Telangana High Court
Mohammed Shamsuddin Khan vs Mr. B. Subba Rao on 7 March, 2025
THE HONOURABLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
O.S.A. No.2 of 2024 in Application No.1043 of 2011 in C.S. No.7 of 1958
JUDGMENT:
(Per the Hon’ble Sri Justice N.V. Shravan Kumar)
Mr. T.K. Sreedhar for the appellants.
Mr. S. Ganesh and the learned Additional Advocate General for
the respondents.
This Original Side Appeal has been filed under Clause 15 of
Letters Patent aggrieved by the order and final decree dated
30.12.2011 passed by the learned Single Judge of this Court in
Application No.1043 of 2011 in C.S. No.7 of 1958 on the ground that
the same has been obtained by playing fraud on the Court.
2. The appellants herein submits that they are the Defendants
No.4(B)(C)(F)(G) & (H) in Application No.1043 of 2011 in C.S. No.7 of
1958 and the appellants 1, 2, 4 & 5 are represented by their GPA
holder Appellant No.3 vide notarised GPA.
3. For the sake of convenience, the parties hereinafter will be
referred to as they are arrayed in the present appeal i.e. Appellants/
Respondents and respondent/petitioner.
4. The Respondent/Petitioner has filed Application No.1043 of
2011 in C.S. No.7 of 1958 with the following prayer:
HAC, J & NVSK, J
2 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
“Application under order 20 Rule 18 R/2 Sections
146 & 151 of CPC praying that in the
circumstances stated in the affidavit filed
therewith, the High Court may be pleased to pass
a final decree in respect of land admeasuring
Ac.7.00 in Sy.No.57 of Shamshiguda Village,
Ranga Reddy District and direct the registry to
engross the same on appropriate stamp paper,
as per the boundaries given in the schedule
hereunder and grant such other relief as it deems
fit and proper in the circumstances of the case.”
5. The learned Single Judge vide order dated 30.12.2011 allowed
the application to the extent of passing final decree only. Assailing the
same, the appellants/respondents filed the present appeal on the
following grounds:
“1. This application is filed against the order passed in Application 1043 of
2011 in C.S.No.7 of 1958 for passing the Final Decree in favour of Sri.
B.Subba Rao, S/o Late B. Appa Rao, on the basis of Unregistered Sale Deed
dated 23/2/1982 said to have been executed by Defendant No.
2,3,7,8,10,11,12,14,15,17,19 & 20 in C.S.No.7 of 1958 for an extent of
Ac.7-00 of land in Sy.No.57 of Shamshiguda Village, item No.252 of Schedule
‘A’ attached to preliminary decree in C.S.No.7 of 1958, and the Hon’ble Court
was pleased to pass an order on 30th December 2011, and the same is
assailed on the following grounds:
2. That the Appellant submits that the order dated 02/12/2011 passed in
Application No.1043 of 2011 is illegal void and contrary to the principles of
law and ex facie fraudulent.
HAC, J & NVSK, J
3 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
3. That the Appellant submits that the Final Decree is passed on a false
affidavit showing an unregistered Sale Deed dated 23/2/1982 and there is no
mention of validation of the said unregistered Sale Deed, dated 23/2/1982
and any validation cannot be a basis for Title and unregistered Sale Deed
does not confer Title and it is nothing but a paper transaction without creating
any rights as per Laxman Das Vs. Ramlal 1989 (3) SCC 99.
4. The Appellant submits that unregistered document is inadmissible and hit
by section 17 of the Registration Act, 1908 and the same is illegal and it
prohibits the user of the documents for establishing any rights, Title or interest
for any immovable property as per Umde Bhojram vs Wadla Gangadhar 2004
(2) ALD 339-2004 (2) ALT 367-2004 (1) LS 415-2004 (2) APLJ 200(HC)= 2004
(2) ICC 800 (A.P) = 2004 (3) CCC 193(A.P) See also (1) G.Lalitha Kumari vs B.
