Telangana High Court
Kasani Shankar vs Nawab Zahir Yar Jung Bahadur D.1 on 9 January, 2025
* THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
+ Application No.488 of 2012 in
Application No.519 of 2009 and
Application No.24 of 2024
in/and
C.S.No.7 of 1958
% 09.01.2025
# Between:
Sahebzadi Sultan Jahan Begum
D/o.Nawab Moinuddowla Bahadur & others
Appellants
Vs.
Nawab Zahir Yar Jung Bahadur
S/o.Late Nawab Moinuddowla & others
Respondents
! Counsel for Appellants : Mr.Deepak Misra
(in Appl.No.24 of 2024)
N.M.Krishnaiah
(in Appl.No.488 of 2012)
^ Counsel for Respondents : Mr.Naga Srinivas Rao (R.1)
Mohammed Sarshar Ahmed (R.21)
Manjari S Ganu (R.118 and R.126)
(in Appl.No.24 of 2024)
Shyam Sundar Rao Burgula (R.20)
(in Appl.No.488 of 2012)
<GIST:
> HEAD NOTE:
? Cases referred
1 2018 SCC OnLine Hyd 284 = 2018 (5) ALT 645 (DB)
2
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
Application No.24 of 2024
in/and C.S.No.7 of 1958
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
Application No.488 of 2012 in
Application No.519 of 2009 and
Application No.24 of 2024
in/and
C.S.No.7 of 1958
COMMON ORDER:
(Per the Hon'ble Sri JusticeN.V.Shravan Kumar)
Brief facts in C.S. No.7 of 1958:
One Smt. Sultana Jahan Begum, D/o. Late Nawab
Moinuddula Bahadur had filed O.S. No.130/1 of 1953 for
partition and separate possession of the Matruka
properties specifically shown in the schedules appended to
the plaint, on the file of the City Civil Court, Hyderabad,
which was later transferred to the file of the High Court
and numbered as C.S. No.7 of 1958.
2. In the aforesaid civil suit, parties to the suit filed
memorandum of compromise. An application, namely
Application No.126 of 1958, was filed praying this Court to
record compromise and pass a preliminary decree in terms
of compromise and to appoint M/s. Raja Kishandas and
Nawab Saleem Khan as Commissioners / Receiver with the
powers set out in the memorandum of compromise.
Accordingly, a preliminary decree was passed on
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
06.04.1959. Thereafter, the said persons were appointed
as Commissioners / Receivers to manage the affairs of suit
properties initially for a period of one year and later the
term was extended.
3. Thereafter, the Commissioners / Receivers have
effected the partition of the lands as per the schemes and
filed their report dated 20.12.1965 and affidavit dated
20.09.1966 in Application No.205 of 1966 with the
following distribution statements:
A and F Immovable properties
E Shares and Securities
B Exclusive property of
Defendant No.1
C Son of D1 Nawabzada
Laeequddin Khan
D Son of D1 Nawabzada
Qutubuddin Khan
Schedule A comprised of To plaintiff items 2, 13, 14,
254 items: 15 (as per the Decree) and
also Fareed Villa.
4 Items
128 items Sold from time to time as
per Court order
2 items 8 and 24 sold with consent
in 276/60 dated
10.02.1961, 138/61,
146/61 and 70/62 on
19.11.1962
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
26 items (Inclusive of F schedule)
were partitioned as per order
11 items Lands given on Nuzool
25 items* (Maktha lands) (not released
by the Revenue Department)
As per para 4*g( of the
Preliminary Decree
50 items Barracks at Jahanuma
(valued as per Court order
dated 13.12.1963 in
Application No.335 of 1962)
1 item (Item No.4) several duilding
and land as Shamshabad
1 item Item 25 at Aurangabad (no
records available)
8 items No 6 Akbar Bagh, Toli
Chowki, and 26 Bahdood
Nagar
Item 27 Total Kunta (Agricultural
lands in possession of
Tenants subject matter of
litigation with Revenue
Department)
Items 230 to 254 of 'A' Item 10 Moosa Ram Bagh
schedule possession taken over by
1 item Receiver
'E' Schedule: Items 1 to 4 and 11 and 12
of the value of
1 Cash and Securities Rs.12,60,733/- (in the
custody of Finance
Department, Government of
Andhra Pradesh.
2 Cash and Securities Item 5 to 9 of value of
Rs.4,07,800/-
3 Cash and Securities Nizam State Railway Shares
of Rs.78,000/- + Dividend
320/- (handed over to
Receiver by Defendant No.1)
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
4. The Commissioners / Receivers in their report in
para 7 have categorically stated that 25 items of properties
are Makta lands, which are subject matter of litigation in
the Revenue Department. It is further stated as per para
4(g) of the preliminary decree, in case the said 25 items of
properties are restored or released in favour of Asman Jahi
Paigah, the arrears of income, future income,
compensation or sale proceeds derived from the said
properties shall be distributed among defendants (2 to 22)
in the proportion of 2.35 to each son and 1/35 to each
daughter. It is also mentioned in the report that the said
25 items of properties have not yet been restored or
released and that they cannot be valued or partitioned.
The Commissioners / Receivers have attached a statement
marked as 'V'. Therefore, the Commissioner-cum-
Receivers could not file report about the release of items
230 to 254 of 'A' Scheduled which are in the custody of the
Revenue Department.
5. Thereafter, a final report has been filed in the form
of an affidavit dated 22.12.1969 in Application No.228 of
1969 in which prayer has been made to pass a final decree
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
in terms of the Report, allotting the shares in items 1 to
229 only. Thereafter an Application No.88 of 1970 was
filed to relieve the Commissioners-cum-Receivers from the
Receivership in view of the conclusion of the proceedings.
This Court thereupon passed orders in Application No.228
of 1969 on 13.02.1970 accepting the Report of the
Receivers directing the Registry to draw a final decree in
the suit and also passed orders discharging the Receiver
by an order dated 10.06.1971 in Application No.88 of
1970.
6. It is to be noted here that in para 1(d) of the
Application filed under Order XXIII Rule 3 of CPC and the
memorandum of compromise, the parties have declared as
follows:
"Para 1(d) "that as per the provisions
of Abolition of Jagir Regulation No.69
of 1358 and (Jagir) Commutation
Regulation 25 of 1358 F, the
commutation amount or Jagir
income may be received by each of
the parties herein as heretofore, and
their legal heirs under personal law,
the Defendant No.2 as Amir-e-Paigah
receiving two-fifth and the Plaintiff
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and remaining Defendants receiving
the remaining three-fifth."
7. In para 4(g) of the order dated 06.04.1959, it is
recorded that the Receiver cum Commissioners will have
power to sell the said properties by way of public auction
and exercise all powers necessary for affecting the division
of the same between defendants Nos.2 to 12 and 14 to 22
each son getting 2/33 and each daughter getting 1/33
share in the properties of schedule 'A' except items 230 to
254 of this schedule and the items of properties allotted to
the plaintiff. That the defendants 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
"Makhtas", in case the same are restored or released in
favour of Paigah Asman Jahi. In the Application filed under
Order XXIII Rule 3 of CPC for recording Memorandum of
Compromise, the said para 4(g) have also been
incorporated in the terms of compromise and the same had
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
become part and parcel of the Memorandum of
Compromise.
8. A Division Bench of this Court by order dated
20.12.2022 has appointed Mr.Mohd. Bande Ali, Retired
District Judge and Mr. K.Ajith Simha Rao, Retired District
Judge, as Receiver-cum-Commissioner for submission of
report post drawal of preliminary decree to enable the
Court to draw up the final decree. Thereafter, the new set
of aforesaid Receiver-cum-Commissioner have filed a
report dated 06.07.2023 to the effect of memorandum of
compromise and preliminary decree.
9. In the said report they have concluded that the
entire litigation originated from the alleged execution of
Assignment Deeds and the orders passed thereon and
would submit that the properties in Item Nos.232 to 254 of
Schedule 'A' of the preliminary decree have not been
restored or released in favour of Paigah Asman Jahi.
Resultantly the schemes of partition of the properties
covered under Item Nos.232 to 254 of Scheudle 'A' of the
preliminary decree in C.S. No.7 of 1958 prepared and
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
submitted by the Receiver-cum-Commissioner is of no help
to the parties to claim any right or title and possession if
any delivered to them under execution proceedings in
respect of such properties by virtue of any final decree
which came to be passed on the basis of Assignment Deeds
and the consent of the Assignors.
