M-S TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC

Citation: [2023] 8 S.C.R. 283

Court: Supreme Court of India

Bench: V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.

Judgment text

SUPREME COURT OF INDIA M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. Civil Appeal Nos. 4049-4053 of 2023 M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. (Civil Appeal Nos. 4049-4053 of 2023) JUNE 15, 2023 [V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ. ] Suit - Partition suit - Decree - Preliminary decree - Mathruka property - Whether on facts, the Division Bench of the High Court was right in declaring that the preliminary decree dated 28. 06. 1963 was vitiated by fraud and consequently null and void, especially when there was no pleading and no evidence let in - Held: The preliminary decree dated 28. 06.

1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties - Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties - The manner in which the judgment and preliminary decree dated 28. 06.

1963 were sought to be used, abused and misused by parties to the proceedings as well as non-parties who jumped into the fray by purchasing portions of the preliminary decree and seeking to execute them through Court, defeating the rights of third parties, is what has prompted the Division Bench of the High Court to hold that the preliminary decree is vitiated by fraud - What was a simple suit for partition; and the incidental finding recorded that the properties were Mathurka properties, have been used by parties and non-parties to assert title to the properties against strangers - This was definitely an abuse of the process of law - The judgment and preliminary decree dated 28. 06. 1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and whatever was done in pursuance of the preliminary decree was an abuse of the process of law.

Suit - Decree - Preliminary decree - 'Paigah' Estate - Mathruka property - Whether on facts, the concurrent findings of the Single Judge and the Division Bench of the High Court that Khurshid Jah 283 a 'Paigah' grantee, did not leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree that has attained finality - Whether the finding recorded in the judgment and preliminary decree that the lands in question are Mathruka property was binding upon third parties - Held: No finding was ever recorded by the Trial Judge in his judgment dated 28. 06.

1963 that the properties left behind by Khurshid Jah were Mathruka properties - Therefore, the contention as though there was such a finding and that the finding has attained finality and that the impugned Judgment goes contrary to such a finding, is wholly misconceived - The Single Judge as well as the Division Bench (in the impugned judgment) were right in holding that the properties were not established to be Mathruka properties - The effect of the order of the Nazim Atiyat was not examined by the Trial Judge - In any case, such an examination had to be done independently and not in a partition suit, keeping in view, the 1955 Act and various subsequent enactments relating to agricultural land reforms and urban land ceiling - When the entire claim of the appellants that the properties were Mathruka properties inheritable by the legal heirs had failed, the question of executing a decree on the strength of the plea that the property is a Mathruka property does not arise - The predecessors of the appellants have had knowledge that faisal patti were recorded in the name of the claim petitioners in 1978 itself - Even the Receiver was aware of this, as seen from the letter written by the Receiver on 09.

04. 1980 to the Collector - It is too late in the day for the appellants to question as to how the claim of the claim petitioners stood established. Code of Civil Procedure, 1908 - Order XXI, rr. 97- 101 - Enquiry under - Scope of - Held: In an enquiry under Order XXI, rr. 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves - All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists / claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit - If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings. M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC.

Suit - Partition suit - Preliminary decree - Effect of - Held: 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 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 - Code of Civil Procedure, 1908 - Order XX, r.

18(2); Order XXVI, r. 14(3) and Order XXI, r. 35. Suit - Partition suit - Held: In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim. Disposing of the appeals, the Court HELD: 1. The way in which the suit claim has been valued and court-fee paid, demonstrates very clearly that it was not a suit for declaration of title to any property. It was only a suit for partition. All the suit schedule properties have been valued at a particular rate and courtfee was paid on the value of the share, of which the plaintiff was seeking partition. If it was a suit containing a prayer for declaration of title, the court-fee was liable to be paid on the whole value of the property and not on the share sought to be partitioned. Therefore, the preliminary decree dated 28. 06. 1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties.

Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties. [Paras 119 & 120][341-E-H] 2. Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, the judgment and preliminary decree dated 28. 06.

1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. Also, in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC. [Para 126][344-E-H; 345-A] 3. The judgment and preliminary decree dated 28. 06.

1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. In an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings. [Para 139][348-D-G] M/s TRINITY INFRAVENTURES LTD.

& ORS. ETC. v. M. S. MURTHY & ORS. ETC. 4. Since everyone focused attention only on Hyderabad Jagir Abolition Regulations, 1948 and a contention was raised that the personal properties of the Jagirs were exempt under Section 18, no one ever examined the impact of 1955 Act. Even if the property in question escapes the guillotine under the Jagir Abolition Regulations, it may meet its fate under the 1955 Act. Therefore, the Single Judge as well as the Division Bench were right in holding that the properties were not established to be Mathruka properties. The effect of the order of the Nazim Atiyat was not examined by the Trial Judge. In any case, such an examination had to be done independently and not in a partition suit, keeping in view, the 1955 Act and various subsequent enactments relating to agricultural land reforms and urban land ceiling. [Paras 159 & 160][355-B-E] 5.

When the entire claim of the appellants that the properties were Mathruka properties inheritable by the legal heirs had failed, the question of executing a decree on the strength of the plea that the property is a Mathruka property does not arise. [Para 166][356-F-G] NSS Naryana Sarma v. M/s Goldstone Exports Private Ltd. (2002) 1 SCC 662 : [2001] 5 Suppl. SCR 327; Venkata Reddy v. Pethi Reddy AIR 1963 SC 992 : [1963] 2 Suppl. SCR 616;Raja Ram Chandra Reddy v. Rani ShankarammaAIR 1956 SC 319;Sikander Jehan Begum v. Andhra Pradesh State Government AIR 1962 SC 996 : [1962] 2 Suppl. SCR 226;State of Andhra Pradesh (Now State of Telangana) v. A. P. State Wakf Board2022 SCC OnLine SC 159; Mohd. Habbibuddin Khan v. Jagir Administrator, Government of Andhra Pradesh (1974) 1 SCC 82;Rangammal v. Kuppuswami (2011) 12 SCC 220 : [2011] 6 SCR 835; National Textile Corporation (Maharashtra South) Ltd. v. Standard Chartered Bank(2000) 10 SCC 592 and Lachhman Dass v.

Jagat Ram and Others(2007) 10 SCC 448 : [2007] 2 SCR 980 - referred to. Case Law Reference [2001] 5 Suppl. SCR 327 referred to Para 78 AIR 1956 SC 319 referred to Para 99(vii) [1962] 2 Suppl. SCR 226 referred to Para 99(vii) (1974) 1 SCC 82 referred to Para 99(vii) [2011] 6 SCR 835 referred to Para 99(ix) (2000) 10 SCC 592 referred to Para 104 [2007] 2 SCR 980 referred to Para 104 [1963] 2 Suppl. SCR 616 referred to Para 188 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4049- 4053 of 2023. From the Judgment and Order dated 20. 12. 2019 of the High Court for the State of Telangana at Hyderabad in OSA Nos. 54, 56, 57, 58 and 59 of 2004. With Civil Appeal Nos. 4054, 4055-4058, 4059, 4060, 4061-4064, 4065, 4066, 4067 and 4068-4072 of 2023. Gopal Sankarnarayanan, V. V. S. Rao, K. S. Murthy, P. V. Surender Nath, C. S. Vaidyanathan, B Adinarayana Rao, Ranjit Kumar, Hemendranath Reddy, Sr. Advs. , Mandeep Kalra, N M Krishnaiah, Ms. Radhika Narula, Ms. Divya Singh Pundir, Rishabh Lekhi, Ms.

Tanya Singh, Ms. Anushna Satapathy, Anand Sanjay M. Nuli, Suraj Kaushik, Nanda Kumar K. B. , Shiva Swaroop, M/s. Nuli & Nuli, Santosh Krishnan, V N Murthy, Ms. Deepshikha Sansanwal, Tadimalla Bhaskar Gowtham, Sandeep Singh, D. Srinivas, A. V. S. Raju, Mrs. Lekha Sudhakaran, S. Senthil Kumar, V. Senthil Kumar, M. Venkatesulu, Raghavendran, M. Sriharibabu, M. A. Chinnasamy, Sriharsha Peechara, Rajiv Kumar Choudhry, Ms. Pallavi, Duvvuri Subrahmanya Bhanu, Vinayak Goel, Byrapaneni Suyodhan, Bharat J Joshi, Kumar Shashank, Abhijit Basu, Ms. Tatini Basu, Rohan Divan, Balaji Srinivasan, V. V. S. Rao, K. S. Murthy, Mullapudi Rambabu, K. Venkat Rao, M/s. M. Rambabu and Co. , Rajnish Kumar Jha, Ms. Jasmine Damkewala, Ms. Anu Gupta, Kaushal Yadav, Nandlal Kumar Mishra, Ms. Yashoda Katiyar, Arjun Raghuvanshi, Ritul Tandon, Ram Kishor M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. Singh Yadav, Namit Saxena, Awnish Maithani, Prashanth Reddy, Shivam Raghuwanshi, Ms.

