HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
O.S.A.Nos. 18, 19, 20, 21, 22, 23, 24 and 25 of 2004
and
31, 32, 33 and 34 of 2011
--------------------------------------------------------------------
DATED 17TH February, 2012.
BETWEEN
Housing Society Limited, Hafeezpet, RR District,
Rep. by its Secretary G.Ramavataram
……..Appellant in all OSAs
and
Paleti Shravan Kumar and ors
………Respondents in OSA.Nos. 18, 19, 20 and 21 of 2004
Ravella Rosaish and ors
…….Respondents in OSA Nos. 22, 23, 24 and 25 of 2004
P.Sadasiva Reddy and ors
……Respondents in OSA Nos. 31, 32, 33 and 34 of 2011
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
O.S.A.Nos. 18, 19, 20, 21, 22, 23, 24 and 25 of 2004
and
31, 32, 33 and 34 of 2011
-----------------
COMMON JUDGMENT
Having due regard to the divergence of the views expressed by the two learned Judges constituting a Division Bench of this Court, the matter has been referred to me by the Honourable The Chief Justice for the opinion of the third Judge.
I have had the advantage of going through the common Judgments rendered separately by both the learned Judges. The facts and contentions of the appellant as well as the respondents have been narrated in extenso therein and, therefore, there is no need and necessity for me to reiterate in this common Judgment the whole factual gamut of this batch of appeals except mentioning the same wherever necessary to elucidate and adjudicate the points in controversy.
At the outset, it may be stated that this batch of appeals came up before a learned Division Bench of this Court consisting of my learned brethren Sri Justice V.Eswaraiah and Sri Justice B.Chandra Kumar, who heard the same and rendered separate but differing Judgments dismissing and allowing this batch of appeals respectively. That is how the present batch of appeals are before me for adjudication.
M/s.Hindustan Aeronautics Employees Co-operative Housing Society Limited represented by its President A.Swamy Rao (hereinafter referred to as ‘the appellant society’) preferred the appeals in O.S.A.Nos.18, 19, 20 and 21 of 2004 assailing the common order dated 16.09.1999 in Application Nos.1206, 1207, 1208 and 1209 of 1999 in C.S.No.14 of 1958 passed by a learned Single Judge of this Court.
Challenging the common order dated 10.10.2000 passed by a learned Single Judge of this Court in Application Nos.1452, 1453, 1454 and 1455 of 2000 in C.S.No.14 of 1958, the appellant society also preferred the appeals in O.S.A.Nos.22, 23, 24 and 25 of 2004.
The appellant society, feeling aggrieved by the common order dated 12.07.2002 passed in Application Nos.754, 755, 756 and 757 of 2002 in C.S.No.14 of 1958 by a learned single Judge of this Court, preferred the appeals in O.S.A.Nos.31, 32, 33 and 34 of 2011.
Turning to the facts placed on record, it is manifest that in the year 2006, when some of these appeals came up before another learned Division Bench, Their Lordships thought it necessary to refer those appeals to a Full Bench for consideration by passing the order dated 11.08.2006 which is to the following effect:
"These leave applications have been filed seeking leave to file appeals against the common order passed by the learned Single Judge in various applications moved in C.S.No.14 of 1958. Application No.754 of 2002 was filed to implead the applicants as party respondents in C.S.No.14 of 1958. Application No.755 of 2002 was filed to recognize the assignment rights in favour of the applicants, Application No.756 of 2002 was filed to deliver possession of Ac.24.35 guntas of land to an Advocate Commissioner and Application No.757 of 2002 was filed to order mutation in the name of assignees. These applications were moved on 8th of July 2002. The leaned single Judge ordered the applications by an order dated 12th of July 2002. In ail the applications, the order passed was,
“The learned Counsel for the respondents has no objection. He also submits that similar orders were passed by this Court and they were confirmed by the Supreme Court.
Under these circumstances, all the Applications are ordered".
Thereafter, it appears that the petitioners, who are not parties to the suit, filed an application for review, which was dismissed for default on 28th March 2003. Thereafter, applications came to be filed to restore the applications seeking permission to file review. While these applications were pending, the petitioners/appellants filed a memo before the learned Single Judge, submitting that they were not pressing the applications filed for review and restoration. Therefore, the applications to file appeals, were filed with delay of more than 500 days, which was condoned.
