Telangana High Court
The State Of Telangana And 2 Others vs Gopishetty Balaji And 181 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.8 of 2018 in Application No.856 of 2013 in C.S. No.7 of 1958
JUDGMENT:
(Per the Hon'ble Sri Justice N.V. Shravan Kumar)
The learned Additional Advocate General for the appellants.
Mr. Chakravarthy P.V.S.K, 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.856 of 2013 in
C.S. No.7 of 1958.
2. The appellants herein submits that they are the respondents
No.182, 183 and 184 and the respondent No.1 herein is the petitioner
in Application No.856 of 2013 in C.S. No.7 of 1958.
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 Respondent/Petitioner has filed Application No.856 of 2013
in C.S. No.7 of 1958 seeking to pass final decree in favour of the
respondents/petitioners in respect of the land measuring Ac.1.00
guntas in Sy.No.57 of Shamsiguda 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 and to direct the Receivers-
HAC, J & NVSK, J
in
in
cum-Commissioners to deliver the physical possession of the land
measuring Ac.1.00 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.856 of 2013 seeking final
decree in respect of Acre 1-00 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 making an
endorsement that State was not a necessary party to the
proceedings, causes serious prejudice to the interest of the
State.
4. The learned Judge ought to have appreciated that had notice
been given to the State appropriate claim would have been
made in respect of the property.
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.
HAC, J & NVSK, J
in
in
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".
8. The conclusion arrived by the learned Single Judge that no
objection was expressed by Counsel for allowing the
application on the ground that they have entered into a
compromise is erroneous since no notice has been issued to
the State.
9. The order under challenge is not reasoned order.
6. Heard the learned counsel for the parties and perused the
material made available on the record.
7. For better appreciation, it is necessary to excerpt the order
dated 19.09.2013 passed in Application No.856 of 2013 in C.S. No.7
of 1958 by the learned Single Judge.
"This is an application filed Under Order 20 Rule
18 CPC., r/w Section 146 and 151 CPC to pass a
final decree in favour of the petitioner to and
Extent of Ac.1.00 guntas, in Sy.No.57 of
Shamshiguda Village, Balangar Mandal, Ranga
Reddy District, on payment of requisite stamp
HAC, J & NVSK, J
in
in
duty and direct the Receiver-cum-Commissioner
to deliver the physical possession of the land.
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 this 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
property and the applicants 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.856 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
HAC, J & NVSK, J
in
in
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 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,
confirming that the land in Sy.No.57 of
Shamsiguda village, is a private patta land
belonging to Paigah Asmajahi which have become
final;
3. That the Petitioner who has purchased the land
measuring Ac.2-00 Gts., in Sy.No.57 of
Shamsiguda Village, Balanagar Mandal, R.R.
District, being part of item No.252 of Schedule "A"
appended to the preliminary decree, from the
Defendants No.15, 12, 14, 8, 19, 20, 21, 22 and
the legal heirs of Defendants No.3, 4, 5, 6, 7, 9, 10
HAC, J & NVSK, J
in
in
& 11, was brought on record as Defendant in C.S.
No.7/1958, and is entitled to get the final decree
passed in his favour.
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 in Sy.No.57 of Shamsiguda
Village, by metes and bounds among the share
holders and the Petitioner being the alienee
pendent lite, was accommodated him in the
scheme of partition, being bonafide purchaser
specifically allotting Ac.2-00 Gts., of land to the
petitioner being the purchaser from the share
holders, and shown in the plan by metes and
bounds.
5. That the land allotted to the Petitioner by the
Receivers-cum-Commissioners under the scheme
of partition, is under the physical possession of
the Respondents No.178 & 179 herein, and the
have amicably settled the matter and the
Petitioner is allotted Ac.1-00 Gts., in Sy.No.57 of
Shamsiguda Village, which is specifically shown in
the schedule and plan annexed hereto.