Shiksha Ashra, Suyash Vyas, Kumar Shashank, Nivesh Kumar, Ms. Suditi Singh, Nitish Rai, Piyush Tonk, Vishal Prasad, Advs. for the appearing parties. The Judgment of the Court was delivered by V. RAMASUBRAMANIAN, J. Permission to file special leave petitions is granted in Diary No. 19266 of 2022. 2. Delay condoned. 3. Leave granted. 4. Aggrieved by a common judgment rendered by the Division Bench of the High Court for the State of Telangana in a batch of intra- Court appeals, confirming the judgment of the learned Single Judge of the High Court in a batch of applications in a civil suit, various parties including the State of Telangana and some third parties have come up with these civil appeals. 5. We have heard Shri Gopal Sankarnarayanan, learned senior counsel appearing for one set of parties who are the appellants herein (and who claim to be the assignees of the decree), Shri B.

Adinarayana Rao, Shri Chander Uday Singh, Shri Ranjit Kumar, learned senior counsel and Shri Santosh Krishnan, learned counsel appearing for parties who obstructed the execution of the decree (claim petitioners) and who succeeded before the High Court, Shri C. S. Vaidyanathan, learned senior counsel appearing for the State of Telangana and Shri V. V. S. Rao, Shri Hemendranath Reddy and Shri K. S. Murthy, learned senior counsel appearing for third parties and Shri Dushyant Dave, learned senior counsel appearing for an Asset Reconstruction Company which has filed an application for intervention. Background Facts: 6. Hyderabad was a Princely State until it came to be annexed to the Union of India on 18. 09. 1948 through police action which came to be popularly known as "Operation Polo. " HEH the Nizam was its Ruler till then.

While outsourcing is something which we have now come to be familiar with only in the twentieth century, HEH the Nizam seems to have adopted the practice of outsourcing even defence services more than 200 years ago. It seems that the Nizam had the practice of granting certain lands to people for the purpose of supply and maintenance of Armed Forces. The lands so granted came to be known as "Paigah Estate. "The dispute on hand relates to a Paigah granted to a person by name Khurshid Jah and the grant came to be known as Khurshid Jah Paigah. To understand the nature and sweep of the dispute on hand, it may be relevant to take a peep into history. 7. It appears that one Mir-Qamar-ud-din Khan (who was given the title Asaf Jah) was one of the feudal chiefs of the Moghuls and was the Governor of Deccan from 1713 to 1721. Later he proclaimed independence and founded the Asaf Jahi dynasty in Hyderabad. 8.

As stated by Gribble in his "History of Deccan", Asaf Jah brought with him a number of followers, both Mohammadens and Hindus, who were attached to his person and fortunes. To the Mohammedan nobles, he granted Jagirs or estates on military tenure and employed them as his Generals. The Hindus were employed principally in the administrative work in the departments of revenue and finance. To them also he granted Jagirs as remuneration for their services and all these Jagirs whether granted for civil or military purposes came to be regarded as hereditary. 9. Distinguished among the Muslim followers was Mohammed Abul Khair Khan, a member of a noted family which had settled for some generations in Oudh and afterwards in Agra. He had rendered meritorious services in battles and was the recipient of several favours and honours at the hands of the Nizam. He was eventually made a "Commander of 6000 horsemen", with the title of "Imam Jung". He died in 1751 A. D.

His son, Abul Fateh Khan, who followed in the footsteps of his father, soon rose to great prominence. His services also got rewarded and his estate swelled up by reason of fresh grants and sanads. 10. Eventually, in or about the year 1198 H. (1784 A. D. ) the Jagirs roughly coinciding with what sometime thereafter were called the Paigah Estates, were granted to him by Nizam Ali Khan under a Perwana. On his death, a fresh grant of the same estate and of about the same area was made in 1205 H. to his son, Fakhruddin Khan, who was a minor then. This grant seems to have been made as Paigah grant. 11. In fact, the term 'Paigah' as used in the Parwan of 1198, and 1205 H. connotes an estate granted for maintenance of the army. Abul M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] Fateh Khan indeed expressly undertook to maintain a regular number of troops at a definite cost. In 1253H.

on the application of Fakhruddin Khan, a regular sanad was granted. That sanad is the foundation of the title of the Paigah family. The nature of the grants evidenced by this sanad would show that these grants were burdened with obligations to maintain Paigah troops for the services of the Nizam. 12. Fakhruddin Khan, however, died in 1863 A. D. He was succeeded by his eldest surviving son, Rafiuddin Khan, who was co- Regent of the Hyderabad State along with Sir Salar Jung during the minority of the late Nizam Mir Mahboob Ali Khan. On the death of Rafiuddin Khan, disputes arose about the family properties between Rashiduddin Khan, his brother, and Motashim-ud-Daula and Bashir-ud- Daula (Sir Asman Jah) the two sons of Sultanuddin Khan, another brother of Rafiuddin Khan. Before these quarrels were settled, Motashim-ud- Daula and Rashiduddin Khan died. Eventually in 1882 A. D.

, an award was madeby Sir Salar Jung,between Asman Jah on the one side and Rashibuddin Khan's two sons, Khurshid Jah and Vikar-ul-Umara on the other, as a result of which certain estates called Paigah Taluqas were awarded to Asman Jah. The remaining Paigah Taluqas of the family were divided between Khurshid Jah and Vikar-ul-Umara as a result of the award of Mr. Ridsdale. There was a partial division of the family property in 1878 A. D. also. As a result of these arrangements, the original Paigah Estate become divided into three separate estates known as the Asman Jahi Paigah, Khurshid Jahi Paigah and Vikar-ul-Umrahi Paigah. 13. Thereafter, Asman Jah, Khurshid Jah and Vikar-ul-Umara remained in possession of their respective Paigahs until their deaths. These Paigah grantees, were not the absolute owners of the estates. In fact, the Jagirs in Hyderabad State were neither in the nature of Zamindaries of Madras State nor of Taluqdaris of U. P.

While proprietary rights vested in the Zamindars of Madras and Taluqdars of Oudh, the Jagirdars in Hyderabad were entitled only to the usufructs of revenue from the estate for life. The grant, in law, on the death of Jagirdar would revert to the Crown and would be made as a fresh grant to the new Jagirdar. The Paigah estates with which this case is concerned, was no exception to this. In fact, since they were burdened with the obligation to maintain Paigah troops, they were liable to be resumed by the Nizam if he so willed. The Nizam could as well commute the military burden into an equivalent money payment and require such payment on pain of resuming the Paigah Jagir. He was, at any time entitled to state that he does not require troops but requires money in their stead. 14. Besides, Paigahs like Jagirs were inalienable and impartiable save with the consent of the Nizam. Therefore, the above-mentioned partitions required the consent of the Nizam.

In fact, several partitions which took place, obviously had the implied consent of the Nizam. On 12th Rajab 1337 H. (12-4-1919) the Nizam appears to have ordered that the Paigah Jagirs were not to be further divided. 15. But the fact that the Paigah Jagirs as they stood at that time were not to be physically divided, did not prevent such members of the family as are legally entitled thereto, from dividing the shares of the income of the Jagirs. 16. A special feature of the Paigah, as also of Jagirs and Inams in Hyderabad State was that possession of the estate was given to a single person as the Paigah holder (in case of Paigahs) who, in addition to his own shares, was entitled in respect of the management, a specific share in the income of the estate and this right was called Haqe Inthezam or right of management. The junior members were entitled to their shares after deducting the Haqe Inthezam and other administrative expenses. There used to be others also known as Guzaryats. 17.

The Paigah Estate included some Zat Jagirs as distinct from the Paigah taluks granted from time to time. They too were eventually merged in the Paigah estates. The holder of the Paigah was called Amir. Though the holder was the Amir, the heirs of the original grantees, as in the case of any other Jagirs, were entitled to their respective shares in the revenue, by inheritance, of course, after deducting the share of the Amir and also the administrative expenses. The Amir had a special share of his own to support his position as the head and manager of the Paigah and its representative towards the Nizam and the public. This share was previously unascertained. That was the reason why until the death of Sir Khurshid Jah and the other respective holders of the Paigah, the Amirs were practically the only persons to be considered and they could take for themselves what part of the income they thought fit. 18.