Neela Kantham 2004 (2) ALD 315= 2004 (1) LS 326 = 2004 (1) An W.R.378
(A.P) =2004 (2) ICC 776 A.P. Korukonda Chalapathi vs Korukonda Annapurna
Sampath Kumar 2021 (SCC) on Line SE 847. Any document which is
compulsorily registerable under Section 17-1(b), the said document cannot be
admitted in evidence nor decree can be passed in terms of the same. Ramesh
Kumar Vs Furu is Ram and another 2012 (1) ALD 53(SC). When rights
pertaining to an immovable property are relinquished through a document, the
document is compulsory registerable and if the document is not registered it is
inadmissible in evidence Rami Reddy vs Yella Reddy 1961 Andhra Weekly
Reporter 16 NRC full bench and also as per Laxmi Narasimha vs Venkat
Reddy 2013 4(ALT) 3003. Once the document by itself brings about severance
of Status it is liable to be registered under Section 17 of the Registration Act.
G. Udaya Kiran Reddy vs Rama Krishna Reddy 2011 – 3(ALD) 54. Unless the
document is registered in accordance with Law no presumption can be drawn
HAC, J & NVSK, J
4 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
for it is properly executed, Bellachi (dead) by LRs Vs. Pakeeran 2009-12(SCC)
95 Suraj Lamps and Industries Pvt Ltd vs Sate of Haryana 2009 (7) SCC-363
and Narendra Khante vs Anuradha Khante 2010-1(ALT).
5. The appellant submits that as per the terms of unregistered Sale Deed
dated 23.02.1982 also it is mentioned in page 5, clause 2 that the vendors
after receipt of full consideration amount have delivered the actual, vacant and
peaceful physical possession of the schedule property to the vendee to hold
and to have the same as absolute owners forever. As such the so called
executors putting the vendees into possession for AC.7-00 falling in
boundaries as per the following Schedules:
SCHEDULE-A
All that land to an extent of Ac.3.00 guntas in Survey No: 57 (part) of
Shamshiguda Village, Balanagar Mandal, Ranga Reddy District bounded by
North: Hitension Line
South: Part of Land In Survey No.57.
East: Part of Land in Survey No. 57
West: Katcha Road.
SCHEDULE-B
All that land to an extent of Ac.2-20 gunts in Survey No.57 Shamshiguda
Village, Balanagar Mandal, Ranga Reddy District bounded by
North: Katcha Road
South: Hitension Line
East: Part of Land in Survey No.57.
West: Katcha Road,
HAC, J & NVSK, J
5 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
SCHEDULE-CAll that land to an extent of Ac.1.20 guntas in Survey No.57 (part) of
Shamshiguda Village, Balanagar Mandal, Ranga Reddy District bounded by
North: Part of Survey No. 57
South: Part of Survey No.57.
East: Katcha Road
West: Part of Survey No.57.
does not arise at all as their preliminary decree adjudication with C.S. No.7 of
1958. That it is a settled principle of law was that persons who are capable of
conveying the Title and possession can alone do so, but the so-called vendors
had a symbolic Title but no actual physical possession. That really so the said
Sale Deed dated 23/2/1982 which was relied upon there is no need for filing
an application No.1045 of 2011 seeking once again Final Decree and
possession based on the Advocate-cum-Receiver cum Commissioners Scheme
of Partition Report.
6. The Appellants submits that the Schedule allegedly given by the vendors for
AC.7-00 by the Defendants No’s.2,3,7,8,10,11,12, 14,15,17, 19 & 20 in C.S.
No.7 of 1958 is vague and absolutely unclear and by that time no report of the
Receiver-cum-Commissioners is existing and once the Receiver-cum-
commissioners was approved by the Hon’ble High Court on 17-07-2009 the
claim of the vendors and vendee of unregistered Sale Deed if any dated
23/02/1982 shall be in accordance with the shares allotted as per the Survey
Map submitted by the Receivers-cum Commissioners only.