10. Further, the properties covered by Items No.230
to 254 of Schedule 'A' detailed under the head of
"Makhtas" were not partitioned as per para 1(d) and 4(g) of
the terms of compromise memo and as per para 1(d) and
4(g) of the preliminary decree dated 06.04.1959 and as per
para 7 of the report dated 20.12.1965 and Affidavit dated
20.09.1966 of Receivers-cum-Commissioners (Nawab
Saleem Khan and Govindas Mehta) filed in Application
No.205 of 1965 and as per para 11 Affidavit dated
22.12.1969 in Application No.228 of 1969 wherein it was
submitted that the properties covered by Items No.230 to
254 of Schedule 'A' detailed under the head of "Makhtas"
were not partitioned. The Receiver cum Commissioner
further submit that in the absence of any relief of
restoration in favour of the Paigah Asman Jahi, division of
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
the respective shares in the properties covered under Items
No.230 to 254 of Schedule 'A', the plaintiff and the
defendants cannot make any claim or ownership of the
suit properties and has finally concluded that the draft
final decree as per the order dated 13.02.1970 in
Application No.228 of 1969 in the suit in respect of Items 1
to 229 of Schedule 'A' and Schedules 'B', 'C', 'D', 'E' and 'F'
of preliminary decree to be engrossed on stamp papers
giving a quietus to the suit in C.S. No.7 of 1958.
11. This Court on 07.07.2023 noted that Mr. Mohd.
Bande Ali and Mr. Ajithsimha Rao, Receivers-cum-
Commissioners have submitted report and directed that
the report be furnished to the learned counsel for the
parties enabling them to file their objections to the report.
Thereafter, objections were filed, from time to time, and
vide order dated 26.07.2024, this Court directed the
Registry to list the matter for final hearing.
Brief facts in Appl.No.488 of 2012:
12. Application No.488 of 2012 has been filed seeking
to direct the receiver-cum-commissioner to handover the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
possession of land admeasuring Ac.1.25 guntas in
schedule A and Ac.1.30 guntas in schedule B, in Survey
No.57 1/8/A of Shamshiguda Village, Balanagar Mandal,
Ranga Reddy District to the applicants in Application
No.488 of 2012 in view of the final decree dated 30.12.2011
passed in Application No.519 of 2009 in C.S.No.7 of 1958.
13. The applicants in Appl.No.488 of 2012 submit
that as per the preliminary decree, the
vendors/predecessors in title were allotted the land in
Sy.No.57 of Shamshiguda Village, Balanagar Mandal,
Ranga Reddy District. The petitioners have purchased the
application Schedule 'A' land to an extent of Ac.1-25 gts.,
and application Schedule 'B' land admeasuring Ac.1-30
gts., in Sy.No.57/1/8A of Shamshiguda Village, Balanagar
Mandal, Ranga Reddy District which is in item No.252 of
Schedule A annexed to the preliminary decree dated
06.04.1959 from the legal representatives of defendant
Nos.2 to 12 and 14 to 22 in the suit, who were impleaded
as per the orders in Appl.No.73/2000 dated 02.02.2000
through Document dated 06.01.2006. It is further
submitted that this Court was pleased to pass final decree
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
by an order dated 30.12.2011 and the same was engrossed
on stamp paper after payment of the required stamp duty
and the final decree was passed in favour of the
petitioners. It is further submitted that the possession of
the property covered under the final decree has to be
delivered to the final decree holders by the Receiver cum
Commissioner. Therefore, the petitioners pray this Court
that the Receiver cum Commissioner be directed to hand
over the possession of the land to the petitioners and other
decree holders.
Brief facts in Appl.No.24 of 2024:
14. Application No.24 of 2024 has been filed to pass a
final decree in favour of the petitioners herein in terms of
the Memorandum of Compromise dated 29.12.2013 to an
extent of Ac.0-32 gts., in Sy.No.57 of Shamshiguda Village,
Balangar Mandal, Ranga Reddy District being item No.252
of Schedule A annexed to the preliminary decree in
C.S.No.7 of 1958 which was allotted to defendant No.14 as
per the scheme of partition submitted by the receivers-
cum-commissioners and approved as per the orders passed
in Appl.No.495/2009 in C.S.No.7/1958 and direct the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
receiver-cum-commissioner to confirm the possession of
the petitioners by handing over possession of the final
decree schedule land to the petitioners.
15. In the affidavit filed in support of Application
No.24 of 2024, it is stated that some of the shareholders in
the suit have executed Agreement of Sale cum General
Power of Attorney dated 21.07.2003 which was registered
on 09.04.2013 in favour of petitioners and possession of
land was handed over to the petitioners to an extent of
Ac.1-37 gts., in Sy.No.57 of Shamshiguda Village. Later, as
per the report of the Receiver-cum-Commissioner, the said
land was fallen to the share of defendant No.14 and hence
the said defendant who is one of the party to the
Agreement of Sale cum General Power of Attorney had
agreed to pass final decree vide Memorandum of
Compromise dated 29.12.2013, in favour of petitioners to
an extent of Ac.0-32 gts., and the petitioner may be
declared as absolute owner of the schedule property i.e.,
Ac.9-32 gts., in Sy.No.57 of Shamshiguda Village, which
was described and dealienated in the map attached to the
compromise decree dated 29.12.2013, as such the present
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
application in Appl.No.24 of 2024 was filed by the
applicants for passing of final decree in respect of the land
allotted to defendant No.14 under Section 146 of Civil
Procedure Code, 1908. The applicant also filed an
application for impleadment in the suit as the purchaser of
the land allotted to defendant No.14 and sought for passing
of final decree in their favour in respect of land to an extent
of Ac.0-32 gts., in Sy.No.57 of Shamshiguda Village,
Balanagar mandal, Ranga Reddy District in terms of
compromise decree dated 29.12.2013.
16. The applicants in Application Nos.495 of 2008,
505 and 508 of 2013 have filed the objections to the report
submitted by the Commissioner dated 12.03.2009 and
have sought rejection of the report of the Commissioner.
The applicants in the aforesaid applications seek a
direction to the receiver to abide by the report of the
Commissioner dated 12.03.2009 which was accepted by
this Court on 17.07.2009, in respect of the land situated in
Survey No.57 of Shamshiguda Village, Balanagar Mandal,
Ranga Reddy District and to confirm the final decree dated
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
30.12.2011 passed in Application No.519 of 2009 in favour
of the objectors/applicants.
17. In order to appreciate the grievance of the
applicants in Application Nos.495 of 2008, 505 and 508 of
2013, reference to relevant facts need mention which are
stated infra. The subject matter of these applications is
makthas bearing item Nos.230 to 254 of Schedule A
annexed to the preliminary decree situated in
Shamshiguda Village, Balanagar Mandal, Ranga Reddy
District. According to the applicants in the said
applications, the aforesaid makthas were not taken over by
the Government and were the personal property of Nawab
Ali Janab Mir Kabir Mohammed Fakruddin Khan Bahadur.
A civil suit namely C.S.No.7 of 1958 was filed seeking
partition of properties of Asman Jahi Paigah. In the
aforesaid civil suit, on the basis of the compromise arrived
at between the parties, a preliminary decree was passed on
06.04.1959. The relevant extract of the preliminary decree
is as under:
"4(g). For the purpose of affecting the
distribution of properties among the persons
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
entitled thereto the Commissioners/Receivers
will have powers to sell the said properties by
public auction and exercise all powers
necessary for effecting the division of the sale
each son getting 2/33 and each daughter
getting 1/33 in the properties of Schedule A
except items 230 to 254 of this 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."
18. The subject matter of these applications pertain
to land bearing Survey No.57 of Shamshiguda Village,
Balanagar Mandal, Ranga Reddy District, which is
included in Annexure A annexed to the preliminary decree.
19. A Division Bench of this Court by an order dated
15.10.2008 passed in Application No.495 of 2009 directed
the receiver-cum-commissioner to submit a report by
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
dividing the land situated in Survey No.57 by metes and
bounds between the sharers as per their entitlements in
the preliminary decree. The receiver-cum-commissioner
submitted report before this Court on 12.03.2009. A
Division Bench of this Court by an order dated 17.07.2009
accepted the report. Thereafter, the objectors in
Application No.488 of 2012 filed an application namely
Application No.519 of 2009 for passing a final decree. The
same was allowed on 30.12.2011. Thereupon, a final
decree was drawn. The relevant extract of the final decree
reads as under:
"That this Hon'ble court passed a
preliminary decree in partition Civil Suit
C.S.No.7 of 1958 for division and distribution of
private personal property of Asman Jahi Estate
dated 6-4-1959.