In order to remedy the injustice caused by such arbitrary and capricious way of appropriation of the income, several committees came up with proposals. Sir Brain Egerton's Committee proposed among other M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] things that the Amir should be allowed to take 11D 2 annas in the rupee of the gross income of the Paigah. The Reilly Commission proposed that Amir should take a definite portion of the net, instead of the gross income of the Paigah. In fact, in respect of Jagirs there was also a Farman of 1340 H that the manager should be allowed 4 annas in the rupee of the net income. 19. Sir Khurshid Jah died on Rabi-al-Thani, 1320 H (July, 1902) leaving behind him surviving, two sons, by name Imam Jung and Zafar Jung as his only recognised legitimate heirs.

As already stated, any grant of Jagir, on the death of the grantee would lapse to the Crown and a fresh grant could be made to any of the heirs of the previous grantee. The Nizam had ample powers to resume the Jagirs or to appoint any person, be he the eldest son or not, as the Amir or make any other arrangements. 20. On the death of Sir Khursid Jah, no Amir was appointed by the Nizam in relation to that Paigah until 1345 H (February, 1927) and no member of the family was put in complete charge of the Paigah. Nawab Zafar Jung, under a Farman issued a few weeks after the death of Sir Khurshid Jah, was put in charge of the Khurshid Jahi Paigah as a mere supervisor and trustee to carry on the ordinary routine work and was directed to take the Nizam's orders on all important matters and to account for the income and expenditure of the estate. 21.

The administration of this Paigah estate, as in the case of other Paigahs in which similar arrangements were made, did not fare better and in fact all these estates ran into huge debts. A Controller General of Paigah Affairs called Sadr-Ul-Moham of the Paigahs was appointed by the Nizam to undertake complete control and management of the three Paigahs under his orders. This step proved successful and the able and efficient management of the committee helped to build up appreciable reserves for each of the Paigah estates after wiping out the huge debts. 22. It was then that Lutfuddaula was appointed Amir under the Farman dated 29thRajjab, 1345 H (2-2-1927) A. D. During the interval, the properties left by Khurshid Jah were not permitted to be divided, though claims were advanced by his two sons and by their children. 23.

In connection with the claims made by various heirs, the Nizam appointed as many as three Royal Commissioners: (1) The Egerton Committee (2) The Glancy Commission and (3) The Reilly Commission. 24. After a careful consideration of these reports, a Farman was th th issued on 17 January, 1929 (5Shahban1347 H. ) The Nizam stated therein that in regard to the Paigah, he held a three-fold capacity (i) as the Ruler of the State (ii) as the head of Sarf-i-khas and (iii) as the patron of the Paigah family. 25. In Para 2 of the General Orders of the Farman, he directed that "whatever property had hitherto been acquired or articles purchased or buildings constructed out of the income of the Paigahs will be considered the property of the Paigahs and not that of any individual, and it will not be liable to division like Mathruka property". 26.

In Order II the Nizam directed that one-third of the gross income should be appropriated for the administrative charges of the Jagir, and the second-third would constitute the Manager's share i. e. , the Paigah Amir's share and the remaining one-third shall form the share of the other heirs, i. e. , the shareholders of the Paigah. 27. In Order III Para 9, he further directed that the precious stones, jewellery and rare articles, which, in accordance with the principles laid down in Para 2 of the Farman are the property of the Paigah from olden times, or have been purchased with money belonging to the Paigahs will remain with the Paigah Amir in trust. Paigah Amir shall not have the right to sell, pledge, or give them to any person, but they can be lent for temporary use to members of the Paigah family after obtaining the Nizam's sanction from time to time, provided the Amir holds himself responsible for their safety and careful use.

In Order III Para 2, the Nizam directed that if there is any property left as intestate property of any Paigah, the distribution thereof shall also be settled by the Committee appointed by the Farman. 28. The Nizam stated in Order III, Para 2 that at the time of Sir Khurshid Jah's death, his two sons Imam Jung and Zafar Jung were his only heirs, who, if alive then, would have been entitled to one half share each of third part of the gross income, and that since both are dead and the number of their survivors were large and regarding some of them (especially among Zafar Jung's heirs) there was difference of opinion as to the legality of certain marriages and the legitimacy of some children, a Committee had to be appointed for the distribution of the third part of M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] the gross income of the Khurshid Jahi Paigah among the heirs of Khurshid Jah's two sons. 29.

This Committee was presided over by Nawab Mirza Yar Jung, the then Chief Justice of Hyderabad and they submitted their report on 17thJanuary, 1929. This Committee, known as the Paigah Committee, gave a definite finding that Nawab Khurshid Jah left no property which was not acquired or purchased out of the Paigah income within the meaning of Para 2 of the preliminary portion of the Farman. Thus, what was left by Sir Khurshid Jah were (1) the properties or articles purchased or buildings constructed out of the income of the Paigahs and (2) precious stones, jewellery and rare articles which, in accordance with the principles laid down in the Farman are the property of the Paigahs from olden times, or have been purchased with money belonging to the Paigahs which are held by the Paigah Amir in trust as heirlooms of the Paigah family.

Distribution of these two classes of properties, including their accretions, could not be made, in view of the Farman, amongst the heirs of Nawab Sir Khurshid Jah, as they were held indivisible, impartible and inalienable. The Amir Paigah was only a supervisor and trustee for these properties. 30. Twenty years after this report, the political atmosphere changed and the Jagirs and the Paigahs were abolished by means of the Jagir Abolition Regulations (Hyderabad Regulation No. 69 of 1358 F) with effect from 15. 08. 1949. The Jagirs and the properties connected with the Jagirs were taken over by the Jagir Administrator and the Jagirdars were declared entitled only to the commutation amount. The other properties and estates unconnected with the Jagirs, however, were allowed to remain with the Jagirdars. 31. In the year 1955-56, a lady by name Dildar-Un-Nissa Begum, who was one of the lineal descendants of Khurshid Jah filed a suit in O. S. No.

41 of 1955-56 on the file of the City Civil Court, Hyderabad, claiming (i) that the Estate left behind by Nawab Khurshid Jah was a Mathruka Estate; and (ii) that she is entitled to 29/2944 share. It must be mentioned at this stage that the fight in O. S. No. 41 of 1955 as it was originally instituted, was actually between the surviving heirs of Nawab Zafar Jung on the one hand and the surviving heirs of Nawab Imam Jung on the other hand. (Nawab Zafar Jung and Nawab Imam Jung were the sons of Khurshid Jah). To be precise, the surviving heirs of Nawab Zafar Jung were arrayed as, (i) the plaintiff; and (ii) defendant Nos. 1-35 and 44-49. Similarly, the surviving heirs of Nawab Imam Jung were arrayed as defendant Nos. 36-42 and 50. Defendant No. 43 was the Jagir Administrator of the Government of Hyderabad. It may also be mentioned here that at the time of the institution of the suit, there were only 43 defendants with the Jagir Administrator being the last, namely defendant No. 43.

However, subsequently the number of defendants swelled to unmanageable proportions both on account of the death of the original defendants one after the other and various other factors which we shall see later. 32. The reliefs sought for in the suit were as follows:- "The Plaintiff therefore prays that a preliminary decree be passed:- (a) directing that the properties detailed in Schedule IV which are in the possession of the part as detailed therein and the other (b) category properties detailed in para (12) above which are in the possession of defendant No.

43 and all other properties whatsoever that may be found to belong to the Mathruka of the late Nawab Khurshid Jah be divided by metes and bounds and plaintiff be given her 29/2944th share therein; (b) appointing, a Commissioner-Receiver to take charge of the said properties and divide the same between persons who are legitimately entitled thereto; (c) directing the Defendants Nos 1 to 43 to account for all mesne profits and income accruing in respect of the said Mathruka properties upto the date of suit and there after during the pendence of this suit; and (d) restraining the defendants from changing, alienating on encumbering any of the aforesaid properties in any manner during the pendency of this suit. If any properties of the Mathruka estate have been alienated by any of the defendants the same be debited to their share or ordered to be recovered from them if it is in excess of their share.

