to get
the present final decree passed in their favour.
6. Therefore this Court do hereby grant the final
decree in favour of the Petitioners No.1 to 4 jointly
in respect of the land measuring Ac.10-00 Cents.,
in Sy.No.57 of Shamsiguda village, being the
alienees pendent lite, which is shown in the
schedule and the plan in red color appended to
this final decree. Thus by virtue of this final
decree, the Petitioners No.1 to 4 are be and hereby
declared as absolute owners of the land measuring
Ac.10-00 Cents., in Sy.No.57 of Shamsiguda
Village, Balanagar Mandal, R.R. District being part
of item No.252 of schedule "A" annexed to the
preliminary decree in C.S. No.7/1958, being the
alienees pendent lite, more specifically shown in
the schedule and the plan in red color annexed to
this final decree.
7. That the respondents 172 and 173 herein as
purchased extent of Ac.100.00 gts of land in
Sy.No.57 of Shamsiguda Village, Under the
assignment deed dated: 16.09.2010 the
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conveyance deed dated: 03.08.2003 and the
registered deed of declaration deed dated
12.08.2011 which is registered on as a document
No.293/IV/2011 by the District Registrar, Ranga
Reddy District which has given them exclusive
right to seek final decree for which the
respondents 172 and 173 have filed as separate
final decree application and for passing of final
decree in favour of the respondents 172 and 173
to the extent of Ac.100.00 gts, the petitioners have
no objection.
8. That the Petitioners No.1 to 4 are be and hereby
directed to pay the remuneration to the Receivers-
cum-Commissioners in respect of the land finally
decreed in their favour within two weeks..
That there be no order as to costs.
SCHEDULE OF PROPERTY
All that land measuring Ac.10-00 Gts., in
Sy.No.57 of Shamsiguda Village, Balanagar
Mandal, R.R. District, being part of item No.252 of
schedule "A" annexed to the preliminary decree in
C.S. No.7/1958, and morefully described and
shown in the schedule and plan in red color
annexed hereto and bounded by:-
North : Village boundary of Gajula
Ramaram Village.
: land allotted to D-7 & D-8 in
Sy.No.57 of Shamsiguda.
South : Land allotted to D-6 in Sy.No.57 of
Shamsiguda.
East : Land allotted to D-5 & D-6 in
Sy.No.57 of Shamsiguda.
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West : Land allotted to D-6 & 7 in
Sy.No.57 of Shamsiguda."
9. On a perusal of the above, the learned Single Judge in the order
dated 19.09.2013, recorded that the respondents had no objection in
allowing the application since they have entered into compromise. It
is also observed that already paper publication is ordered in
Application No.495 of 2009 and the same was published and filed in
the Court and thereafter, the Commissioner filed his report on
17.07.2009. It is further recorded that the learned Senior Counsel,
Receiver-cum-Commissioner also submits that he has no objection for
passing a final decree. Recording the above, the learned Single Judge
allowed the application to the extent of passing final decree only.
10. However, in the copy of the final decree, there is no mention or
reference about the compromise of the appellants herein,
who represents the State. In the decretal copy, it is declared that the
respondents herein are the absolute owners of the subject land of
Acs.10.00 guntas in Sy.No.57 of Shamshiguda village, Balangar
Mandal, R.R. District being part of item No.252 of schedule "A"
annexed to the preliminary decree in C.S. No.7 of 1958. It is further
recorded that the respondents No.172 and 173, in the decree, have
purchased extent of Acs.100.00 guntas in Sy.No.57 of Shamshiguda
village, under the assignment deed dated 16.09.2010, the conveyance
deed dated 03.08.2003 and the registered deed of declaration deed
dated 12.08.2011, which is registered on as a document
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No.293/IV/2011 by the District Registrar, Ranga Reddy District which
has given them exclusive right to seek final decree for which the
respondents 172 and 173, in the decree, have filed separate final
decree application and for passing of final decree in favour of the
respondents 172 and 173, in the decree, to the extent of Acs.100.00
guntas, the respondents herein have no objection. It is to be noted
that in the para 7 of the final decree dated 19.09.2013 drafted in
Application No.839 of 2013 in C.S. No.7 of 1958 is not forming part of
the order dated 19.09.2013 passed in Application No.839 of 2013 in
C.S. No.7 of 1958 by this Court, which has been allowed to the extent
of passing final decree only. As such, there is discrepancy in the
order and in the decree dated 19.09.2013.