HAC, J & NVSK, J
6 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
7. The appellant submits that a crystal-clear inference can be drawn that the
Vendors and Vendees played fraud on the statute and on the Court. The said
fraud came to the knowledge of the petitioner on 23/07/2023 when the
vendee B. Subba Rao, S/o. Late B. Appa Rao represented by his daughter and
G.P.A holder namely Mrs. P.Krishna Priya W/o P. Venkateswara Rao is
trespassing into the Land of the appellant allotted by the Receiver Cum
Commissioner in favour of Defendant No.4 and trying to erect fencing with
steel sheets. As such a report was given to the Station House Officer
Jagadgirgutta Police Station, Hyderabad on 25/07/2023 explaining fraud,
cheating and forgery by the vendors and vendees.
8. The appellants submits that Prima facie reading of the Sale Deed shows
that it is unregistered and at Page 3, Para 6 of the Application No: 1043 of
2011 dated 29th day of November 2011, the Sale Deed dated 23/02/1982
was referred, giving an impression as if it is a registered Sale Deed which act
itself is a fraudulent one which amounts to gross misrepresentation before the
Hon’ble Court thus amounts to palpable fraud.
9. The appellants submits that after 29 years of alleged Execution of Sale
Deed dated 23/02/1982, the same was validated on 26/11/2011 Vide No:
3620/AR/2011 at District Registrar office, Ranga Reddy District. Hyderabad
which does not amount to Registration at all and the same is hit by Section 17
of the Registration Act 1908 and the validation has no value in the Eye of
Law, that too done in the absence of original Executants by way of a
registered Sale Deed. A Confirmation cum Ratification Deed was executed on
28.12.2011 at SRO, Kukatpally, Ranga Reddy District vide Document No.
5979/201l on the basis of unregistered Sale Deed dated 23.02.1982, which
does not amount to Registration and hit by Section 17 of the Registration Act,
HAC, J & NVSK, J
7 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
1908. A bare reading of this document shows that the Executants of this Deedare different from that of unregistered Sale Deed dated 23.02.1982.
10. The appellants submits that any other documents registered or
unregistered are not brought to the notice of the court in Application No. 1043
of 2011 for passing final decree and any Acts done will not give affect to the
Final Decree which was obtained by playing fraud.
11. The appellant submits that he is the defendant No. 4(f) in Application No.
1043 of 1958 in C.S.No.7 of 1958 in the Hon’ble High Court of Telangana and
Legal Heir of Defendant No.4 by name Late. Nawab Mohammed Lateefuddin
Khan in respect of Matruka properties of Asia Jahi Paigah Estate. And as per
the Preliminary Decree in C.S.No.7 of 1958 in the Hon’ble High Court of
Telangana the Legal heirs of Nawav Moin-ud-Dowla Bahadur of Asman Jahi
Paigah who are defendants 2 to 22 in C.S.No.7 of 1958 are entitled to shares
in Item Nos.230 to 254 in Schedule ‘A’ Annexed to preliminary decree, each
male member getting 2/35 share and each female member getting 1/35 share
in the properties. The preliminary decree dated 06.04.1959 is filed herewith in
which Shamshiguda is Item No.252 of Schedule ‘A’ annexed to preliminary
decree.
12. The appellants submits that Survey No.57 of Shamshiguda village, is item
No: 252, Schedule ‘A’ annexed to preliminary decree in C.S.No.7 of 1958,
dated 06/04/1959, belongs to Asman Jahi Paigah Estate. Whereas, the
scheme of partition for Maqta Shamshiguda was submitted by Mr. M. A. Bari
& Mr. Shyamsunder, Advocates, Receiver-cum-Commissioners in respect of
item No: 252 Shamshiguda, of schedule ‘A’ Annexed to the preliminary decree
in C.S.No.7 of 1958 as directed by the Hon’ble Court of Andhra Pradesh by
HAC, J & NVSK, J
8 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
order dated 15/10/2008 in Application S.R.No: 3679 & 5917 of 2007. And the
scheme of partition was presented to the Hon’ble High Court in favour of
Defendents No’s. 2 to 22 i.e., Son’s and Daughters of Nawab Moin-ud-Daula
Bahadur. The total extent of land in Survey No.57, Shamshiguda village, as
per the scheme of Partition submitted and allotted to Defendant No’s.2 to 22 is
AC.303-91 gts. And the Scheme of Partition was approved by the Hon’ble High
Court on 17.07.2009 in Application No.495 in C.S.No.7 of 1958. As per the
Scheme of Partition, approved by the Hon’bel High Court and the Survey Map
showing the scheme of partition, defendant No.4 was allotted shares as
separate bits and marked in the map as follows :
1. 914-647 cents (9.146 Acres)
2. 668-16 cents (6.681 Acres)
3. 107-14 cents (1.071 Acres)
4. 24-110 cents (0.241 Acres)
5. 14-290 cents (0.142 Acres)
6. 8-389 cents (0.083 Acres)
13. The appellants reserve their right to raise any other grounds at the time of
hearing.