The plaintiff further prays that appropriate orders be passed for payment plaintiff costs out of the Mathruka Estate. And such further and other reliefs be granted and orders be passed which this Hon'ble court may deem fit. " M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 33. For reasons which are not immediately decipherable, the said suit filed in the City Civil Court, Hyderabad was withdrawn by the High Court and transferred to itself for being tried and disposed of. This withdrawal and transfer could have happened (only a presumption) either in terms of Clause 13 of the Letters Patent or in terms of Section 24(1)(b)(i) of the Code of Civil Procedure, 19081. It must be remembered that until the High Court was renamed as the High Court of Andhra Pradesh in November, 1956 under the States Reorganisation Act, 1956, the High Court was the High Court of Hyderabad.

The suit as it was originally filed was in the year 1955-56, but the withdrawal and transfer took place in the year 1958 and the suit was re-numbered as CS No. 14 of 1958. 34. Since the genesis of the present dispute should be traced to the plaint in CS No. 14 of 1958, it is necessary to extract the main part of the plaint as such. Therefore, paragraphs 6 to 17 of the plaint read as follows:- "6. After the death of Nawab Khurshid Jah in 1320-H, neither the Paigah Estate nor the Mathruka was permitted to be divided through claims were advanced by his two sons and later by their children. The reason for not permitting the division of the Paigah Estate or the Mathruka of Nawab Khurshid Jahappears to be that His Exalted Highness the Nizam was against further partition and wanted to preserve this ancient family as a whole and preserve its integrity, and grandeur.

This is evident from the two Farmans of His Exalted Highness dated 11thRajab 1337H, Corresponding to 8thKhurdad 1328 Fasli and 5thShaban 1347 H, corresponding to 15thIsfandar 1338 Fasli (17. 1. 1929). Copies of the said two Farmans are herewith filed and marked II and III. 7. In connection with the claims of various heirs His Exalted Highness the Nizam appointed as many as three Royal Commissions namely: (1) The Egerton Committee, (2) Glancey Commission, and (3) Railey Commission After considering the Reports of these three Commissions, His Exalted Highness issued the last mentioned Farman dated 1 Hereinafter referred to as"CPC" 17-1-1929, (marked III supra) with a view to preserve the Paigah Estate and perpetuate the Paigah Family. 8.

In para 2 of the above-said Farman dated 17-1-1929 (marked III) His Exalted Highness the Nizam directed as follows:- "Whatever property has hitherto been acquired or article purchased or building constructed out of the income of the Paigahs will be considered the property of the Paigahs and not that of any individual, and it will not be liable to division as an inheritance (Mathruka)" 9. H. E. H the Nizam further directed as per the said Farman in Order III Para 9 thereof as follows:- "Precious Stones, Jewellery, and rare articles which in accordance with the principles laid down in the above (Farman para 2) are the property of the Paigahs from olden times, or have been purchased with money belonging to the Paigahs, will remain with the Paigah Amir in Trust as heirlooms of Paigah family. The Paigah Amir shall not have the right to sell, pledge, or give them to any person.

They can however be lent for temporary use to members of the Paigah family, after obtaining my sanction from time to time, provided the Amir holds himself responsible for their safe and careful use. " 10. In order III, Para (2) of the Farman (marked III supra) H. E. H. the Nizam referred to another and third class of property and directed as follows:- "If there is any property left as intestate property (Mathruka) in any Paigah the distribution thereof shall also be settled by the same Committee" The Committee referred to in the portion of the Farman extracted above is Nawab Mirza Yar Jung Committee whose report was submitted on 9th April 1929. H. E. H. the Nizam accepted the said report and issued a Farman accordingly.

In the said report of Mirza Yar Jung Committee, a definite finding was given that it was not proved by claimants that Nawab Khurshid Jah left any property which was not acquired or purchased out of the Paigah income within the meaning of para (2) of the preliminary portion of the Farman. M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 11. By reason of the finding of the Mirza Yar Jung Committee negativing the existence of any Mathruka acquired or purchased from sources other than paigah income there were only two categories of Mathruka property of Nawab Khurshid Jah viz, (a) properties or articles purchased or buildings constructed out of the income of the Paigah, (b) Precious stones, Jewellery and rare articles purchased with money belonging to the Paigah and held in trust by Paigah Amir as heirlooms of Paigah family. 12. As per Firman dated 5th Shaban 1347 H (17-1-1929-A. D), H. E. H.

the Nizam prevented the distribution of the two classes of Mathurka properties aforesaid and lists of properties belonging to category (a) including all accreations and additions thereto, so far as plaintiff is aware are set out in the schedule herewith filed and marked IV and IV(a) are of the approximate value of O. S. Rs. 652058-2-0 and they are in the possession of persons referred to in the said schedule. The plaintiff is not aware of the extent and value of precious stones, jewellery and rare articles referred to in category (b) mentioned in para 11 above. The last mentioned properties which ought to have been in the possession of the Defendant No. 1 as Amir Paigah were left for safe-custody in the Government Treasury during the days of police action and subsequently passed into the custody of Jagir Administrator the Defendant No. 43 herein. The plaintiff tentatively values the said properties mentioned in Category (b) aforesaid at O. S.

Rupees one lakh and claims her legitimate share therein after the full extent and value thereof are ascertained. 13. The Jagirs in Hyderabad State including Paigah having been abolished by Jagir Abolition Regulation No. 69 of 1358 F, with effect from 15thAugust 1949 the Said Firmans precluding the partition of the aforesaid two categories of Mathruka properties, ceased to be operative and plaintiff became entitled to claim her legitimate share of Mathurka Estate of the late Nawab Khurshid. Jah viz, her 29/2944th share which she tentatively values at the aggregate sum of O. S. Rs 7408-1-1 as detailed in the Schedule IV and IV(a) para 12 referred to above of the aggregate tentative value of O. S. Rs. 752058-20. 14. The cause of action for this suit arose at Hyderabad-Dn, On 15thAugust 1949 when the Jagir Abolition Regulation came into force and the Firmans of H. E. H. the Nizam preventing the partition of the suit properties ceased to be operative.

The suit is in time, in any event, as the bulk of the properties in Schedule IV And IV(a) are immovable properties and the other properties in category (b) And referred to in para 13 were held by the Defendant No. 1 the Amir Paigah In trust and are now with Defendant No. 43. Further the 14thand 15thAugust 1955 were holidays on account of Sunday and Independence Day. 15. The plaintiff values this suit claim tentatively for purpose of court-fees and jurisdiction at O. S. Rs. 7405-1-1, the same being the value of her share of the properties detailed in Schedule IV and IV(a), para 13 above and plaintiff pays a Court-fee of O. S Rs. 562-7-0, and undertakes to pay such additional court-fee, if any, after the divisible properties are ascertained and their correctvalues are fixed. 16. The plaintiff submits that the Schedule IV and the values stated therein are by no means exhaustive or complete and similarly the values of precious stones and jewellery are equally approximate and tentative.

It is possible that there may be other Mathruka properties also which are divisible between the parties. The plaintiff claims her legitimate share of 29/2944th in whatever properties that may be found to belong to the Mathruka of the late Nawab Khurshid Jah and undertakes to pay the appropriate court-fee. 17. This Hon'ble court has the jurisdiction to try this Suit as the bulk of the immovable properties the subject matter of this partition are situated in Hyderabad city and all the Defendants except Defendant No. 36 reside in Hyderabad City. " 35. Interestingly, the plaint was amended first in the year 1957 and paragraph 17A was inserted, more by way of response to the written statement filed by defendant No. 1 in respect of the properties mentioned at Serial Nos. 29 and 30 of Plaint Schedule IV. Subsequently, the plaint was amended twice in the year 1958 so as to insert paragraphs 17B, 17C and 17D.

These amendments resulted in the impleadment of some additional defendants in the suit, including the State of Andhra Pradesh and the State of Mysore as defendant Nos. 53 and 55 respectively. M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 36. These paragraphs 17A, 17B, 17C and 17D of the plaint are extracted as follows:- "17A. According to para 7 of the written statement the defendant No. 1 has asserted that the Matruka properties mentioned in the list enclosed with plaint at serial No. 29 and 30 of schedule No. 4, Zamutanpur Ramdhan Chowdry and Najeeb Bagh are in the possession of Misbahuddin Khan and Ghousuddin Khan, by Virtue of right. This assertion has been made by the defendant No. 1, the Legal and sharia guardian of both the said minors. This plaintiff does not Admit the contention of ownership of both the above said sons of the Defendant No. 1. The names of both of them have been included among the array of defendants.