That Mrs. Shahabzadi Sulthan Jahan
Begum, D/o Nawab Moinuddowlah Bahadur
(Plaintiff in C.S.No.7 of 1958) filed a suit for
partition of the vast properties of Asman Jahi
Paigah.
That the properties land in survey Nos.1
to 57 to an extent of 326 acres situated at
Shamshiguda Village, Balanagar Mandal,
Ranga Reddy district being item No.252 in
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
Schedule-A of C.S.No.7 of 1958 are matruka
properties of late Nawab Moinuddowlah
Bahadur the properties were divided amongst
the defendant Nos.2 to 12 and 14 to 22 item
No.252 of the preliminary decree or the
Matruka Properties of late Nawab
Moinuddowlah Bahadur. The properties were
divided amongst the defendant Nos.2 to 12 and
14 to 22.
That as per the preliminary decree dated
6-4-1959 in Civil Suit No.7 of 1958 the
defendant Nos. 2 to 12 and 14 to 22 each son is
entitled to get 2/35th share and each daughter
is entitled to get 1/35th share of the items 230
to 254 of schedule A and as per the entitlement
the land to an extent of Ac. 1.25 guntas in
Schedule A and Ac.1.30 guntas of Schedule-B,
item No. 252 of the Schedule the defendant
Nos. 15,12,14,8,19,20,21 and 22, Legal
representatives of defendant Nos.3,4,5,6,7,9,10
and 11 under document dated: 06.01.2006 sold
the land to the applicants.
That as per the directions of this Hon'ble
court, the Advocate Receiver(s) -cum-
Commissioner(s) was appointed and directed
the Receiver(s) to submit a report by dividing
the lands situated in survey No.57 by metes
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and bounds between the sharers as per their
entitlement as per the preliminary decree the
report of advocate Receiver(s) along with the
plan was accepted and approved by this court
on 17.07.2009.
That the applicant herein submitted the
documents before the Receiver(s) at the time of
filing of the Report and requested them to allot
the land to predecessors of title to an extent of
Ac.3.15 guntas in survey No.57 of
Shamshiguda and also stated that they are in
possession and enjoyment of the land by virtue
of the Registered deed of sale transaction the
same was recorded in the Report, the division
was made between the original sharers that the
applicants herein have purchased the land to
an extent of Ac.3.15 guntas in Shamshiguda
Village and also entitled for passing of the final
decree.
That the applicants herein have
purchased the land to an extent of Ac. 1.25
guntas in Schedule A and land to an extent of
Ac. 1.30 guntas in Schedule - B of Survey No.
57/1/8 of Shamshiguda Village which is item
No.252 of Schedule-A annexed to the
preliminary decree dated 6-4-1959 from the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
L.Rs of the defendant under Registered
document dated: 06.1.2006.
That the predecessors of applicant
vendors were allotted the land in survey No.57
(part), the applicants herein are entitled to a
final decree in respect of the application
schedule A&B land to an extent of Ac.1.25 and
Ac.1.30 guntas in survey No.57 Shamshiguda
Village, Balanagar Mandal, Ranga Reddy
District.
This court doth order and decree as follows:-
1. That this application be and hereby is
allowed and a final decree is passed for the
applicants for the application schedule land.
2. That the applicants be and hereby are
entitled for final decree.
a. to an extent of Ac. 1.25 guntas,
Schedule - A. in survey No. 57/1/8/A
of Shamshiguda Village, Balanagar
Mandal, Ranga Reddy District.
bounded by
North: 60' wide Road
South: Sy. No. 57/1 part
East: Sy. No. 57/1 part
West: Sy. No. 57/1 part
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
b. to an extent of Schedule-B land
admeasuring Ac. 1.30 guntas in
Survey No. 57/1/8 of Shamshiguda
Village, Batanagar Mancal, Ranga
Reddy District
bounded by
North: 50' wide Road
South: Survey No 57/1 part
East: Survey No. 57/1 part
West: Survey No. 57/1 part
3. that a fee of Advocate (s) - Receiver (s)-
cum-Commissioner(s) is fixed at 2% of the basic
Value depicted in the basic value Register,
which shall be payable at the time of delivery
possession.
4. that the final decree be engrossed on the
requisite stamp papers as per the boundaries,
and the final decree be issued after engrossed
of stamp papers.
Note: In pursuance of the order of the Hon'ble
High Court of A.P. vide order dated: 30.12.2011
in Appln No. 519 of 2009 in C.S No. 7/58 the
requisite Stamp duty of Rs. 81000/- is to be
paid and the same was paid by way of Stamp
Papers (20 X 100) valued at Rs. 2,000/- for the
purpose of engrossment of final decree and an
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
amount of Rs.58,750/- dated: 09.02.2012 and
Rs. 20,250/-dated: 15.02.2012 was deposited
in the account of Registrar (Judicial), High
Court of A.P. in A/c No. 52005821812 in S.B.H.
High Court Branch, Hyderabad."
20. The final decree holders have deposited the
required stamp duty and the final decree was engrossed on
the stamp paper. The final decree was registered as
document bearing No.13236 of 2014, dated 31.10.2014, by
the Joint Sub Registrar, Ranga Reddy District.
21. A Division Bench of this Court by an order dated
02.01.2023 passed in Application No.9277 of 2017 and
batch appointed new receiver-cum-commissioner to submit
a detailed report on the basis of which a final decree may
be drawn. In pursuance of the aforesaid order, the
receiver-cum-commissioner has submitted a report on
06.07.2023. The commissioner recorded their conclusions
in paragraph 98 to 101.2 which are extracted below for the
facility of reference:
"98. In the facts and circumstances mentioned
in the foregoing paras, it becomes abundantly
and evidently clear that, the entire litigation
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
originated from the alleged execution of
Assignment Deeds and the orders passed
thereon would not and should not empower the
parties who litigated the cause tracing their title
to the alleged execution of Assignment Deeds. I
am therefore led to the irresistible conclusion
that the result of such litigation gets vitiated by
reason of the admitted incompetency and
powerlessness of the plaintiff and defendants in
CS.No.7 of 1958 to deal with Item Nos.232 to
254 of Schedule 'A' of the Preliminary Decree in
CS.No.7 of 1958 to deal with the properties
covered under Item Nos. 232 to 254 of Schedule
'A' of the Preliminary Decree since the said
properties have not admittedly been restored or
released in favour of Paigah Asman Jahi.
99. Resultantly the schemes of partition of the
of Schedule 'A' of the Preliminary Decree in
CS.No.7 of 1958 prepared and submitted by the
Receiver-cum- Commissioner is of no help to
the parties to claim any right or title and
possession if any delivered to them under
execution proceedings in respect of such
properties by virtue of any final decree which
came to be passed on the basis of Assignment
Deeds and the consent of the Assigners.
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
100. The net result is that the order dated
13.2.1970 in Application No.228 of 1969
accepting the report of Receivers cum
Commissioners dated 20-9-1969 filed in
Application No.205 of 1965 and directing the
Registry to draw Final Decree in the suit is final
and that there cannot be any more final decrees
in the suit in CS No.7 of 1958 and final decrees
passed thereon shall not vest the parties with
any right and interest over the properties
covered by Items 230 to 254 of Schedule 'A'
detailed under the head of "Makhtas" for the
following reasons at the cost of reiteration: -
a. That the properties covered by Items 230 to
254 of Schedule 'A' detailed under the head of
"Makhtas" were not and have not been released
or restored in favour of Paigah Asman Jahi;
b. That the properties covered by Items 230 to
254 of Schedule 'A' detailed under the head of
"Makhtas" were not partitioned as per para 1(d)
and 4(g) of the terms of compromise memo and
as per para 1(d) and 4(g) of the preliminary
decree dated 06.04.1959 and as per para 7 of
the report dated 20.12.1965 and Affidavit dated
20.09.1966 of Receivers-cum-Commissioners
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
(Nawab Saleem Khan and Govindas Mehta) filed
Affidavit dated 22.12.1969 in Application
No.228/1969;
c. That in the absence of any order of release or
restoration of the said properties in favour of
Paigah Asman Jahi, and in the absence of any
order of the Court for the division and allotment
of respective share in the properties covered by
Items 230 to 254 of Schedule 'A' detailed under
the head of "Makhtas" plaintiff and defendants
cannot make and could not have made any
claim of ownership over the said properties
since they were not vested with any right, title
and possession enabling them to execute
assignment deeds in favour of 3rd parties; and
thereby allowing the 3rd parties to create fuss
and waste the precious time of the Hon'ble
Courts.