KNOWLEDGE :
a. That the appellants came to know about the magnitude of fraud on
25.07.2023 when respondent No.1 tried to encroach upon the allotted property
of the petitioner. The earlier round of litigation in Application No. 1043/2011,
the petitioner / appellant filed objection petition, which was not considered by
this Hon’ble Court on a bonafide impression that as if the petitioner /
appellant had share which was not affected and which he can contest. But
HAC, J & NVSK, J
9 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
subsequently, as per the illegal acts, the passage of final decree is ex-facieillegal and caused severe prejudice to the petitioner / appellant and in such a
situation, the Hon’ble Court is under obligation to undo the wrong done to a
party by the Act of the Court as per the established legal maxim “Actus Curiae
Neminem Gravabik” which means that the act of the Court shall prejudice no
one, becomes applicable in such a case. In such a case, the Court is under
obligation to undo the wrong done to a party by the Act of the Court.
b. As per the Judgement in Inderchand Jain (Dead) through LRs vs. Motial
(Dead) through LRs (2009) 14 SCC 663, wherein the Hon’ble Supreme Court
held that the said Maxim is established upon justice and equity and help in
the law administration.
The Court observed hence;
This well settled position need not detain us, when the second point
urged by the appellant is focused. There can be no quarrel with the proposition
as noted by the Hon’ble High Court that a party cannot be made to suffer on
account of an act of the Court. There is well recognized maxim of equity;
namely “actus curiae neminem gravabit” which means an act of the Court
shall prejudice no man. This maxim is founded upon justice and good sense,
which serves a safe and certain guide for the administration of law.
c. And also as per Judgment in UPSRTC vs. Imityaz Hussain 2006 (1) SCC
380 the said maxim was analyzed.
d. And also as per Judgment in Orissa Development Corporation VS. Anupam
Traders, no party should suffer due to Act of Court.
HAC, J & NVSK, J
10 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
FRAUD:
a. And as per legal maxim “Fraus est calare fraudam” it is fraud to conceal a
fraud. And also “Justice nemini neganda est” justice is to be denied to nobody.
Maxim – The fraud and justice will never dwell together as per legal maxim
“Fraus et jus nunquam cohabitant” which is relied upon by the Hon’ble
Supreme Court in United India Insurance Co. vs. Rajender Singh and others
Manu/SC/0180/2000.
b. And also compulsory registration of conveyance of immovable property
U/s.49 & 17 of the Registration Act, 1908 as per Suraj Lamps and Industries
Pvt. Ltd. through Director vs. State of Haryana (2009) 7 SCC 363.
Fraud on Court : Parties must come before the Court with clean hands and
fraud on the Court whereby the Judgment and Decree obtained by playing
fraud will be a nullity including consent decree obtained by fraud. Hence such
decree and also all subsequent Judgements and Decrees passed on claims of
Right, Title, interest and possession based on decree which is vitiated by
fraud liable to be set aside Badami (deceased) by LRs Vs, Bali (2012) 1I SCC
574.
c. Any Judgment or Order obtained by playing fraud is a nullity and it can be
challenged at any stage, at any time in appeal, revision, writ Or even in
collateral proceedings as per Hon’ble Supreme Court Judgment in A.P.