Thus the plaintiff is entitled to sue and both the above said sons of the defendant No. 1 are liable to answer (the para 17A is added as per order dated 20. 9. 57) 17B. That the plaintiff has come to know through the written statement of the defendant No. 1 that the properties mentioned in items Nos. 37 & 40 of schedule 4 and Nos 13 to 15 of the schedule 4A are in the possession of the state of A. P. As these form the suit properties the state of A. P. is a proper and necessary party to the suit. This hon'ble court has accorded permission to implead the said state as defendant, so it is impleaded as a party by way of amendment. This defendant had no right whatsoever to possess the said properties, as the said defendant is liable to pay mesne profit of the same also and the plaintiff is entitled to them. Hence the plaintiff is entitled to sue and the defendant is liable to be sued. Notice u/s 80 CPC has been issued to the said defendants.

Having received the same the defendant has not given any reply thereof in spite of the fact that two months have elapsed since the receipt thereof. 17C. That as per written statement of the defendant No. 1 Bal Raj, the defendant No. 54 is in possession of the Bagh Hussain Shah Vali, which is a suit property, so, he is impleaded as a party and he is liable to pay mesne property also. Amended as per order dated 25. 1. 58. 17D. that the plaintiff has come to know through the written statement of the defendant no. 1, that the properties in items No. 35 & 36 of the schedule IV item No. 16 of schedule IVA (immovable) are in the possession of the state of Mysore. As these are a part of the suit properties, the state of Mysore is a proper and necessary party, to the suit, this Hon'ble court has accorded permission to implead the state as defendant. So it is impleaded as a party by way of amendment.

This defendant has no right whatsoever to possess the said properties, so the said defendant is liable to pay mesne profits also to plaintiff according to a share, she is entitled to. Hence the plaintiff is entitled to sue the said defendant and the defendant is liable to be sued. Notice u/s 80 cpc had been issued to the said defendant of two months time passed after the receipt thereof, but no convincing reply was given to the plaintiff. (amended as per orders dated 4. 10. 58). " 37. In the year 1961, some of the parties to the suit entered into a compromise. The parties who entered into the said compromise were plaintiff Nos. 1 and 2 and defendant Nos. 1, 5, 6, 7, 9, 11-14, 16-34, 35, 36, 37, 40-42, 44, 45, 46, 48, 49-52, 56-62, 90-94, 97, 99 and 100. It must be recorded at this stage that there was only one plaintiff at the beginning namely Dildar-Un-Nissa Begum. But subsequently, defendant No. 38 got transposed as plaintiff No. 2 and that is how there were two plaintiffs. 38.

The parties who entered into a compromise filed an application in Application No. 264 of 1961 under Order XXIII Rule 3 CPC, for recording the compromise and passing a preliminary decree. The reliefs sought in Application No. 264 of 1961 make an interesting reading and hence they are extracted as follows:- "Application under Order 23, rule 3, Civil Procedure Code, praying that in the circumstances stated in the memorandum of compromised filed herewith the High Court may be pleased 1) to pass a preliminary decree in terms of the compromise after deciding the contentions questions mentioned in paras 18 and 19 of the compromise and the rights of those who have not joint the compromise. iii) to pass a final decree in favour of defendants Nos.

1, 51, 52 and 42 to the extent of properties given to their exclusive shares as mentioned in paras 4, 7, 9 and; IV) to appoint Shri Hafeez Ahmed Khan Retired Sessions Judge, Advocate, residing at Fateh Sultan Lane, Nampally, Hyderabad as Receiver-cum-Commissioner with the powers set out in the M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] memo of compromise and to proceed with the case against the other defendants" 39. It appears that the defendant Nos. 1, 2, 5 to 18, 21 to 29, 33, 34, 36 to 43, 47, 49 to 55, 77, 78 and 95 to 97 filed their written statements. The other defendants did not file any written statement. Defendant Nos. 3, 4, 19, 29 to 32, 35 and 48 were set ex parte. 40. On the basis of the pleadings, the Court framed as many as 50 issues. Some of the issues also had sub issues. 41. But after trial, the Court struck off issue Nos. 14(e) and 21. 42. During trial, six witnesses were examined on behalf of the plaintiff.

Eleven witnesses were examined on behalf of defendant No. 1. One witness was examined on behalf of each of the defendant Nos. 2, 8, 10, 15, 17, 41, 43, 47, 56 to 62, 86 and 87 and 88. Two witnesses were examined on behalf of defendant Nos. 12 and 13, defendant Nos. 48 and 49 and defendant No. 97. Six witnesses were examined on behalf of defendant No. 39 and four on behalf of defendant No. 53. 43. On the side of the plaintiff, 30 documents were marked as Exhibits P. 1 to P. 30. Defendant No. 1 produced 52 documents which were marked as Exhibits D. 1(1) to D. 1(52). Other defendants also marked some documents. 44. Eventually, the learned Judge of the High Court sitting as a Trial Judge, passed a judgment and decree on 28. 06. 1963, both in the suit and in the application under Order XXIII Rule 3 CPC.

The operative part of the judgment which contained the decree intended to be passed, comprised of two portions, one relating to the defendants who were not parties to the compromise and the other relating to those who were parties to the compromise. The operative portion of the judgment is extracted as follows: "The result of the above discussion is that the suit of the plaintiffs in relation to the defendants other than the parties to the compromise shall be decreed in the following terms:- (1) That the properties. (a) Mentioned in plaint schedule IV as also detailed in list 'A' forming annexure to Application No. 37/59, excepting items 26, 29, 30, 34, 35 and 36 and houses bearing municipal Nos. 28 and 29 in item No. 22 of the Schedule; (b) Khurshid Bagh at Lallaguda; (c) The oil paintings, chandeliers and furniture is Baradari. (Item No. 1 in schedule IV) and Ligampalli Garden (Item No.

27) referred to in the first part of Schedule IV-B, the number and the value of which shall be determined in the final decree proceedings; (d) The fire arms and weapons and their sale proceeds, referred to in part-II of Schedule IV-b, the number and value of which shall be decided in the final decree proceedings as per the decision under issues 16 and 18. (e) The articles in Part III, sub-item I of schedule IV-b, as detailed in Exe. P-10 and P-12 taken over by the Jagir Administrator and deposited in the Bank. (f) The gold coins referred to in sub-item II of Schedule IV-b which are taken under Ex. P-9 by the Jagir Administrator; and (g) The jewellery as contained in Ex. P-8 and inventory prepared by the Receiver are properties coming from Khurshid Jah's time, covered by para-2 of the Firman Ex. P-30 dated 5th Shabban, 1347 H.

and Order 3 Clause 9 of the same Firman and are liable to be partitioned among the surviving legal heirs of late Nawab Khurshid Jah; (2) That properties items 37 and 40 in Schedule IV will also be available for partition only in case they happen to be released by the Government; (3) That plaintiff No. 1 and defendants 1 (since dead) to 35, 44, to 49, 51, 52, 56 to 62, 90, 94, 98, 100 and 102 to 112 are the heirs through Zafar Jung in the line of succession of Khurshid Jah, and plaintiff No. 2 and defendants 36, 37, 39 to 42, 50, 97, 99 and 113 to 118 are the heirs through Imam Jung, in the line of succession of Khurshid Jah, as detailed in Annexure II to the judgment; (4) That in the aforesaid properties as also those included in Annexure IV to the Judgment, defendant No. 1 being dead, his legal representatives 51, 52 and 102 to 112 are entitled to a 1/3rd M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.

] share; and in the remaining 2/3rds, the surviving legal heirs in the line of Imam Jung are entitled to one half and the surviving legal heirs in the line of Zafar Jung, excluding defendants 51, 52, 102 to 112 to the other half, and their individual shares are as detailed in Annexure III to this judgment. (5) That Mr. P. Ram Shah, Advocate of this Court, is appointed Commissioner and he shall partition the same subject to the directions contained in this judgment and to such further directions as may be given from time to time by this Court; (6) That the Commissioner shall take accounts from the heirs of defendant No. 1 and submit his report on the following matters; (a) The income and savings from the suit property during the period defendant No. 1 was in management as Amir Paigah, from 1950 upto the date of his death 26-11-1961, as per the decision on issue No. 37; (b) The sale proceeds of items 51 to 53 of Schedule IV realized by defendant No.