Some facts may be summarized as under—
The suit pertains to the year 1958. Final decree was passed in the year 1984. Thereafter, applications came to be filed in the suit, claiming assignments and different orders were passed at different stages. The applicants, who want to be granted leave to file appeals, claim their rights on the basis of sale deeds to an extent of Ac.24.35 guntas in Survey No.77 of Hafeezpet village of Ranga Reddy
However, the learned Counsel for applicants submit that similar matter had already been decided by a Division bench of this Court, and when similar orders were passed in other suits, those orders were set aside by the Division Bench and the third parties, who moved the applications, were ordered to be impleaded as parties and the case was remanded back to the learned Single Judge. In this connection, they have referred to a judgment of the Division Bench of this Court in O.S.A.No.58 of 2002 and batch, dated 10th of June 2003. We have gone through the judgment. It is true that the orders which have been set aside by the Division Bench in those maters are similar to the orders passed in the present matters, but at the same time, the Court has not considered whether the appeal was maintainable or not. It has also not considered whether any rights would have accrued to the appellants in those cases by virtue of sale deeds, which were executed in between the parties when the final decree had not been drawn. Therefore, in our view, the matter needs to be placed before a Full Bench.
Let the papers be placed before Hon'ble the Chief Justice for constitution of a Full Bench".
In the light of the above order, some of these appeals were listed before the learned Full Bench and on 22.07.2010 after hearing the same the learned Full Bench noticed that as there was no reference made by the learned Division Bench on any specific question of law to be adjudicated and answered, and as the learned Division Bench appeared to have felt that in view of the controversy, these matters need to be placed before the learned Full Bench, the learned Full Bench opined that as no specific and definite question of law was framed and referred for examination and adjudication, the appeals could not have been referred to the learned Full Bench without framing such questions of law, if any, and that the adjudication of the appeals mainly depends on the consideration of the factual aspects arising therefrom. Observing so, the learned Full Bench came to a conclusion that it had no jurisdiction to go into the merits of the appeals and the same were remitted to the learned Division Bench for adjudication on their own merits.
Apropos the contentions raised by the learned counsel on either side before me, which are more or less similar to those that were advanced before the learned Division Bench, at the outset it is expedient to note the submissions put forth by both sides for effective adjudication of the controversy in these appeals.
To start with, it is necessary to note the submissions made by Sri K.Ramakrishna Reddy, learned senior counsel appearing on behalf of Sri B.Mahnder Reddy, learned counsel appearing for the appellant society in all these appeals, which are to the following effect:
The learned senior counsel contended that the learned single Judge had no jurisdiction to deal with the applications filed before him and therefore the orders passed by him therein are without jurisdiction, null and void, inoperative and the same are thus liable to be set aside. On facts, the learned senior counsel pointed out that under Section 54 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), on 31.01.1976 the preliminary decree dated 28.06.1963 relating to Sy.No.77 of Hafeezpet village was referred to the Collector for partition, allotment, distribution, as per the scheme of partition set out in the decree and therefore the applications filed by the respondents were not maintainable as this Court thus became functus officio.
It is further submitted that the impugned orders passed by the learned single Judge for delivery of possession of the property on the basis of the prayers made in the applications consequent to the preliminary decree dated 28.06.1963 are nothing but execution of the decree as ordained under Article 136 of the Limitation Act, 1963; and that as under the provisions of Article 136 of the Limitation Act, 1963 for execution of any decree the prescribed period of limitation is 12 years, the applications filed by the respondents for delivery of possession after long lapse of more than three decades are clearly barred by limitation. This submission is apparently made with reference to the applications filed by the respondents and the consequential orders passed thereon by the learned single Judge in pursuance of the preliminary decree dated 28.06.1963.
The learned senior counsel also seeks to place reliance upon a Judgment of the Supreme Court in SURJIT SINGH V/s. HARBAN SINGH {(1995) 6 SCC 50} for the proposition that the provisions of Section 17(1)(e) of the Registration Act, 1908 also attracts when by way of the unregistered deed of assignment, transfer of rights, title and interest in immovable property are sought to be effected.