Papayya Sastry and Others vs. Government of A.P. and others (2007) 4 SCC
221.
d. The Judgment or Decree obtained by fraud to be treated as nullity and can
be questioned even in collateral proceedings. Non-disclosure of relevant
HAC, J & NVSK, J
11 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
documents with a view to obtain advantage amounts to fraud. Held decree
obtained by non-disclosure of release deed amount of fraud on Court and
hence decree liable to be set aside (1994) 1 SCC S.P. Chengalavarai Naidu
(dead) by LRs vs. Jagannath (dead) by LRs.
PRAYER:
It is therefore prayed that this Hon’ble Court may set aside the Order
and Decree made in Application No.1043/2011 in C.S.No.7/1958, dated
20.12.2011, on the file of this Hon’ble Court, as the same was obtained by
playing fraud on the Court: In the interest of justice, this Hon’ble Court by
allowing this appeal may be pleased to pass such other order and orders as
may deem fit and proper in the circumstances of the case.”
6. Heard the learned counsel for the parties and perused the
material made available on the record.
7. For better appreciation, it is necessary to extract the order dated
30.12.2011 passed in Application No.1043 of 2011 in C.S. No.7 of
1958 by the learned Single Judge.
“This is an application for passing of final
decree in favour of the applicant in respect of the
application schedule lands admeasuring Ac.3-00
guntas, Ac.2-20 guntas and Ac.1-20 guntas in
Sy.No.57 (Part) of Shamshiguda Village, Balanagar
Mandal, Ranga Reddy District, with the
boundaries as stated in the affidavit filed in
support of the application.
HAC, J & NVSK, J
12 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
The applicant has purchased the said
extents of lands from Defendant Nos.2, 3, 7, 8, 10,
11, 12, 14, 15, 17, 19 and 20 under a registered
sale deed dated 23.02.1982 and as a purchaser,
the present application is filed seeking passing of
final decree.
It is seen that the land in Sy.No.57 of
Shamshiguda Village is the suit schedule property
in C.S.No.7 of 1958 and the Advocate-Receiver
has submitted a report showing the division of the
shares of the defendants in the main suit. I have
made a reference to the said report while passing
order in Application No.495 of 2009. I had also
referred to the judgment of the Apex Court
relating to law about passing of final decree in
partition suits.
Since the partition suit is pending till final
decree is passed, the parties, if aggrieved, by any
final decree application are supposed to file
objections. In the present case, some of the legal
representatives of Defendant No.4 have filed
counter affidavit wherein it is stated that they are
not parties to the sale deed of the applicant and
hence, they are objecting for passing of final
decree.
I have already observed that while passing
orders in Application No.495 of 2009 that if any
person who has a share as per the preliminary
decree can seek a final decree, and they are at
liberty to file such an application. In so far as the
present application is concerned, Defendant No.4
is not his vendor and hence, the objections filed
on behalf of Defendant No.4 do not have any effect
HAC, J & NVSK, J
13 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
on the entitlement of the applicant for passing
final decree.
It is seen from the proceedings of the suit
that C.S.No.7 of 1958 was filed for partition of the
Matruka properties of Asman Jahi Paigah and this
Court passed a preliminary decree in the suit on
06.04.1959 in determining the extent of shares of
the parties to the suit. As per the preliminary
decree, an Advocate-Receiver was appointed for
preparing a scheme of partition for the purpose of
dividing the lands and properties and for
allotment of the same to the respective sharers. It
is settled law that a purchaser from a sharer steps
into the shoes of the sharer and hence the
purchaser is entitled to file an application for
passing of final decree.
It is on record that the Advocate-Receiver
appointed by this Court has submitted a scheme
of partition in respect of Item No.252
(Shamshiguda) of Schedule-A of the suit and the
report of the Advocate-Receiver dated 12.03.2009
which is accompanied by a plan showing the
division of land and the said report has referred to
the entire extent of land in Sy.No.57 Shamshiguda
and it has also taken into account the present
final decree application along with the other
applications which are all concerned with the land
in Sy.No.57 of Shamshiguda.