101. Therefore, I am of the considered opinion
that the Registry has to be directed to draft
final decree as per the order dated 13.02.1970
in Application No.228 of 1969 in the suit in
respect of Items 1 to 229 of Schedule 'A' and
Schedules 'B' 'C' 'D' 'E' & 'F' of preliminary
decree and to engross the same on stamp
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
papers and thereby giving a quietus to the suit
in CS.No.7 of 1958.
101.2 The Plaintiff and Defendants/their Legal
Representatives in case of death of any of the
parties cannot file any application in CS.No.7 of
1958 in respect of Items 230 to 254 of Schedule
'A' detailed under the head of "Makhtas" and
that they have to lay their claim if any before
the competent authority."
Thereafter, the matter was adjourned for receiving
objections on the report of the Receiver cum Commissioner
dated 06.07.2023.
22. OBJECTIONS TO THE REPORT DATED 06.07.2023:
(i) The final decree holders in Application No.839 of
2013 have filed objections stating that in a partition suit,
the duty of the Receiver is to divide the suit schedule
properties between the sharers in accordance with the
share/sharers fixed in the preliminary decree. It is also
stated that there is no warrant to the Receiver entrusting
or suggesting the works to the Receiver and he himself filed
the present report by stating that the lands are not
available for partition without verifying the subsequent
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
orders and the proceedings and also the memos issued by
the concerned CCLA. The Objector reiterated the
submissions made in the affidavit and further stated that
all the proceedings and orders were not taken into
consideration by the Receiver as such the report is liable to
be quashed on the following grounds:
(a) That powers of Receiver in a partition suit is only
to divide the suit schedule properties between the sharers
fixed in the preliminary decree but in the present case the
receiver went beyond the jurisdiction and filed report
stating that the lands are not available for partition.
(b) The judicial orders passed by this Court and the
orders passed by the Hon'ble Supreme Court cannot be
nullified or modified by the report of the Receiver and
hence the present report is liable to be discarded.
(ii) Mohammed Sarshar Ahmed, learned counsel has
filed objections to the report of the Receiver cum
Commissioner on behalf of defendant No.21 in C.S.No.7 of
1958 i.e., respondent No.21 in Appl.No.24 of 2024. The
main objections are that the report is based on wrong
compromise and that the report would unsettle the things
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
which have historical significance and no proper research
was done and the report erroneously discussed as to how
the rights in a compromise decree gets transmitted to the
assignees and in the partition suit no title can be gone into.
[Comments: The applicants have not specifically stated in
their objections as to how their rights would be defeated.]
(iii) Objections were also filed on behalf of legal
representatives of defendant Nos.2 to 12 and 14 to 22 in
the preliminary decree in C.S.No.7 of 1958 to the report of
Receiver cum Commissioner. The objectors contend that
the Receiver cum Commissioner went beyond jurisdiction
and filed the report stating that the lands are not available
for partition and that the receiver has also not taken the
subsequent orders passed in the suit or the statutory
authorities and the proceedings issued by the CCLA stating
that they have not taken over the subject lands and hence
the question of release does not arise. It is also stated that
it is just and necessary to set aside the report and declare
the suit schedule property in item Nos.230 to 254 are
available for partition and to direct the Receiver cum
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
Commissioner to file the metes and bounds division report
so as to enable the parties to file final decree applications.
(iv) Similarly, objections were filed to the report of
Receiver cum Commissioner by the final decree holders in
Appl.No.519 of 2009. The objectors would submit that as
per preliminary decree dated 06.04.1959 in C.S.No.7 of
1958, the lands situated at Shamshiguda Village in
schedule 'A' (item No.252) are self purchased by
predecessors of Nawab Moin-ud-dowla Bahadur under
registered sale deed dated 27th Jamad-us-Sani 1221 Hijri
whose name was recorded in the possessor and pattadar
columns in Khasra Pahani for the year 1954-55 and
accordingly taxes are paid in respect of the lands in
Shamshiguda Village. However, proceedings are pending
before the Board of Revenue at the time of entering into
compromise and at the time of passing of preliminary
decree, the compromise decree was passed subject to
release by Board of Revenue and in view of the orders
dated 14.12.1959 passed by Board of Revenue, the
Shamshiguda Village was found to be private patta and
these makthas were never taken over by the Government
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and the said lands are available for partition and the final
decree passed earlier may be confirmed in favour of the
final decree holders.
(v) Similarly, objections were filed by defendant Nos.2
to 12 and 14 to 22 in the preliminary decree in C.S.No.7 of
1958 to the report of Receiver cum Commissioner stating
that the material facts of the case on record were not at all
dealt by the Receiver cum Commissioner to give an
unbiased report which should help the Court to come to a
proper decision based on facts and legality.
(vi) The objections filed by defendant Nos.2 to 12 and
14 to 22 in the preliminary decree in C.S.No.7 of 1958 were
adopted by third party impleaders in Review Petition in
I.A.No.1 of 2020 and I.A.No.3/2020 in L.P.A.No.1 of 2018
and C.A.No.33 of 2017 in C.S.No.7 of 1958.
23. SUPPORTING SUBMISSIONS TO THE REPORT
DATED 06.07.2023
An application in I.A.No.1 of 2025 has been filed by
the petitioners/applicants in Application Nos.1 of 2021 and
5 of 2020 in Application No.837 of 2013 in C.S.No.7 of
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
1958. The said application was filed in support of the
report of Receiver cum Commissioner by stating that the
report of the Receiver cum Commissioner has brought true
facts and the fraudulent methods applied by the persons
who claimed the lands mentioned in Schedule 'A' of the
Preliminary decree granted in C.S.No.7 of 1958 when these
lands mentioned from 230 to 254 were specifically
prohibited from partition as per 4(g) of the preliminary
decree granted in C.S.No.7 of 1958. It is further stated that
paragraph No.5 of the report of Receiver cum
Commissioner clearly brought out the facts that two
Receiver cum Commissioners who were appointed during
the proceedings of C.S.No.7 of 1958 stated that Maktas
mentioned in Schedule 'A' from 230 to 254 were under
litigation with the Revenue Department as per para 4(g) of
the preliminary decree of the report. It is further submitted
that if the properties mentioned at Sl.Nos.230 to 254 are
restored or released, the arrears of income, future income,
compensation or sale proceeds derived from the said
properties shall be distributed among defendant Nos.2 to
22 in the proportion of 2/35 to each son and 1/35 to each
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
daughter and that the said 25 items of properties have not
been restored or released and that they cannot be valued
or partitioned at this stage. As such the Receiver cum
Commissioner could not file report about the release of
item Nos.235 to 254 of 'A' Schedule which are in the
custody of Revenue Department. Eventually it is submitted
that if the lands in Shamshiguda Land was not released in
favour of Paigah Asman Jahi, no partition decree can be
passed on the said land.
SUBMISSIONS:
24. Mr.Vedula Srinivas, learned Senior Counsel
representing Mr.N.M.Krishnaiah, learned counsel for the
applicant in Application No.488 of 2012 has submitted that
the entire issue revolves around the preliminary decree and
the properties are private properties of Asman Jahi Paigah.
The said properties are under the control of Jagir
Administration. However, it is not necessary to adduce any
documents. He would submit that subsequently the
properties have been resumed and they are available for
partition. The learned Senior Counsel would submit that
the final decree has already been passed in favour of the
objectors in Application No.488 of 2012. In pursuance of
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
the final decree dated 30.12.2011 passed in Application
No.519 of 2009 in C.S.No.7 of 1958, the receiver-cum-
commissioner be directed to handover possession of the
land admeasuring Ac.1.25 guntas in schedule A and
Ac.1.30 guntas in schedule B, in Survey No.57 1/8/A of
Shamshiguda Village, Balanagar Mandal, Ranga Reddy
District under Order XXI Rule 35 read with Section 151 of
the Code of Civil Procedure, 1908. Per contra, the receiver-
cum-commissioner would submit that these properties are
not available for partition and no proof of document in
support of paragraph 4(g) of the preliminary decree is filed
to show that the aforesaid properties have been released
and that these applications are filed after 40 years.