It is also contended that as contemplated under the provisions of Order VI, Rule 15 of the CPC, the affidavit annexed in support of the applications filed before the learned Single Judge of this Court were not supported by any verification and therefore they were not maintainable on this ground also. It is his submission that the affidavits filed in support of the impugned applications are not in compliance with the requirement of a valid affidavit as laid down under Order XIX Rule 3 of the CPC and that the affidavits filed before the learned Single Judge were not duly verified as is required under the provisions of Rule 15 of Order VI of the CPC and therefore such affidavits were defective in the eye of law and therefore they had no evidentiary value.
It is also pointed out that the impugned orders passed in the abovementioned applications are bereft of reasons in as much as they do not contain concise statement of facts, the points for determination, evidence adduced by the parties, the reasons in support of the impugned orders, as contemplated under Rule 4(2) of Order XX of the CPC.
The learned senior counsel asserted that the present batch of appeals are maintainable placing reliance on the proposition of law that persons who were not party to the suit or application or any proceeding may prefer an appeal with the leave of the Court, and such leave would not normally be denied if the appellants are prejudicially affected by such judgment. In the cases on hand, the appellants are truly affected by the orders passed by the learned Single Judge in as much as the appellants were prior purchasers of the property by way of the registered sale deeds from the respective decree holder way back in the years 1981-82 itself.
The learned senior counsel also drew the attention of this Court to the order dated 10.06.2003 passed by a learned Division Bench of this Court in a similar batch of appeals in O.S.A.No.58 of 2002 and batch whereunder and whereby the learned Division Bench while setting aside the orders passed by the learned single Judge therein, remitted those appeals to the learned single Judge for enquiry. Placing reliance on the aforementioned Judgment of the learned Division Bench, the learned senior counsel prayed for passing of similar orders in the appeals on hand in the light of the fact that the appellant society had, in fact, purchased the property from the decree holder by way of the registered sale deeds.
Lastly, the learned senior counsel contended that the respondents herein played fraud before the learned single Judge in filing the applications as well as obtaining the orders in their favour, which are impugned in the appeals on hand, the Judgment passed by a learned Division Bench in O.S.A.No.58 of 2002 and batch applies in all fours to the present batch of appeals. He therefore prayed that these appeals be allowed by duly setting aside the impugned orders passed by the learned single Judge in the applications referred supra filed by the respondents herein.
Refuting the various contentions raised by the learned senior counsel for the appellant society, Sri Vedula Venkataramana, learned senior counsel appearing for the respondents, at the threshold submitted that the appellant-society is a third party to the entire suit proceedings and it filed the Letter Patent Appeals against the orders of assignment and delivery of possession in favour of the respondents. The appellant society being not a party to the suit is not entitled to prefer this batch of Letter Patent Appeals and hence the Letter Patent Appeals are not maintainable on facts and in law. He submitted that the proper remedy for the appellant is to initiate separate proceedings and the impugned orders of the learned Single Judge cannot be questioned by way of these Letter Patent Appeals. In support of his contention, he heavily relied on the decision of the Apex Court
The learned senior counsel submitted that Application Nos.1207, 1208 and 1209 of 1999 were filed against Respondent Nos.4 to 8 by Respondent Nos.1 to 3 herein to recognize the assignment of rights accrued under the unregistered Assignment Deed dated 09.09.1999 executed by the legal representatives of Defendant No.17, transferring their rights, interest in the property to the extent of Ac.8.34 cents in Sy.No.77 of Hafeezpet Village; to implead them in C.S.No.14 of 1958; and to direct delivery of property by issuing a warrant to the Court Bailiff were not opposed by all the legal heirs of the deceased Defendant No.17, and therefore, there was absolutely no error committed by the learned Single Judge in allowing these applications and that the impugned orders were passed properly taking into consideration of all the material placed on record.