1; (c) The excess expenditure alleged to have been met by defendant No. 1 to the extent of one lakh of rupees referred to in the judgment in connection with issue No. 40; (d) Expenses incurred by defendant No. 1 for repairs, extensions and improvements in Bagh Lingampally (item No. 27) as per the decision on issue No. 22; (7) The Commissioner while partitioning the property shall also take into account the amounts from defendants 9, 10, 11, 14, 15, 16, 18, 19, 21, 22, 24, 25, 30, 31, 32, 40, 42, 48, 49, 62, and 93 as per Annexure V towards damages caused by them to the suit properties, in determining the extent of their share; (8) The defendants 86-88 being alienees in relation to shops bearing Municipal Nos. III C-113 to 120, which is a portion of item No. 45; house bearing municipal No. 20-3-842 situate at Shah Gunj comprising 420 sq. yds; house bearing No. 2-2-722 and tinshed bearing No.

2-2--723 situate at Shibli Gunj (both known as Rath Khana) ; and Baggi Khana, bearing Municipal No. 2-3-184 situate at Shibli Gunj, the equities of these alienees may be worked out so far as possible by setting apart the alienated properties to the share of the alienor, defendant No. 10, if that can be done without injustice to the other sharers. The remuneration of the Commissioner is tentatively fixed at Rs. 600/- per month. The plaintiffs will be entitled to the costs from out of the assets. Court fee shall be collected as and when the properties are valued and partition is being effected. So far as the parties to the compromise are concerned, a decree shall follow in terms of the compromise, excluding such terms as relate to appointment of and directions to Receiver and Commissioner and also terms regarding the properties which have been held to be the properties of defendants 2 and 39, viz. , item No. 26 and house Nos. 28 and 29 in item No.

22 in Schedule IV; and so far as item No. 34 of Schedule IV is concerned, that property as also the sale proceeds connected thereto shall be available for partition amongst the parties to the compromise, only after setting apart the due shares of defendants 2 to 4, 10, 47, 94 and 98 as the heirs of Zafar Jung, which work out at double the shares entered in Annexure III. While allotting the shares to the parties to the compromise, equities of alienees, defendants 119, 120 and 121 as also of defendant No. 77 may be worked out as far as possible by setting apart the alienated properties to the share of the respective alienors as directed in the judgment under issues 41 and 49. The Commissioner appointed under para(5) of this order shall partition the property and carry out the terms of the compromise subject to the directions contained in the judgment and such other directions as may be given from time to time.

The expenses incurred in the execution of commission shall be met out of the assets. " 45. There were five annexures to the judgment. Annexure-I contained the list of heirs in the line of succession of Khurshid Jah and the shares to which they were entitled. Annexure-II contained the list of surviving legal heirs in the line of succession of Khurshid Jah and their respective heirs. Annexure-III indicated the amount of each share of the respective sharers. Annexure-IV contained the list of immovable M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] properties which were held to be Mathruka of late Khurshid Jah. In fact, Annexure IV to the judgment was actually the reproduction of Plaint Schedule IV except those not decreed. Annexure-V contained the list of properties damaged and the extent of damage caused by the respective parties. 46. It must be mentioned here that the suit CSNo.

14 of 1958 on the file of the present High Court for the State of Telangana is not merely a strange and curious case but is one which continues to baffle both the legal and the jural fraternities, for more reasons than one, both right and wrong. One of the curious aspects of this case was the description of the immovable properties listed in Plaint Schedule IV. Though a copy of the original plaint has been filed before us as part of the paper books, it does not contain the Schedules. However, Annexure-IV to the judgment dated 28. 06. 1963 in support of the preliminary decree, contains a reproduction of Plaint Schedules IV, IV (a) and the items described in Lists A, A-2, A-3 and A-4 of Application No. 37/59. The same will provide the reader a fair opportunity to understand as to how innumerable items of immovable properties were sought to be described in the Plaint Schedules. Hence, we are constrained to reproduce the same as follows: M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.

MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 27. 28. Waheed Bagh adda Makai, Mohalla two small plots sliced out of Chikkadpally Lingampally garden area outside the wall containing a small old building and huts rented out to tenants, area 2¼ acres. Survey No. 200. 28. 31. Sarurnagar garden building Village and garden with compound Sarurnagar wall area 3 acres taluk Sharki. 29. 32. -- do -- area 2 acres " 30. 33. Hussain Shah Wali garden Village building in ruins garden Hussain enclosed with compound Shahwali wall. Survey No. 38 area 8 Taluk Garbi acres. 31. 37* Hafizpet patta lands, Hafeezpet compact area of 1333 acres. Taluk Garbi 32. 38 Hydernagar patta lands. Hydernagar Compact area of 1210 acres. Taluk Garbi 33. 39 Hafeezpur, compact area of Hafeezpur 2684 acres. 34. 40* Ghansi Mian Gude patta Ghansimiangu lands, compact area 743 da acres. 35. 41 Shops 21 numbers, Bazar, Mohalla Shamoul Umra, Muncipal Shamsulumra Nos. III C-3-1031 to 1033, 1036 to 1038, 1047 to 1050. 36.

42 Shops 6 numbers Umda Mohalla Bazar IIIS-549 to 554 Umdabazar Near Dood Bowli 37. 43 Shops 9 number Dood Mohalla Dood Bowli III C-2- to 8 1155 and Bowli 1156. Darwaza 38. 44 Shops 32 numbers Bazar Mahalla Shibli Shibli Gunj, III C-3-125 to Gunj 137, 151 to 159, 146 and 147. 39. 45 Shops 34 numbers Bazar Mohalla Khurshid Gunj III C-3-89 to Khurshid 120, 722 and 752. Gunj 40. 46 House 1 number III C- Shah Inayat 3-938 Gunj. M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 47. After the preliminary decree dated 28. 06. 1963, some of the parties to the suit transferred their undivided shares in the suit scheduled M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] properties in favour of (i) the Nizam and (ii) another person by name Nawab Khasim Nawaz Jung. These two persons were impleaded as defendant Nos. 156 and 157 respectively.

It may be recalled at this stage that when the suit was originally filed, there were only 43 defendants. At the time when arguments were advanced in the suit, the number of defendants went up to 119 and when the preliminary decree was passed, the number of defendants became 135. It increased further after the decree and the Nizam and Nawab Khasim Nawaz Jung came to be impleaded as defendant Nos. 156 and 157, after they purchased the undivided shares to the extent of 80% from the decree-holders. 48. After three years of the preliminary decree, the Advocate Commissioner-cum-Receiver filed an application in Application No. 268 of 1966 to take over possession of the lands, including the land in Survey No. 172 at Hydernagar village, which was part of Item No. 38 of Plaint Schedule IV. No counter was filed by the respondents.

Though the Plaint Schedule and the preliminary decree did not mention specific Survey number(s) in Hydernagar, the Receiver claimed in his report that he studied the Revenue Records/Pahani Patriks/Khasra Pahanis and found that Survey No. 145 (220. 10 acres), Survey No. 163 (175. 06 acres), and Survey No. 172 (196. 20 acres), were all situated at Hydernagar, and were part of Item No. 38 Schedule IV of the plaint. 49. In the meantime, HEH the Nizam (defendant No. 156) vide a registered sale deed dated 23. 02. 1967, sold his undivided half share in favour of F. E. Dinshaw Ltd. , which later became M/s. Cyrus Investments Pvt. Ltd. 2 This transfer was recognized, and consequently, Cyrus was impleaded as defendant No. 206 in the suit CS No. 14 of 1958. 50. The High Court vide order dated 24. 03. 1967, passed in Application No.

268 of 1966, directed the District Collector, Hyderabad (who was in possession of the properties on behalf of the State Government) to deliver possession of the properties to the Receiver on two grounds namely: (i) that the State Government was a party to the preliminary decree; and (ii) that the property in question was declared to be "Mathruka" property. 51. Thereafter, the Receiver vide Application No. 73 of 1970 in CS No. 14 of 1958, submitted a scheme of partition with respect to the suit schedule movable and urban immovable properties. The High Court 2 For short, "Cyrus" vide order dated 29. 01. 1971 accepted the scheme, and directed the Receiver to also submit a scheme with regard to the suit schedule agricultural lands. 52. The Commissioner-cum-Receiver then filed a curious application in Application No. 139 of 1971 in CS No. 14 of 1958 seeking orders as to whether he should prepare a scheme of partition with regard to claims only (but not actual physical land).

This was on the ground that the Government as well as third party-protected tenants were in actual possession of the suit schedule agricultural lands. An explanatory note was attached to the application stating that the Collector, who was ordered to hand over the possession of Hydernagar lands, was raising an objection that it is Government land. 53. By order dated 16. 09. 1972passed in Application No. 139 of 1971, the High Court allowed the Receiver to partition only the claims in terms of value of the lands as the lands were not in possession of the shareholders. 54. Accordingly, the Receiver submitted a scheme of partition on 03. 12. 1972, distributing only the claims with regard to survey numbers including Survey Nos. 145, 163 and 172 of Hydernagar. 55. The Receiver then filed Application No. 19 of 1973 in CS No. 14 of 1958,impleading only the State of Andhra Pradesh as a party, praying for a direction to the Collector to hand over the possession of Survey Nos.