25. Mr.Vedula Venkat Ramana, learned Senior
Counsel for the applicants in Application Nos.495 of 2008,
505 and 508 of 2013 would submit that the receiver is
appointed under Order XX Rule 18 of CPC for division of
the property covered by the preliminary decree by metes
and bounds. It is contended that the receiver neither
discharges any judicial power nor any adjudicatory power.
It is argued that receiver cannot submit a report whether a
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
particular item is available for partition. The receiver is
required to submit a scheme of partition. It is submitted
that by submitting a report dated 06.07.2023, the
Receivers/Commissioners have exceeded the scope of their
appointment and have submitted their opinions. In this
connection reference has been made to paragraphs 98 and
99 of the report submitted by the receivers. It is urged that
the report of the commissioner amounts to review of the
preliminary decree without issuing notice to any of the
parties. It is also submitted that the report submitted by
the Commissioners dated 06.07.2023 has to be rejected. It
is for the State Government to point out the provision
under which the property is required to be released and
whether the same has been released. It is contended that
the conferment of jurisdiction is a legislative function and
it cannot be conferred with the consent of the parties. It is
therefore prayed that this receivers be directed to abide by
the report already filed, which has been accepted by this
Court in respect of the land situated in Survey No.57 of
Shamshiguda Village, Balanagar Mandal, Ranga Reddy
District and confirm the final decree dated 30.12.2011
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
passed in Application No.519 of 2009 in favour of the
objectors. It is contended that the report submitted by the
receiver cum commissioner be rejected and liberty be
granted to final decree holders to take recourse to such
remedies as are available to them in law for seeking
possession. Our attention has also been invited to order
dated 30.12.1977 passed in File No.NA2/284/77 by the
Commissioner of Survey Settlement - Inam and it has been
contended that lands mentioned in item Nos.230 to 254
have been released. In support of the aforesaid
submissions, reliance has been placed on the decision of
the Supreme Court in Jagmittar Sain Bhagat v. Director,
Health Services, Haryana 1.
26. Mr.Sunil B.Ganu, learned Senior Counsel for
respondent Nos.116 and 128 in Application No.24 of 2024
has adopted the submissions made by Mr. Vedula
Venkataramana, learned Senior Counsel for the applicants in
Application Nos.495 of 2008 and 505 and 508 of 2013. He
would submit that the receiver cum commissioner appointed by
this Court has not taken into account the order dated 30.12.1977
passed by the Commissioner of Survey Settlement - Inam
(2013) 10 SCC 136
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and therefore, the aforesaid report does not deserve
acceptance. Mr.J.Prabhakar, learned Senior Counsel for
the applicant in Application No.24 of 2024 has adopted the
submissions made by Mr. Vedula Venkataramana, learned
Senior Counsel for the applicants in Application Nos.495 of
2008 and 505 and 508 of 2013. Mr.A.Venkatesh, learned
Senior Counsel for respondent Nos.12 and 21 in
Application No.24 of 2024 and for final decree holders in
application No.1409 of 2003 has adopted the submissions
made by Mr. Vedula Venkataramana, learned Senior
Counsel for the applicants in Application Nos.495 of 2008
and 505 and 508 of 2013. Learned counsel for the
objectors/final decree holders in application No.439 of
2013 had also adopted the submissions made by Mr.
Vedula Venkataramana, learned Senior Counsel for the
applicants in Application Nos.495 of 2008 and 505 and
508 of 2013. Mr.Naga Srinivas Rao, learned counsel for
respondent Nos.1 to 11, 13 to 20, 22 to 258 in I.A.No.9227
of 2014 (I.A.No.24 of 2014) submitted that all final decrees
have been obtained by playing fraud. It is contended that
the lands mentioned in item Nos.232 to 254 of the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
preliminary decree have not been released and the same
are not covered under the preliminary decree and by efflux
of time no rights are created. Therefore, the receiver cum
commissioner cannot assign the aforesaid lands in favour
of any party. In support of his submissions, reliance has
been placed on a decision of the Division Bench of this
Court in S.Tirupathi Rao vs. M.Lingamaiah 2.
Mr.T.K.Sridhar, learned counsel for the legal
representatives of defendant No.4 in the suit and for
respondent No.4 in application No.24 of 2024 submitted
that the report dated 06.09.2023 submitted by the receiver
cum commissioner in so far as it pertains to lands
mentioned in Sl. Nos.232 to 254 is required to be rejected.
Learned counsel further submitted that the receiver cum
commissioner appointed by this Court ought to have
appreciated that the final decree cannot be passed in
application Nos.1409 of 2013 and 837 of 2013 as the
unregistered assignment deeds were executed and a title in
respect of the immovable property cannot be passed on the
basis of the unregistered document. Therefore, the
2018 SCC OnLine Hyd 284 = 2018 (5) ALT 645 (DB)
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
application seeking final decree at the instance of the
applicants in application Nos.1409 of 2013 and 837 of
2013 is not maintainable and it is also pointed out that the
receiver cum commissioner has cursorily prepared the
report and ought to have examined the issue in greater
detail as the Government is in possession of some of the
lands covered under the preliminary decree.
27. Mr.Imran Khan, learned Additional Advocate
General appearing on behalf of the State would submit that
all the lands are vested in the State on account of Jagir
Abolition Act and State is not a party to the compromise
and would refer to clause 4(g) of the preliminary decree
dated 06.04.1959 from which it is evident that the
defendant Nos.2 to 22 have been held 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. He
would further submit that 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
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
of Asman Jahi Paigah and would submit that there was no
formal release order and in view of the same, the
compromise decree cannot be a foundation for further
adjudication. He would further refer to the orders passed
by the Commissioner of Survey dated 14.12.1959. The said
judgment arises against File No.A2/147/2016 pertaining to
29 self acquired properties and in the said judgment,
Commissioner of Survey Settlement - Inam in respect of
villages mentioned as 16 makthas i.e., Bahadur Ali had
allowed any other semblance of applicability in respect of
self acquired villages and the same has been restored back
to Paigah Azam indicated in the order. Learned Additional
Advocate General would further submit that the said
proceedings are incorrect and the said order is not marked
and even in the said order no details of the villages are
given and the said documents were not marked and no
evidence was led to that effect. He would further submit
that as far as Shamshiguda Village is concerned,
Government is in possession and even subsequent to the
order of release, no entries have been made in the revenue
records and the applicants have no locus to file objections
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and the assignment deeds cannot be looked into and do
not have any weightage and supports the report of Receiver
cum Commissioner dated 06.07.2023. Learned Additional
Advocate General would further submit the judgment of
the Division Bench in O.S.A.Nos.58 to 66, 68 to 72 of 2002
and O.S.A(SR).Nos.235, 288, 231, 284, 239, 227, 214, 218,
222, 243, 514, 518 and 522 of 2003 dated 10.06.2003
supports the report of the Receiver cum Commissioner. The
relevant portion of the said judgment is extracted
hereunder for better understanding and appreciation of the
case:
"The assignment deeds, prima facie
in our considered opinion are inadmissible
in evidence for the reason that the
documents are hit by Section 17 of the
Registration Act. The right title and
interest in immovable properties specified
in the assignment deeds are sought to be
transferred in favour of the assignees.
In another clause in one of the
assignment deeds dated 16.09.2000 it is
declared "that the assignors have doth
hereby assign and transfer their rights,
interest and title acquired by them in
respect of schedule mentioned property
morefully described in the schedule of the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
property and the assignment deed is to be
read in consonance with memo of
understanding entered separately for this
purpose". The said memorandum of
understanding is not made part of the
record. Such covenants mutually agreed
between the parties cannot, in any manner,
whatsoever take away or adversely effect
the right, title and interest of third parties.
The cases on hand, in our
considered opinion, require a thorough
probe for which purpose Jagir
Administrator and Secretary. Finance
Department, Government of Andhra
Pradesh who were earlier parties in C.S
No.7 of l958 are required to be impleaded...
The District Collector, Ranga Reddy District
and as well as the District Collector,
Hyderabad are also required to be
impleaded inasmuch as many of the
localities and villages situated in these
districts are sought to be included for the
first time after 40 years into the
compromise decree dated 06.04.1959. This
has resulted in causing any amount of
prejudice adversely affecting the rights of
the individuals in possession and the
orders virtually came as a bolt from in a
blue as far as they are concerned.