6. That by virtue of the purchase and in view of
the above settlement the Petitioner is entitled to
this final decree to an extent of Ac.1-00 Gts., only
out of Sy.No.57 of Shamsiguda Village.
This Court upon observing that the applicant
issued notice vide substitute service and since
there is no objection from anybody, doth order
and decree as follows:-
HAC, J & NVSK, J
in
in
1. The applicant be and the same is hereby
allowed and a final decree be and hereby is passed
in favour of the Petitioner in respect of the land
measuring Ac.1-00 Cents., in Sy.No.57 of
Shamsiguda Village, being the alienee pendent
lite, which is shown in the schedule and the plan
in red color appended to this final decree.
2. That the Petitioner be and hereby is declared as
absolute owner of the land measuring Ac.1-00
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.
3. That the Sri M.A. Bari is entitled to receive the
remuneration @ 2% on the value of the property;
4. That the applicant herein is directed to pay the
remuneration at the time of deliver of possession
of the property; and
5. That there be no order as to costs."
SCHEDULE OF PROPERTY
ALLOTTED TO THE PETITIONER/FINAL
DECREE HOLDER
All that land measuring Ac.1-00 Gts., out of
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, more specifically shown in the
plan in red color annexed hereto and bounded by:-
North : Village boundary of Gajula
Rama Ram.
HAC, J & NVSK, J
in
in
South : 40 feets wide road & land allotted to
Respondents No.172 &
173/Defendants No.148 & 149 in C.S.
No.7/1958.
East : Part of Sy.No.57 of Shamsiguda Village.
West : 40 feet wide Road & part of Sy.No.57 of
Shamsiguda."
9. On a perusal of the order passed by the learned Single Judge,
it is noticed that though the appellants, State, were made parties, it is
specifically mentioned that "(Respondents No.1 to 177, 182 to 184 are
not necessary parties to this application) and they are made as
proforma parties."
10. In the final decree dated 19.09.2013, it is stated that the
respondents/petitioners purchased the land measuring Acs.2.00
guntas in Sy.No.57 of Shamsiguda village, Balanagar Mandal, R.R.
District, being part of Item No.252 of Schedule "A" appended to the
preliminary decree, from the Defendants No.15, 12, 14, 8, 19, 20, 21,
22 and the legal heirs of Defendants No.3, 4, 5, 6, 7, 9, 10 & 11, who
were brought on record as defendant in C.S. No.7 of 1958, are entitled
to get the final decree in their favour.
11. In the case on hand, though the appellants herein were made
party to the proceedings, it is specifically mentioned that they are not
necessary parties and they are made as proforma parties. As such,
there was no occasion for the appellants herein to file their objections.
HAC, J & NVSK, J
in
in
12. The learned Single Judge in the order dated 19.09.2013
recorded that the appellants/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.
13. 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
respondent/petitioner is the absolute owner of the subject land of
Acs.1.00 cents 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
respondent/petitioner has purchased the land measuring Acs.2.00
guntas in Sy.No.57 of Shamshiguda village, Balanagar Mandal,
R.R. District.
14. 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:
HAC, J & NVSK, J
in
in
"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
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."
15. 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
HAC, J & NVSK, J
in
in
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."
16. 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.1.00
guntas in Sy.No.57 of Shamshiguda village of Schedule 'A' of the suit
Balangar Mandal, Ranga Reddy District, is part of said Item No.252.
17. In view of the above discrepancies found in the order and the
decree dated 19.09.2013 and that the appellants though arrayed as
respondents No.182, 183 and 184 were shown as not necessary
parties to the Application No.856 of 2013 and were made as proforma
parties, the appellants could not put forth their objections. As such,
the order and decree dated 19.09.2013 is not binding on the
appellants. That apart, 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
HAC, J & NVSK, J
in
in
passed, hence impugned order and decree dated 19.09.2013 passed in
Application No.856 of 2013 in C.S. No.7 of 1958 are hereby set aside.
18. Accordingly, this OSA. No.8 of 2018 in Application No.856 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
