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