In our considered opinion, this is not
a case where any of the parties can be
permitted to be represented by general
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
power of attorney holder without making
proper enquiry into the genuineness of the
general power of attorney deeds. We have
noticed as to how and in what manner
certain interpolations are made in the
applications and parties are added after
filing the applications into the Court.
Since we propose to set aside the
orders passed by the learned single Judge
and remit the matter for recording evidence,
we do not propose to record any further
findings. Whatever we have noticed leaves
us not only with an unpleasant feeling but
we are shocked to realise the depth and
magnitude of misrepresentations and
manipulations that are apparent even to a
naked eye.
We must observe that we are not
impressed by the submissions made by the
learned senior counsel appearing on behalf
of respondents 102 and 103 in O.S.A Nos.
64, 65 and 66 of 2002 that the only remedy
available to the appellants herein is to get
their claims adjudicated by filing necessary
applications under Order 21 Rule 97 CPC
since a preliminary decree had already been
passed by this Court in terms of
compromise. Even orders have been
passed by this Court to accept the report of
the Commissioners/Receivers and
accordingly orders have been passed for
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
preparation of final decree- This Court is
seized of the whole of the proceedings in
either case. Whether a final decree has
been passed or not. (Underlining is by me
for drawing attention)
Even if such applications are
required to be filed under Order 21 Rule 97
CPC they have to be filed only in this Court.
There cannot be any dispute with the
proposition of law in view of the
authoritative pronouncement of the
Supreme Court. But in the instant case
each of the applications filed in the Court
are integrally connected with each other.
We have already seen the grand design and
the scheme prepared to get villages after
villages, included in the preliminary decree
passed about more than 40 years ago. We
have also seen the nature of the assignment
deeds and the parties thereto and the
nature of dispute with regard to signatures
on the said documents. We have also
found that the copies of the general power
of attorney deeds are not filed into the
Court. It is not clear from the record as to
who were the parties that were present
before the Court. In none of the
applications the decree holders and the
legal representatives have filed any vakalat
authorising any advocate to represent in
the proceedings. Even without ordering
any notice some advocate without any
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
vakalat represented the parties in the
proceedings. The whole thing is shrouded
in mystery and the proceedings themselves
are conceived in sin.
Various contentions have also been
urged by the learned counsel for the
appellants attacking the order passed by
the learned single Judge.
In view of our considered opinion that the
matter requires a further enquiry for which
purpose both documentary, and oral
evidence is required to be recorded, we are
not inclined to go into those contentions.
The questions are left open.
For the aforesaid reasons, the
impugned orders are set aside. The matter
is remitted to the learned single Judge for
disposal in accordance with law for which
purpose evidence is to be recorded: The
parties are accordingly permitted to lead
such evidence as they may consider it
necessary. In support of their claim."
28. Mr.Vedula Venkatramana, learned senior counsel
would further submit that subsequent to the preliminary
decree, reports were accepted and third parties have filed
applications and receivers were appointed and partitioned
the properties which are not been covered in the part of the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
receivers report and the entire report is based on
information gathered from the third party letters and the
receivers cannot disturb the final decrees. He would further
submit that the receiver believed the information from the
third parties to be true and the entire report appears to be
in the form of a judgment.
29. Mohd.Bande Ali, Receiver cum Commissioner, per
contra, would submit that subsequent to the release order
of the Commissioner of Survey Settlement and Inam
confirming the release of the 29 Maktha Villages in favour
of Moinuddowla Bahadur i.e., to the sharers in C.S.No.7 of
1958 by allowing the appeal filed by the legal heir of
Moinuddowla Bahadur against the orders dated
29.12.1976 disallowing the claim for 16 villages dated
30.12.1977, no document has been filed to the extent of
release order pertaining to the properties mentioned in
Schedule 'A' in item Nos.230 to 254 and in case of such
release, petitioners have to file an application for passing of
fresh preliminary decree and the subject documents need
to be marked as per Indian Evidence Act, 1872. He would
further contend that third parties cannot approach for
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
passing final decree and a fresh preliminary decree has to
be passed and Government has to be made a party to the
extent of item Nos.230 to 254 of Schedule 'A' property.
Even otherwise, as per the release order of Board of
Revenue, it is not clear insofar as to the extent of list of
properties mentioned in item Nos.230 to 254.
30. Mr.Sunil B Ganu, learned senior counsel
appearing on behalf of respondent Nos.18 and 126 in
Appl.No.24 of 2024 has filed additional objections to the
report dated 06.07.2023 stating that on culmination of
Inam and succession enquiry instituted by the Government
concerning Paigah Asman Jahi, the office of the
Commissioner of Survey, Settlement and Land Records
(CSSLR) had issued Muntakhab No.3 on 14.02.1983 as
confirmed in Proceedings Reference No.NA2/147/69 dated
11.06.1985 giving the list of all the villages which are
vested in the Government. Admittedly Shamshiguda is not
included in the said list. The said fact that Shamshiguda
being excluded from Muntakhab No.3 is also confirmed by
the Government of Telangana vide Communication dated
25.11.2022 wherein it was mentioned that appeal filed by
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
legal heirs of Paigah Asman Jahi was partially upheld by
the Board of Revenue in F.No.NA2/147/69 dated
29.12.1976 and the said proceedings would establish that
the property does not form part of Atiyat grants, as it is a
non-jagir/private land. Learned senior counsel would
further submit that land in Sy.No.57 of Shamshiguda
Village to an extent of Ac.92-22 gts., has also been mutated
in favour of respondent Nos.118 and 126 by the
Government by issuing proceedings dated 12.04.2023 and
13.04.2023 respectively. In case of any doubt about the
enforceability of the documents, respondent Nos.118 and
126 are ready to lead evidence in accordance with law.
31. We have considered the submissions made on
both sides and have perused the record.
32. The following points falls for consideration:
1) What would be the effect and implication of order
dated 30.12.1977 passed by the Commissioner of Survey
Settlement - Inam in the present case?
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
2) What would be the effect of the previous report
submitted by the receiver cum commissioner, which has
been accepted by this Court?.
3) Whether the report of the present receiver cum
commissioner can be rejected in respect of the cases,
where final decree has been passed?
4) The scope of powers of the receiver cum
commissioner as held in - Shree Ram Urban
Infrastructure Limited vs. Court Receiver, High Court
of Bombay [(2015) 5 SCC 539] and its applicability to the
present case.
5) What would be the effect of the final decree dated
30.12.2011 passed in Application No.519 of 2009 in
C.S.No.7 of 1958, has to be considered.
6) Whether the parties can be granted liberty to take
recourse to the remedy to the extent of claiming possession
in respect of the property, which may be covered by the
final decree.
33. At this juncture, it is relevant to refer to a
judgment of the Division Bench of this Court in Contempt
Appeal No.33 of 2017 and Letters Patent Appeal No.1 of
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
2018 wherein by a common judgment dated 16.08.2018
this Court allowed the said Appeal. The said order
discloses the manner in which the issues were dealt and
the relevant portion of the said judgment is extracted for
the facility of reference:
"38. The claim of the 1st respondent in his
writ petition in W.P.No.1729 of 2009 was that the
decree holders under the preliminary decree dated
06-04-1959 in C.S.No.7 of 1958 assigned their
rights in his favour and in favour of others on 01-10-
2002, in respect of land of an extent of Ac.143.00
guntas, forming part of Survey Nos.1 to 37, 39 to 43
and 45 to 49 of Raidurg village, Serilingampalli
Mandal, Ranga Reddy District; that the deed of
assignment was accepted by this Court by an order
dated 09-10-2002 in Application No.1146 of 2002
and that thereafter this Court passed an order on
26-12-2003 in Application Nos.1144 to 1147 of 2002
and Application No.1409 of 2003.
39. It may be interesting to note that what
was claimed by the 1st respondent herein, in his
Application No.1409 of 2003 was to pass a final
decree in C.S.No.7 of 1958, in respect of land in
Survey No.46, measuring about Ac.84.30 guntas in
Raidurg village, Serilingampalli Mandal, Ranga
Reddy District. In the prayer portion in Application
No.1409 of 2003, the 1st respondent indicated that
the land in Survey No.46 is to be correlated to Item-
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
234 of Schedule-A. But Schedule-A in entirety has
been extracted by us in the preceding paragraph.