145, 163 and 172 of Hydernagar village. None of the parties who were likely to be dispossessed were made parties to this application. 56. The High Court allowed Application No. 19 of 1973, vide order dated 05. 07. 1974 directing the Government to give symbolic possession of lands measuring acres 220 guntas 18 in SurveyNo. 145 and measuring acres 175 guntas 6 in Survey No. 163 to the Receiver. Insofar as the other lands are concerned, the High Court recorded that the Government is not in a position even to give symbolic delivery and hence the Receiver was directed to take steps available in law for taking possession from the actual occupants of the lands including the land in SurveyNo. 172, Hydernagar village. 57. Since the parties were unable to agree upon allotment of share of the lands, the High Courtvide order dated 31. 01. 1976, passed in Application No. 139 of 1971, referred the matter to the District Collector M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS.

ETC. [V. RAMASUBRAMANIAN, J. ] under Section 54 of the CPC for division and allotment to the sharers. The District Collector directed the Revenue Divisional Officer3, Chevella to partition the schedule lands. The RDO, Chevella divided and allotted the lands in Survey Nos. 163 and 145 of Hydernagar village to the sharers in different extents, but no such exercise was undertaken in respect ofSurveyNo. 172. 58. Insofar as the land in survey No. 172 was concerned, it was found that Faisal Patti for 1978-79 had been issued by the Mandal Revenue Officer, Balangar, Ranga Reddy District mentioning 25 sub- divisions in Survey No. 172 made during the tenure of the Paigah. The names of 24 persons [including Boddu Veeraswamy, Ruquia Begum, Waris Ali and Ghani Shareef] who were allegedly given Pattas prior to 1948 by the Nizam/his Revenue Secretariat were also mentioned in the said Faisal Patti. 59. The Receiver therefore filed a report, on which the Court passed an order dated 12. 06.

1981 in Application No. 139 of 1971. The Court noted that the Receiver's report was with respect to partition of all other survey numbers other than Survey No. 80 of Hafizpet and Survey No. 172 of Hydernagar. The Court directed the copy of the report to be published. 60. Upon coming to know of the steps so taken by the Receiver, the State Government filed an application in Application No. 44 of 1982 in CS No. 14 of 1958 seeking amendment of the preliminary decree to delete Item Nos. 35 to 38 and 40 of Schedule IV, contending that the decree was not in consonance with the judgment. This application was dismissed by the High Court vide order dated 18. 12. 1982. 61. At this stage, Nawab Khasim Nawaz Jung (defendant No. 157) and Cyrus (Defendant No. 206) filed several applications before the High Court in CS No. 14 of 1958, including Application No. 266 of 1983. The relief sought in Application No. 266 of 1983 was "to issue an order for handing over possession of Survey No.

80 of Hafeezpet village, measuring 48,477. 5 cents (about 484 acres) andSurvey No. 172 of Hydernagar measuring 19,650 cents (about 196. 5 acres) to defendant Nos. 157 and 206 and for directing the Receiver-cum-Commissioner to execute the warrant of possession 3 For short, "RDO" through City Civil Court and put defendants 157 and 206 in possession of Survey No. 80 of Hafeezpet and Survey No. 172 of Hydernagar respectively". The sole respondent to the application, namely the Receiver reported "no objection. " None of the persons in possession of the lands in Survey No. 172 through Pattas were impleaded as parties to the Application No. 266 of 1983. The High Court vide orderdated 20. 01. 1984 allowed the application, directing the Receiver-cum-Commissioner to hand over possession of the land in Survey No. 80 of Hafeezpet and Survey No. 172 of Hydernagar to Khasim Nawaz Jung (defendant No. 157) and Cyrus (defendant No.

206) by executing a warrant of possession through the City Civil Court and putting Khasim Nawaz Jung (defendant No. 157) and Cyrus (defendant No. 206) in possession. It is stated by the parties that though High Court issued warrant of possession to the Receiver, the same could not be executed (probably because the lands were in possession of third parties). 62. Eventually, the High Court, vide order dated 16. 11. 1984 passed in Application No. 276 of 1984 in CS No. 14 of 1958, discharged the Receiver on the ground that he had not submitted a scheme for distribution despite a specific earlier order dated 27. 10. 1984 to this effect and directed the Receiver to hand over the records to the Deputy Registrar of the High Court by 01. 12. 1984. 63. Pursuant to the said order, the Receiver handed over the charge of his office to the Deputy Registrar of the High Court, thereby ending the role of the Receiver in CS No. 14 of 1958 with regard to land in Survey No. 172.

The net result is that the order and the warrant dated 20. 01. 1984 stood unimplemented or unexecuted by the Receiver. 64. Thereafter, Cyrus (defendant No. 206) and Nawab Khasim Nawaz Jung (defendant No. 157) executed a Deed of Assignment on 29. 11. 1995 in favour of M/s Goldstone Exports Pvt. Ltd. 4 to the extent of 98. 10 acres in Survey No. 172, Hydernagar. On the basis of this assignment, Goldstone filed four Applications namely, (i) Application No. 992 of 1995 for recognition of the assignment of the rights to land of the extent of acres 98. 10 guntas in Survey No. 172 at Hydernagar village; (ii) Application No. 993 of 1995 for impleading them as parties to the suit; (iii) Application No. 994 of 1995 for modification of the 4 For short, "Goldstone" M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] order passed on 20. 01. 1984 in Application No.

266 of 1983 by substituting the names of the petitioners and directing delivery of possession of the land of the extent of half share out of acres 196. 20 guntas in Survey No. 172, Hydernagar; and (iv) Application No. 995 of 1995 for a direction to the revenue authorities to enter their names in the concerned records. 65. In the aforesaid applications, only the Assignors i. e. , Khasim Nawaz Jung (defendant No. 157) and Cyrus (defendant No. 206) were impleaded as parties. Third parties who were in possession as per the Faisal Patti of 1978-79 were not impleaded as respondents in these applications. 66. These applications, I. A. Nos. 992, 993, 994 and 995 of 1995 were allowed unopposed, by the High Court by order dated 28. 12. 1995. 67. Thereafter, Goldstone and others filed an execution petition in E. P. Nos. 3 of 1996 under Order XXI Rule 35 CPC before the District Court, Ranga Reddy District seeking delivery of Item No. 38 of Plaint Schedule IV (survey No.

172 of Hydernagar) pursuant to the preliminary decree dated 26. 08. 1963 in CS No. 14 of 1958. The Assignors namely, Khasim Nawaz Jung (defendant No. 157) and Cyrus (defendant No. 206) alone were arrayed as respondents- judgment-debtors in the said execution petition. Third parties in actual physical possession were not impleaded. 68. The District Court, Ranga Reddy District passed an order dated 29. 03. 1996 in E. P. No. 3 of 1996 directing the Bailiff of that Court to deliver land of the extent of 98. 10 acres in Survey No. 172 to the petitioners in E. P. No. 3 of 1996, in accordance with the assignment recognised by the High Court and in pursuance of the order dated 28. 12. 1995 passed in Application No. 994 of 1995. The Bailiff of the Court then submitted a report dated 19. 04. 1996 stating that there was no resistance from the judgment-debtors and that he had delivered the possession of the land to Goldstone. 69.

Upon coming to know of the same, several persons who were in possession of portions of the land in Survey no. 172, Hydernagar, filed separate applications seeking various reliefs. They may be tabulated for easy appreciation as follows: 70. The District Court, Ranga Reddy District refused even to entertain the above applications on the ground that it cannot go beyond the mandate of the High Court issued in Application No 994 of 1995. 71. Aggrieved by the refusal of the District Court even to entertain their applications, a society by name Sri Sathya Sai Cooperative Housing Society Ltd. filed a revision petition in C. R. P. No. 4921 of 1996 before the High Court. Some members of another society by name Set-win Employees Housing Cooperative Society and 33 members of Sri Satya Sai Co-operative Housing Society Ltd. filed OSA Nos. 10, 11 and 20 of 1996 questioning the High Court's order dated 28. 12. 1995 in Application No. 994 of 1995; and OSA No.