It is also pointed out that similar applications were filed by the first respondent in O.S.A.Nos.22 to 25 of 2004 in as much as he had purchased the share, right and the interest from the legal representatives of Defendants Nos.117 and 118 to an extent of Ac.4.18 guntas in Sy.No.77 seeking to implead them; to recognize their assignment rights; to mutate their names; and to direct the delivery of the property, which were rightly allowed, as the defendants concerned having the share in an extent of Ac.4.18 cents had no objection for allowing the same and accordingly Application Nos.1452, 1453, 1454 and 1455 of 2000, which are the subject matter of O.S.A.Nos.22 to 25 of 2004, were rightly allowed on 10.10.2000 by the learned single Judge after carefully considering the material placed on record.
The learned senior counsel further submitted that in O.S.A.Nos.31 to 34 of 2011 too similar applications were filed by Respondent Nos.1 to 10 before the learned Single Judge with regard to Ac.24.34 guntas in Sy.No.77 part of Hafeezpet in Application Nos.755, 756, 754 and 757 of 2002 respectively seeking to implead themselves on the ground that they had purchased the right of the concerned shareholders; to recognize the assignment rights accrued under the unregistered Deed of Assignment; to deliver possession of the property, and to mutate their names and the same were rightly allowed on 12.07.2002 by the learned single Judge under the impugned orders inter alia taking into consideration the fact that there was no objection from the side of the respondents therein.
The learned senior counsel contended that the appellant society being not a party to the suit preferred appeals against the orders of assignment and delivery of possession in favour of respondents; and that in the light of the preliminary decree dated 28.06.1963 for partition of the suit schedule properties, the Receiver filed a scheme for distribution on 29.01.1971 and direction to deliver the properties was issued on 05.07.1974; and that thereupon this Court, by order dated 31.01.1976 passed in Application No.139 of 1971, referred the matter under Section 54 of the CPC to parcel out the land for passing the final decree of partition of the agricultural lands, and pursuant to the directions, interim report was filed on 18.08.1980, and the Receiver, while reporting that he took possession of the said land on 19.08.1980, sent his second report on 24.10.1980 and thereafter the final report was submitted calling for the objections on 12.06.1981.
The learned senior counsel also pointed out that by way of the alleged 33 sale deeds through which an extent of about Ac.2.00 each was said to have been purchased by the appellant society during the years 1980 and 1981 with the same boundaries by the so-called GPA holder but the said GPA had not seen the light of the day for the reasons best known to the so called GPA holder.
It is further stated that in the meanwhile the State filed Application No.44 of 1982 in C.S.No.14 of 1958 to amend the decree, deleting Items 35 to 38 and 40 in Schedule-IV of C.S.No.14 of 1958 which included Survey No.77 from the preliminary decree, claiming that it was the Government land and on 18.12.1982 Application No.44 of 1982 was therefore dismissed.
It is thus pointed out that challenging the same, an appeal in O.S.A.No.1 of 1985 was preferred by the State before a learned Division Bench of this Court, which by its order dated 24.12.1999 dismissed the appeal. Feeling aggrieved thereby, the State filed a petition for Special Leave to Appeal (Civil) No.7052 of 2000 before the Supreme Court which was also dismissed as withdrawn by order dated 05.05.2000. Thereafter, the State also filed O.S.A.(SR).No. 3526 of 2000 along with an Application No.3527 of 2000 to condone the inordinate delay of 38 years 4 months and 13 days and the learned Division Bench of this Court consisting of Hon'ble Sri Justice B.Subhashan Reddy and Hon'ble Sri Justice G.Bikshapathy (as Their Lordships then were) dismissed the said O.S.A.(SR) No.3526 of 2000 by order dated 07.02.2001. Pursuant to this order, it is put forth by the learned senior counsel that the delivery of possession was given by the Bailiff to the respondents on 11.06.2001. Where the Government also filed a Petition for Special Leave to Appeal (Civil) No.10622-10623 of 2001 against the order dated 07.02.2001 passed by the learned Division Bench in OSA (SR) No.3526 of 2000 and Application No.3527 of 2000, the Apex Court dismissed the said petition by order dated 16.07.2001 duly noticing that there was inordinate delay of 38 years 4 months and 13 days in approaching the Court and accordingly the Supreme Court rejected the contention put forth by the Government that the delay needs to be condoned as the petitioner happened to be the State and also that there was a jurisdictional error.