Heard the learned counsel for the
applicants, the learned counsel appearing for the
objection petitioner and Sri M.A.Bari, learned
Advocate-Receiver appointed by this Court.
HAC, J & NVSK, J
14 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
There is no dispute about the acquisition of
right by the applicant and the objection petitioner
has not made any claim for passing of final decree
for the share which he has got as per the
preliminary decree. I do not find any specific
objection to the prayer in the present application.
It is open to the objection petitioner to come
forward with an application for final decree for the
extent of share, if any, which he got under the
preliminary decree. Hence, the objection for
passing of final decree in favour of the applicant is
devoid of any merit.
The learned Advocate-Receiver has
submitted that the applicant herein has become
entitled to final decree since his vendors were
sharers in the preliminary decree and as per the
sketch annexed to the report, the application
schedule land is clearly delineated with
boundaries. Since the report of the Advocate-
Receiver was already approved by this Court on
17.07.2009 (as per the orders passed by my
learned brother P.S.Narayana,J), the present
application is allowed and a final decree is passed
for the application schedule land and the Registry
is directed to issue the same after engrossment of
stamp papers.
In the result, the application is accordingly
allowed. The fee of the Advocate-Receiver is fixed
at 2% of the basic value depicted in the basic
value register, which shall be payable by the
applicant at the time of delivery of possession.
Registry is directed to append a copy of the
order passed Application No.495 of 2009 to this
order.”
HAC, J & NVSK, J
15 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
8. The aforesaid order was followed by the decree dated
30.12.2011 drafted in Application No.1043 of 2011 in C.S. No.7 of
1958, which reads as under:
“1. That this Application be and hereby is allowed
and final decree is passed for the application
schedule land,
2. That the applicants herein be and hereby are
entitled and a final decree since his vendors were
sharers in the preliminary decree as per the
sketch annexed to the Report, the applications
schedule land is clearly delineated with
boundaries.
3. That a final decree be and hereby is passed in
respect of land admeasuring Ac.7.00 in Survey
No.57 of Shamshiguda Village, Balanagar Mandal,
Ranga Reddy District, with the boundaries as
stated in the affidavit filed in support of this
application.
4. That the fee of the Advocate Commissioner-
cum-Receiver is fixed at 2% of the basic value
depicted in the basic value register, the fee is
payable by the applicant at the time of delivery
possession.
5. That the final decree to be engrossed on the
requisite stamp papers, as per the boundaries
given in the Schedule hereunder and the same be
issued after engrossment of stamp papers.
HAC, J & NVSK, J
16 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
Schedule-A
All that land to an extent of Ac.3.00 guntas
in Survey No.57 (part) of Shamshiguda Village,
Balanagar Mandal, Ranga Reddy District bounded
by
North : Hitension Line
South : Part of Land in Survey No.57.
East : Part of Land in Survey No.57
West : Katch Road
Schedule-B
All that land to an extent of Ac.2.20 guntas
in Survey No.57 (part) of Shamshiguda Village,
Balanagar Mandal, Ranga Reddy District bounded
by
North : Katcha Road
South : Hitension Line.
East : Part of Land in Survey No.57
West : Katch Road
Schedule-C
All that land to an extent of Ac.1.20 guntas
in Survey No.57 (part) of Shamshiguda Village,
Balanagar Mandal, Ranga Reddy District bounded
by
North : Part of Survey No.57
South : Part of Survey No.57.