19 of 1996 against the High Court's orders in another Application No. 963 of 1995 in C. S. No. 14 of 1958 pertaining to another E. P. No. 4 of 1996. 72. A Division Bench of the High Court allowed those original side appeals by order dated 06. 11. 1996 and: Directed the District Court, Ranga Reddy Dist. to entertain and dispose of the claim petitions on merits; Directed the restoration of possession of the land to the claim petitioners and to hear their objections before passing any orders in the E. P(s). M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 73. A similar order was passed in C. R. P. No. 4921 of 1996 directing the District Court, Ranga Reddy District to register and dispose of the claim petitions on merits. 74. Challenging the said orders, Goldstone Exports and othersfiled, S. L. P. (C) Nos. 8787-8789 of 1997 challenging the High Court's order dated 06. 11. 1996 in OSA Nos. 11 and 20 of 1996; and S. L. P. (C) No.

23706 of 1996 against the orders in OSA No. 10 of 1996 (pertaining to Application No. 994 of 1995 and E. P. No. 3 of 1996). 75. By order dated 14. 08. 1997, this Court allowed all those SLPs and remanded OSA Nos. 10, 11 and 20 of 1996 back to the High Court. This was the first order of remand. 76. In the interregnum, Goldstone and 15 others filed Application No. 517 of 1998 in CSNo. 14 of 1958 praying for passing a final decree, impleading the LRs of Nawab Khasim Nawaz Jung (defendant No. 157) with regard to 98. 10 acres in SurveyNo. I72 of Hydernagar village on the ground that they have been delivered possession of the property by the District Judge, Ranga Reddy District on 17. 04. 1996 pursuant to the direction of the High Court dated 28. 12. 1995 in Application No. 994 of 1995. This application was allowed by the High Court by order dated24. 04. 1998 and a final decree came to be passed in favour of Goldstone, recording that possession of the property measuring acres 98.

10 guntas in Survey No. 172, Hydernagar village (Item No. 38 of Schedule-IV)had been delivered to them by the Bailiff of the Court of the District Judge, Ranga Reddy District on 17. 04. 1996 in E. P. No. 3 of 1996. Perhaps this must be the first order of its kind, in the history of a partition suit, where a final decree came to be passed after the execution of the preliminary decree and taking delivery of possession of the property. 77. Within a few months of the passing of the final decree, the original side appeals remanded back from this Court were taken by the Division Bench of the High Court and they were dismissed by order dated 10. 11. 1998. It was held therein that the claim petitions were not maintainable and that the claimants therein were claiming rights through the parties to the decree in CS No. 14 of 1958.

In effect, it was held that the claims of the obstructionists are through some of the judgment-debtors and that therefore applications under Rule 97 or 99 of Order XXI are not maintainable, at the instance of the judgment-debtors, or persons claiming through them. 78. The order of the High Court dated 10. 11. 1998 became the subject matter of challenge before this Court in Civil Appeal Nos. 7983 of 2001 with Civil Appeal Nos. 7984-85 & 7986-88 of 2001. These appeals were allowed by this Court by a decision dated 23. 11. 2001, reported in NSS Naryana Sarma vs. M/s Goldstone Exports Private Ltd. 5 This Court took the view that the claim petitions were very much maintainable, as the claim petitioners were claiming rights independently under the provisions of the Jagir Abolition Regulations. After so holding, this Court remanded the matter back to the High Court for a fresh consideration of the claim petitions.

This Court directed that the petitions filed by the appellants before this Court (in that case) had to be placed before a Single Judge for consideration. 79. Accordingly, all the applications including Application No. 994 of 1995 were placed before L. Narasimha Reddy, J. , (as he then was). The learned Judge framed as many as 11 issues and 2 additional issues as arising for consideration in all those applications. 80. Eventually, the learned Judge disposed of all the applications by an order dated 26. 10. 2004, whose operative portion, extracted hereunder, is self-explanatory: "68. For the foregoing reasons; (a) Application No. 994 of 1995 is dismissed. (b) Application Nos. 585 and 708 of 2002, and 1318 to 1320 of 2003 are allowed. (c) The petitioners pleaded throughout that the land in question was vacant. It has already been found that the filing of E. P. in the Court of District Judge, Ranga Reddy District and the various steps taken therein are contrary to law.

Hence, the alleged delivery of possession in favour of the petitioners, is held to be symbolic. (d) The respondents are found to be holding title and possession of the lands covered by the respective sale deeds 5 (2002) 1 SCC662 M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] in their favour. Inasmuch as the delivery of possession was only symbolic, that too as regards vacant land, it shall be open to them to remain in possession of the said land. The petitioners do not have ony right. title and interest in respect of the land. which constituted the subject matter of E. P. No. 3 of 1996. (e) In case there is any resistance from the petitioners as to the right of the respondents to remain in possession of the land, the District Court, Ranga Reddy shall direct re-delivery of possession of such land to the respondents, if an application is filed for this purpose.

(f) It shall be open to the petitioners to take such steps as are open to them in law, in relation to the assignment of rights in their favour. " 81. Aggrieved by the said order of the learned Single Judge dated 26. 10. 2004, the assignees of decrees filed a batch of appeals in OSA Nos. 52 to 59 of 2004. By a common order on 23. 06. 2006 the Division Bench of the High Court allowed the appeals holding that the claim petitioners failed to establish their independent right, title and interest much less possession of whatsoever nature. 82. Against the order dated 23. 06. 2006, the claim petitioners filed appeals in C. A. Nos. 3327-3331 of 2014 before this Court. When the appeals came up for hearing before this Court, it was noticed by this Court that one of the Judges of the Division Bench (Justice B. Seshasayana Reddy) which passed the order impugned therein, had earlier passed an order, while he was a District Judge, Ranga Reddy District in favor of the claim petitioners.

Therefore, all the counsel representing various parties conceded before this Court that the common judgment of the Division Bench dated 23. 6. 2006 in the OSAs be set aside and the matter remanded back once again. Accordingly, this Court allowed the appeals by order dated 05. 03. 2014 and set aside the order of the Division Bench of the High Court dated 23. 06. 2006 and remanded the OSAs back to the High Court. 83. After the order of remand, the original side appeals were listed for hearing before a Division Bench of the High Court along with several applications. On 14. 03. 2018, the Division Bench of the High Court passed an order merely categorizing all pending appeals and applications arising out of CS No. 14 of 1958 into 14 types and directing the parties to get ready for arguments in all those appeals and applications from the next date of hearing. 84.

Though it was not a decretal order, but was one for house- keeping so that the hearing of all appeals and applications could proceed in a structured way, the said order was challenged by the legal heirs of Nawab Khasim Nawaz Jungand Goldstone/Trinity before this Court in S. L. P. (Civil) Diary No. 40990 of 2018. The grievance projected by these persons against the order of the High Court dated 14. 03. 2018 was that by categorizing the appeals and applications for hearing, the High Court was likely to reopen even the appeals already disposed of. 85. This Special Leave Petition was disposed of by this Court on 16. 11. 2018 at the stage of admission itself, without ordering notice to the respondents. The order reads as follows: "Delay condoned. Mr. Gopal Shankarnarayan, learned counsel, submits that the High Court is likely to reopen even those second appeals, which had already been disposed of. The apprehension of.

is based on the following observation made by the High court in the impugned order : - "All the writ petitions falling under category-XIII and XIV will be taken up for hearing from 10th April 2018 on a day- today basis on a specific understanding that the learned Government Pleader will get ready to argue the writ petitions from 10th April 2018 onwards. For the purpose of convenience, the cause list will be printed as such without any modification, since the learned counsel appearing on all sides today have had the benefit of the memo filed by the Receivers-cum Commissioners and it is up to them to come prepared with respect to the cases that fall under these categories. " It is made clear that the execution will pertain only to those writ petitions which have otherwise survived on account of the remand. In view of the above, the Special Leave Petition is disposed of. " M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S. MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J. ] 86.

Not satisfied with the above disposal, the above Special Leave Petition was brought up for hearing once again on 28. 11. 2018 upon being mentioned for a clarification. On such mentioning, this Court passed an order on 28. 11. 2018 to the following effect: "The operative portion of the order dated 16. 11. 2018 is modified to the following extent (with underlying modifications} "It is made clear that the adjudication will pertain only to those writ petitions and appeals {OSAs} which have otherwise survived on account of the remand," Rest of the order shall remain as it is. " 87. Thereafter, the Division Bench of the High Court took up all the original side appeals and disposed of the same by a common judgment dated 20. 12. 2019. The operative portion of the order of the Division Bench reads as follows: "414. In the result: (a) OSA NOs. 54, 56, 57, 58 of 2004 are dism