Thereafter, the Government preferred OSA Nos.19 to 26 of 2001 against the Assignment Rights in Sy.No.77 of Hafeezpet Vilalge in favour of the respondents against the very same impugned orders, seeking cancellation of the assignment rights by contending that the said orders are hit by Section 17 of the Registration Act, 1908 but the said appeals were also dismissed by the learned Division Bench of this Court, consisting of Sri Justice B.Subhashan Reddy and Sri Justice P.S.Narayana (as Their Lordships then were) by order dated 24.08.2001. However, the learned Division Bench while dismissing the appeals in OSA Nos.19 to 26 of 2001 on merits granted leave to file appeals and condoned the delay, holding that the Government was a party to the preliminary decree as Defendant No.53 and filed vague written statement without any material averments, and further held that the judgment passing the preliminary decree had become final and the earlier attempts of the Government to file appeals against the preliminary decree with inordinate delay of more than 38 years was also dismissed which was confirmed by the Supreme Court, and therefore the orders of the learned Single Judge, directing the delivery of possession had thus become final. The said order was also questioned by the Government by filing a Petition for Special Leave (Civil) Nos.4463-4470 of 2002 and the Supreme Court by its order dated 08.04.2002 dismissed the said petitions.
Further more, the concerned respondents filed applications to recognize their rights accrued owing to purchase of the subject lands from the concerned preliminary decree shareholders and the assignors who were having specific share in the land which was also clearly earmarked and as there was no objections, the learned Single Judge passed orders duly recognizing the assignment, impleading them as defendants, delivery of possession and the consequential mutation. It is stated that the learned Single Judge in Application No.1152 of 2000 by order dated 19.11.2002 madeinter alia a specific observation stating that the Receiver filed a compliance report effecting possession of the said admeasuring Ac.24.35 guntas in favour of the applicants therein, who are the respondents in some of the present appeals and the compliance report was in fact recorded by the Court in that application. In this backdrop of the case, the learned senior counsel submitted that the judgment dated 10.06.2003 passed in OSA No.58 of 2002 and batch has no application to the facts of the present batch of appeals.
The learned senior counsel also put forth the case of his clients that Defendants Nos.228 to 234 executed Assignment Deed in favour of the respondents, as contemplated under the provisions of Order XXI of the CPC and as the preliminary decree holders were lawfully entitled to assign their rights, the assignees filed the proper applications seeking to implead themselves recognizing their rights of assignment and to delivery of possession; and to mutate their names in the place of their assignors; and the said applications were accordingly ordered on 12.07.2002 and delivery of possession was also made by the Receiver-cum-Commissioner on 19.11.2002. Subsequently, Application No.1152 of 2002 was closed. It is stated that the Government filed Review Application Nos.1408 to 1415 of 2001 against the judgment dated 24.08.2001 passed by a learned Division Bench in OSA Nos.19 to 26 of 2001 and the said review petitions were also dismissed, by judgment dated 31.10.2003, which was reported as STATE OF A.P. Vs. PALTATI SHARAVAN KUMAR {2004 (4) ALD 261 (DB)}.
It is also contended that the appellant society filed Application Nos. 1483 and 1486 of 2002 in C.S.No.14 of 1958 against the respondents in these appeals to permit the
appellant society to file a review petition against the orders dated 12.07.2002 in Application Nos.754, 755, 756 and 757 of 2002 in C.S.No.14 of 1958, contending that the appellant society without being heard was dispossessed from the land in question in the light of the said orders and that they were forcibly evicted with the help of the police by preparing the panchanama without having any right or title over the subject property and after dispossessing the appellant society by the respondents, the respondents commenced the development activity without obtaining necessary permissions from the competent authorities including the concerned municipality and by the said reason, the appellant society and its members were put to irreparable loss and were also prejudiced owing to the said actions and therefore, they sought the leave of this Court to file the review petition and to implead the appellant society as defendant in the suit and to pass interim injunction restraining the respondents herein from developing the said land by appointing the Advocate Commissioner to note down the physical features of the land in an extent of Ac.24.35 guntas in Sy.No.77 of Hafeezpet and to direct the Receiver-cum-Commissioner to take over the possession the said land from the respondents and to hand over the same to the appellant society by condoning the delay in filing the review petition in Application Nos.754, 755, 756 and 757 of 2002. The said applications were dismissed for default of the appellant on 28.03.2003.