Item-234 of Schedule-A as contained in the decree
dated 06-04-1959 merely stated Maktah Raidurg.
Neither any survey number, nor the extent of land
nor even boundaries were indicated in Item-234. In
addition, the common heading given to items-230 to
254 was LIST OF MAKTAS (UNDER APPEAL WITH
REVENUE BOARD).
40. In fact, it is stated in the judgment
rendered on 06-04-1959 in C.S.No.7 of 1958 that it
was a preliminary-cum-final decree. Clause 4(g) of
the decree made it clear that the Commissioners-
cum-Receivers were entitled, for the purpose of
effecting the distribution of properties among the
persons entitled thereto, to sell all the properties
except Items-230 to 254 in Schedule-A. The decree
in respect of Items 230 to 254, was made subject to
the restoration or release of the same by the
Government in favour of Paigah Asman Jahi.
41. In the light of such a clear cut exclusion, in
the decree itself and also in the light of the fact that
item-234 in Schedule-A did not contain any survey
number, description, or extent of land, we do not
know how the 1st respondent herein could have
sought a final decree in respect of S.No.46 to the
extent of Ac.84.30 guntas.
42. In addition, the judgment in the suit very
clearly indicated that the State Government, which
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
was impleaded as the 48th defendant, was given up
and that the suit was dismissed as against the
State Government.
43. But without reference to all this, the 1st
respondent managed to get an assignment in his
favour, recorded by an order dated 09-10-2002 in
Application No.1146 of 2002 and also got a final
decree on 26-12-2003 in Application No.1409 of
2003. This shows that the orders dated 09-10-2002
and 26-12-2003 were obtained completely by fraud.
At the cost of repetition, it should be pointed out,--
a) that the 1st respondent managed to get a
deed of assignment executed in his favour by
the decree holders in C.S.No.7 of 1958,
despite the fact that clause 4 (g) of the decree
did not enable even the Commissioner-cum-
Receiver to sell the land till the lands were
released and restored by the Board of
Revenue;
b) that the 1st respondent managed to identify
a non-descript property and get a final decree
in his favour, in the sense that when the
original decree merely described Item 234 of
Schedule-A as Maktah Raidurg, the 1st
respondent included the whole village of
Raidurg and identified Survey No.46 in the
village; and
c) that despite the fact that the suit was
dismissed as against the State Government,
the 1st respondent sought to compel the
revenue authorities to recognize his title, even
without showing whether or not, the Board of
Revenue ultimately released the Maktah
property in favour of the decree holders.
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
44. As we have stated earlier, there was no
decree against the Government, as the suit itself
was dismissed against the Government. Therefore,
the 1st respondent herein could not have executed
the decree against the Government in a civil court.
Consequently, the Government were not bound to
effect mutation in the revenue records, thereby
forfeiting any claim that they may have, to the
property. On a final decree obtained in the above
fashion, in relation to a property, which could not be
described in the plaint schedule, the 1st respondent
obtained a direction in W.P.No.1729 of 2009. This is
fraudulent. Since fraud vitiates all solemn acts, the
1st respondent cannot seek to enforce such a final
decree through the machinery available to this court
in the contempt jurisdiction.
45. The learned senior counsel appearing for
the 1st respondent highlighted the abortive attempts
made by the Government of Andhra Pradesh to
implead itself as a party to the Civil Appeal in
C.A.No.1121 of 2008 filed by a third party and the
dismissal of the appeal filed by the Government of
Andhra Pradesh in OSA (SR) No. 2116 of 2011.
Therefore, he contended that the Government of
Andhra Pradesh is now bound by the final decree.
46. But, we do not think so. First of all there
was no decree as against the Government of Andhra
Pradesh. The judgment dated 06-04-1959 passed in
C.S.No.7 of 1958, which we have extracted above,
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
shows that the suit was dismissed as against the
Government of Andhra Pradesh. Once a suit is
dismissed as against a party at the stage of
preliminary decree, we do not know how a final
decree will bind the party. In fact, the Government
appears to have been ill-advised to file OSA (SR)
No.2116 of 2011 with a delay of 2633 days, without
realizing that there was no preliminary decree
against the Government. In such circumstances, the
dismissal of the delay condonation petition filed by
the Government of Andhra Pradesh cannot make the
Government of Andhra Pradesh a judgment debtor.
47. As we have pointed out earlier, the
Contempt Case out of which the present appeals
arise, were born out of the alleged failure of the
Tahsildar to implement the orders of this Court in
Application No.1146 of 2002, as directed by this
Court in W.P.No.1729 of 2009. The affidavit in
support of W.P.No.1729 of 2009, which contains the
basis of the claim of the 1st respondent, shows that
the averments therein are actually castles in the air.
In paragraph 2 of his affidavit in support of
W.P.No.1729 of 2009, the 1st respondent claimed
that C.S.No.7 of 1958 was filed by one Smt. Saheb
Jahi Sultan Jahan Begum, in respect of the matruka
properties including the land admeasuring
Ac.209.00 guntas in Survey Nos.1 to 49, situated in
Raidurg village, Serilingampalli Mandal, Ranga
Reddy District, listed at S.No.234 in Schedule-A of
the plaint. But Item 234 in Schedule-A to the plaint
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
did not contain (i) either the extent of land, (ii) or the
survey number, (iii) or the boundaries and (iv) or any
other measure of identification of the property. In
addition, this Item-234 was part of a list of several
properties from S.Nos.230 to 254 listed under the
caption LIST OF MAKTAS (UNDER APPEAL WITH
REVENUE BOARD). Therefore, the very foundation of
the claim of the 1st respondent in W.P.No.1729 of
2009 was illusory.
48. In paragraph 2 of his affidavit in support
of W.P.No.1729 of 2009, the 1st respondent also
claimed that a preliminary decree was passed by
this Court and the decree holders executed a deed of
assignment in his favour, in respect of the land of an
extent of Ac.143.00 guntas forming part of Survey
Nos.1 to 37, 39 to 43 and 45 to 49.
49. But clause 4 (g) of the decree reads as
follows:
(4) that the Commissioners-Receivers shall,--
(a)..(b)..(c)..(d)..(e)..(f)..
(g) for the purpose of effecting the distribution of the
properties among the persons entitled thereto, the
Commissioners-Receivers shall have powers to sell
the said properties by public auction and exercise all
powers necessary for effecting the division of the
same between among defendants 2 to 10 and 14 to
22, each son getting 2/33 and daughter getting
1/33 share in the properties mentioned in Schedule-
A except Items-230 to 254 of this schedule and the
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
items of properties allotted to the plaintiff, 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
Maktas in case the same are restored or releasing in
favour of Paigah Asman Jahi.
50. Therefore, there could not have been an
assignment, by the decree holders, especially when
the Commissioners-Receivers themselves were
restrained from dealing with these items.
51. Once the entire foundation upon which the
claim of the 1st respondent is built, is found to be
shallow, illusory and fraudulent, all the orders built
upon such foundation, should fall like a pack of
cards. We have not heard of an entire village
without any description including survey number
and extent being cited as one of the items in a suit
for partition and we have certainly not heard of
parties alienating indeterminate shares pursuant to
a preliminary decree, which also did not cover these
items.
52. It must be pointed out that there are lot of
applications, writ petitions, Original Side Appeals,
Miscellaneous Petitions, etc., arising out of C.S.No.7
of 1958, which are still pending in a huge batch of
cases. It is only due to the fact that the entire batch
has been specially assigned to this Bench, that we
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
have been able to take judicial notice of all the above
facts including the averments in the plaint, the
judgment in the suit and the list of properties that
formed the subject matter of the suit. We are
conscious of the fact that the learned Judge, against
whose orders the present appeals have been filed,
did not have the benefit of the records in C.S.No.7 of
1958. But we have had the benefit of the records in
that suit, since all matters relating to the said suit
have been assigned specially to this Bench by the
orders of the Honble Chief Justice.
53. It is quite unfortunate that public interest
was sacrificed in this case, with a series of orders
being passed in C.S.No. 7 of 1958 in favour of the
1st respondent from the year 2002, without
reference to the original records in C.S.No.7 of 1958.