East : Katcha Road
West : Part of Survey No.57"
9. At this juncture, it is significant to note that the Division Bench
of this Court vide order dated 09.01.2025 closed the C.S. No.7 of 1958
wherein at para No.36 observed as under:
HAC, J & NVSK, J
17 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
“36. On a perusal of the paragraph 4(g) of the
preliminary decree dated 06.04.1959, it is evident
that the defendant Nos.2 to 22 were entitled to the
properties mentioned at item Nos.230 to 254 of
Schedule ‘A’ annexed to the preliminary decree, in
case the same are restored or released in favour of
Asman Jahi Paigah. In the instant case,
admittedly, there is no material to indicate that
the properties mentioned at serial No.230 to 254
of Schedule ‘A’ to the preliminary decree have
been restored or released in favour of Asman Jahi
Paigah. It is pertinent to note that as per para 4(g)
of the preliminary decree dated 06.04.1959, the
Commissioners-cum-Receivers have the power to
sell the property by way of public auction and
exercise all powers necessary for effecting the
division of the sale between the defendants No.2
to 12 and 14 to 22. Accordingly, each son would
get 2/33 and each daughter would get 1/33 in the
properties of Schedule ‘A’ except items 230 to 254
of the Schedule and items of properties allotted to
the plaintiff. The defendant Nos.2 to 22 will get
their share, namely, each son getting 2/35 and
each daughter getting 1/35 from the arrears of
income future income, compensation or
commutation or sale proceeds of the items 230 to
254 of Schedule ‘A’ detailed under the head of
“Makthas” in case of the same are restored or
released in favour of Paigah Asman Jahi.”
10. It is not out of place to note here that the learned counsel
Mr. T.K. Sreedhar appearing for the appellants herein represented in
C.S. No.7 of 1958 wherein he made the following submission,
which reads as under:
HAC, J & NVSK, J
18 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
“…. Mr.T.K.Sridhar, learned counsel for the legal
representatives of defendant No.4 in the suit and
for respondent No.4 in application No.24 of 2024
submitted that the report dated 06.09.2023
submitted by the receiver cum commissioner in so
far as it pertains to lands mentioned in Sl.
Nos.232 to 254 is required to be rejected. Learned
counsel further submitted that the receiver cum
commissioner appointed by this Court ought to
have appreciated that the final decree cannot be
passed in application Nos.1409 of 2013 and 837
of 2013 as the unregistered assignment deeds
were executed and a title in respect of the
immovable property cannot be passed on the basis
of the unregistered document. Therefore, the
application seeking final decree at the instance of
the applicants in application Nos.1409 of 2013
and 837 of 2013 is not maintainable and it is also
pointed out that the receiver cum commissioner
has cursorily prepared the report and ought to
have examined the issue in greater detail as the
Government is in possession of some of the lands
covered under the preliminary decree.”
11. The subject property under appeal is in respect of Item No.252
falling in Schedule ‘A’ of the preliminary decree dated 06.04.1959 and
the land admeasuring Ac.7.00 in Sy.No.57 (part) of Shamshiguda
Village, Balangar Mandal, Ranga Reddy District is schedule property
of the suit in O.S. No.7 of 1958. The Division Bench of this Court vide
order dated 09.01.2025 had closed the C.S. No.7 of 1958 wherein at
Para No.40 observed that “As such, the submissions made on behalf of
the objectors are unsustainable and in that view of the matter, it can
HAC, J & NVSK, J
19 OSA. No.2 of 2024
in
Application No.1043 of 2011
in
C.S. No.7 of 1958
safely be concluded that no lands are available for partition in item
Nos.230 to 254 of Schedule ‘A’ attached to the preliminary decree. In
the absence of preliminary decree for item Nos.230 to 254 in Schedule
‘A’, no final decree could have been passed. Therefore, reports filed
earlier are without proper verification, are fictitious and the same are
treated as nullity and are hereby rejected.”
12. Since the C.S. No.7 of 1958 was closed with specific observation
that no lands are available for partition in Item No.252 and the
subject land i.e. admeasuring Acs.7.00 in Survey No.57 of
Shamshiguda Village, Balangar Mandal, Ranga Reddy District,
in Application No.1043 of 2011 in C.S. No.7 of 1958 as such,
no further adjudication is required in this appeal.
13. Accordingly, this O.S.A. No.2 of 2024 in Application No.1043 of
2011 in C.S. No.7 of 1958 is disposed of leaving it open to the parties
to pursue their remedies as available under law, if they so feel
aggrieved by this order. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall
stand closed.
___________________________
SUJOY PAUL, ACJ
___________________________
N.V. SHRAVAN KUMAR, J
Date: 07-03-2025
LSK