11. At this juncture, it is significant to note that the Division Bench
of this Court vide order dated 09.01.2025 closed the C.S. No.7 of 1958
wherein at para No.36 observed as under:
"36. On a perusal of the paragraph 4(g) of the
preliminary decree dated 06.04.1959, it is evident
that the defendant Nos.2 to 22 were entitled to the
properties mentioned at item Nos.230 to 254 of
Schedule 'A' annexed to the preliminary decree, in
case the same are restored or released in favour of
Asman Jahi Paigah. In the instant case,
admittedly, there is no material to indicate that
the properties mentioned at serial No.230 to 254
of Schedule 'A' to the preliminary decree have
been restored or released in favour of Asman Jahi
Paigah. It is pertinent to note that as per para 4(g)
of the preliminary decree dated 06.04.1959, the
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Commissioners-cum-Receivers have the power to
sell the property by way of public auction and
exercise all powers necessary for effecting the
division of the sale between the defendants No.2
to 12 and 14 to 22. Accordingly, each son would
get 2/33 and each daughter would get 1/33 in the
properties of Schedule 'A' except items 230 to 254
of the Schedule and items of properties allotted to
the plaintiff. The defendant Nos.2 to 22 will get
their share, namely, each son getting 2/35 and
each daughter getting 1/35 from the arrears of
income future income, compensation or
commutation or sale proceeds of the items 230 to
254 of Schedule 'A' detailed under the head of
"Makthas" in case of the same are restored or
released in favour of Paigah Asman Jahi."
12. The subject property under appeal is in respect of Item No.252
(Shamshiguda) of Schedule-A of the suit. The Division Bench of this
Court vide order dated 09.01.2025 had closed the C.S. No.7 of 1958
wherein at Para No.40 it was observed that "As such, the submissions
made on behalf of the objectors are unsustainable and in that view of
the matter, it can safely be concluded that no lands are available for
partition in item Nos.230 to 254 of Schedule 'A' attached to the
preliminary decree. In the absence of preliminary decree for item
Nos.230 to 254 in Schedule 'A', no final decree could have been passed.
Therefore, reports filed earlier are without proper verification,
are fictitious and the same are treated as nullity and are hereby
rejected."
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13. It is to be noted that the C.S. No.7 of 1958 was closed with
specific observation that no lands are available for partition in Item
No.252 Schedule-A and the subject land i.e. admeasuring Acs.10.00
guntas in Sy.No.57 of Shamshiguda village of Schedule 'A' of the suit
Balangar Mandal, Ranga Reddy District.
14. In view of the above discrepancies found in the order and the
decree dated 19.09.2013 and also taking into consideration the
specific observations made in C.S. No.7 of 1958 that no lands are
available for partition in Item Nos.230 to 254 of Schedule "A" attached
to the preliminary decree and in the absence of preliminary decree for
item Nos.230 to 254 in Schedule "A", no final decree could have been
passed, impugned order and decree dated 19.09.2013 passed in
Application No.839 of 2013 in C.S. No.7 of 1958 are hereby set aside.
15. Accordingly, this OSA. No.5 of 2017 in Application No.839 of
2013 in C.S. No.7 of 1958 is allowed. However, it is made clear that
this Court has not expressed any opinion on the title or otherwise of
the appellants herein. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall
stand closed.
___________________________
SUJOY PAUL, ACJ
___________________________
N.V. SHRAVAN KUMAR, J
Date: 21-02-2025
LSK