It is this series of orders, which led to a chain, with
one leading to the other and the other leading to a
third and so on and so forth which has eventually
left the Government in total wilderness. The
Government against whom the suit was dismissed,
at the instance of the plaintiff, has now become a
major judgment debtor. The lis between the owners
and the Government was left undecided in the suit
and the mere division of the property now in dispute
(Item 234) was made subject to the orders of the
Board of Revenue. If that is so, no Court can compel
the Government to give up their rights and sacrifice
the huge extent of about 100 acres in a prime
locality in favour of third parties to the detriment of
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
public interest. Hence, the Letters Patent Appeal and
the Contempt Appeal are liable to be allowed.
Accordingly, they are allowed and the order of the
learned Judge set aside."
34. Aggrieved by the common judgment in Contempt
Appeal No.33 of 2017 and L.P.A.No.1 of 2018 dated
16.08.2018, the respondent therein filed a Special Leave
Petition in SLP (Civil) No.24646-24647/2018 and the same
was dismissed vide order dated 29.10.2018. Thereafter, the
respondent therein filed Rev.I.A.No.1 of 2020 in
L.P.A.No.1/2018 and Rev.I.A.No.3 of 2020 in C.A.No.33 of
2017 seeking review of judgment dated 16.08.2018. A
Division Bench of this Court disposed of the said review
applications vide order dated 27.04.2022 by dismissing
L.P.A.No.1/2018 by confirming the order of learned Single
Judge in C.C.No.217/2014 in W.P.No.1729 of 2009 dated
04.10.2017.
35. Challenging the said order of Division Bench
dated 27.04.2022, Mr.S.Tirupathi Rao, respondent therein
filed Special Leave Petition before the Hon'ble Supreme
Court. The Hon'ble Supreme Court allowed the said appeal
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
and restored the Contempt Appeal along with Letters
Patent Appeal vide judgment dated 22.07.2024.
ANALYSIS AND CONCLUSION:
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
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
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.
37. In the case on hand, the scope of the
Commissioners-cum-Receivers is to divide the extent of
shares as specified in the para 4(g) to the extent of arrears
of income future income, compensation or commutation or
sale proceeds of the said items 230 to 254 of Schedule 'A'.
It is to be noted that the scope of the preliminary decree in
which such compromise recorded is only for the purpose of
receiving income subject to the condition that they are
restored or released in favour of the Paigah Asman Jahi.
However, the parties have created documents pertaining to
the villages listed in the schedule without there being
inclusion of any lands in items 230 to 254 which is in
contravention to the compromise recorded in the
preliminary decree. As such, there cannot be any scope to
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
parties to file any application under preliminary decree
dated 06.04.1959 in C.S. No.7 of 1958 seeking recognition
and acceptance etc., of any assignment deed and for
passing of any final decree in C.S. No.7 of 1958.
38. Learned counsel for the final decree holders in
Appl.No.519 of 2009 has filed Additional Material Papers
wherein a copy of the order of Commissioner of Survey
Settlement - Inam releasing Maktha lands dated
30.12.1977 was enclosed. However, no document has been
filed to the extent of release order pertaining to the lands in
Schedule 'A' item Nos.230 to 254 mentioned in the
preliminary decree. At this juncture, it is necessary to
verify the list in 'A' Schedule of the preliminary decree. In
the preliminary decree dated 06.04.1959, list of Maktas
(under appeal with Revenue Board) are mentioned which
are as follows:
230. Maktah Bahadur Ali
231. Maktah Ootapalli
232. Maktah Shivarampalli
233. Maktah Balapoor
234. Maktah Raidurg
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
235. Maktah Sough Bowli
236. Maktah Somajiguda
237. Maktah Nawab (Sahah)
238. Maktah Mama Hamukunta
239. Maktah Bagh Kakgud
240. Maktah Hajialigud
241. Maktah Permit Shah Guda
242. Maktah Muzhar Guda
243. Maktah Bagh Mecca ahmoo
244. Maktah Amjad Nagar
245. Maktah Mohammed Nagar
246. Maktah Sangi Guda
247. Maktah Ali Sahab
248. Maktah Chitaguda
249. Maktah Yellakur
250. Maktah Yerwagua
251. Maktah Kol Bowli
252. Maktah Shamshiguda
253. Maktah Rai Samand E
254. Maktah Roshan Bowli
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
39. It is also striking to note that though the orders
were passed by the Commissioner of Survey Settlement -
Inam on 30.12.1977, the so called release of Makta lands
was brought to the notice of this Court for the first time
during the hearing of applications filed for passing of final
decree and delivery of possession of those lands which
have not been included in item Nos.230 to 254 of Schedule
'A' of preliminary decree. It is also pertinent to note that
learned senior counsels appearing on behalf of the
objectors placed heavy reliance on the said release order
dated 30.12.1977. However, no proof of release of Makta
lands pertaining to item Nos.230 to 254 is filed. It is also to
be noted that when the order was passed way back in the
year 1977, the concerned parties ought to have taken steps
to include the extent of lands released if any, in item
Nos.230 to 254 in Schedule 'A' of preliminary decree. The
submissions in respect of such lands in item Nos.230 to
254 were made at the time of hearing objections to the
report of receiver cum commissioner dated 06.07.2023.
40. As such, the submissions made on behalf of the
objectors are unsustainable and in that view of the matter,
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
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.
Accordingly point Nos.1, 2 and 3 are answered against the
objectors.
41. With regard to point No.4, the scope and powers
of the receiver cum commissioner as held in Shree Ram
Urban Infrastructure Limited (supra), the Hon'ble
Supreme Court held that Court Receiver can hold the
properties as custodia legis and can act in a manner as
reasonable prudent trustees and such action on the part of
the Court Receiver is nothing but for preservation of the
property in question. In the case on hand, the Receiver, in
his report reported that there was no property available for
partition in item Nos.230 to 254 of Schedule 'A' of
preliminary decree, and submitted that the applications
filed for delivery of possession, in respect of properties
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
which stood deleted from 'A' Schedule of the preliminary
decree in terms of para 1(d) and para 4 (g) of the
Application under Order 23 Rule 3 of C.P.C., and other
applications requires no further adjudication. It is to be
noted that since no property is available as per item
Nos.230 to 254, the judgment of Hon'ble Supreme Court
(cited supra) is not applicable to the facts of the present
case. Accordingly, point No.4 is answered.
42. Having considered the rival submissions made by
learned senior counsel on both sides and submissions of
receiver cum commissioner, since the lands are not
available physically, the parties may seek their appropriate
remedy as available under law. Accordingly point Nos.5
and 6 are answered.
43. In view of observations made in preceding
paragraphs, the relief sought for in Appl.No.488 of 2012
and Appl.No.24 of 2024 cannot be granted and are
accordingly dismissed. However, liberty is granted to the
applicants therein to avail appropriate remedy as available
under law.
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
44. The report of the receiver cum commissioner
dated 06.07.2023 is hereby accepted to the extent of its
implication of release order of Commissioner of Survey
Settlement - Inam dated 30.12.1977 and the observations
opined by the receiver cum commissioner are hereby
discarded. Though, a preliminary decree has been passed
on 06.04.1959 based on a compromise decree, the
litigation went in respect of non-existing properties for the
last 66 years. In view of the observations made in the
foregoing paragraphs and to put a quietus to the suit of the
year 1958, we deem it appropriate to formally close
C.S.No.7 of 1958. Needless to state that this order shall not
have effect in respect of any proceeding pending before the
Hon'ble Supreme Court.
45. Registry is directed to draft a final decree as per
the order dated 13.02.1970 in Application No.228 of 1969
in the suit in respect of item Nos.1 to 229 of schedule 'A'
and Schedules 'B' 'C' 'D' 'E' and 'F' of preliminary decree
and to engross the same on stamp papers.
HCJ & NVSKJ
Application No.488 of 2012 in
Application No.519 of 2009 and
46. Mohd Bande Ali and Mr.Ajitsimha Rao, receivers
cum commissioners appointed by this Court vide common
order dated 02.01.2023 are hereby discharged as receivers
cum commissioners.
In the result:
Civil Suit No.7 of 1958 is closed.
Application Nos.488 of 2012 and 24 of 2024 are dismissed.
Applications pending, if any, shall be decided in the light of
the observations made above.
However, there shall be no order as to costs.
______________________________________
ALOK ARADHE, CJ
______________________________________
N.V.SHRAVAN KUMAR, J
Date: 09.01.2025
Note: LR copy to be marked.
Mrm/LSK*