appellant society to file a review petition against the orders dated 12.07.2002 in Application Nos.754, 755, 756 and 757 of 2002 in C.S.No.14 of 1958, contending that the appellant society without being heard was dispossessed from the land in question in the light of the said orders and that they were forcibly evicted with the help of the police by preparing the panchanama without having any right or title over the subject property and after dispossessing the appellant society by the respondents, the respondents commenced the development activity without obtaining necessary permissions from the competent authorities including the concerned municipality and by the said reason, the appellant society and its members were put to irreparable loss and were also prejudiced owing to the said actions and therefore, they sought the leave of this Court to file the review petition and to implead the appellant society as defendant in the suit and to pass interim injunction restraining the respondents herein from developing the said land by appointing the Advocate Commissioner to note down the physical features of the land in an extent of Ac.24.35 guntas in Sy.No.77 of Hafeezpet and to direct the Receiver-cum-Commissioner to take over the possession the said land from the respondents and to hand over the same to the appellant society by condoning the delay in filing the review petition in Application Nos.754, 755, 756 and 757 of 2002. The said applications were dismissed for default of the appellant on 28.03.2003.
It is further pointed out that Application No.574 of 2003 was filed by the appellant society seeking leave of the Court for engaging another advocate and it also filed a memo dated 12.03.2004 in the said Application stating that they had filed review petition against the common order dated 12.07.2002 in Application Nos.754, 755, 756 and 757 of 2002 but the appellant society failed to prosecute the applications for review or restoration of the same diligently for the reasons best known to it which were unexplained herein.
The learned senior counsel submitted that the appellant society instituted a suit in O.S.No.359 of 2001 on the file of the Principal Senior Civil Judge, Ranga Reddy District, seeking declaration and injunction in respect of the very same land which is pending, and also filed L.G.C.No.65 of 2002 before the Special Court under A.P. Land Grabbing (Prohibition) Act in respect of the self-same land which was dismissed by order dated 10.07.2003 and the said order was confirmed by a learned Division Bench of this Court in Writ Petition No.15260 of 2003. Therefore, the appellant society cannot be permitted to initiate concurrent proceedings.
It is also urged that the appellant society has no locus standi to question the orders of the assignment to which the assignors/respective defendants reported no objections during their lifetime, more particularly when those orders were already questioned in appeal before a learned Division Bench by the Government, which were confirmed by it and also by the Supreme Court. Thus, the said orders are also binding on the appellant society, as it was never in possession of the said land and it was therefore never dispossessed as alleged by it. Even assuming for the sake of argument that it was dispossessed from the land in question, it has a right to get impleaded itself as a party to the suit, claiming right being the purchaser of their vendors, who were the parties to the suit and once they failed to come on record, they are not entitled to seek any relief in the suit in question. Further, the orders passed by the learned Single Judge under Rules 10 and 16 of Order XXVI of the CPC duly transferring the assignment rights in favour of the assignees can only be disputed by the assignors or persons claiming through the assignors, and in the instant cases, the assignors had reported no objection and the legal heirs confirmed the same.
It is further submitted that merely because the assignment deed is an unregistered one, that will not partake the right of the assignors to take delivery of the possession and thus the delivery to the nominee of the assignors cannot also be questioned, more particularly by a person who is not at all a party to the suit proceedings. It is also stated that the appellant society based its claim merely on the so-called sale deeds of the years 1981 and 1982 in respect of unidentifiable lands executed by the GPAs but the original GPAs were not filed for the reasons best known to it though the legal representatives of the assignors have denied the execution of any such GPAs. The appellant society alleged to have purchased the properties which are the subject matter of the suit pending before this Court and their alleged vendors were fighting against the claim of the Government during the last 20 years, but the appellant society did not choose to get impleaded itself or to contest the claim of the Government because of which delivery was delayed. On the other hand, the appellant society admitted in the affidavit filed in OSA Nos.1307 to 1314 of 2002 that they had approached the Government seeking allotment of land to it. When the appellant society tried to interfere, some of the defendants even obtained injunction against it, and notwithstanding the same, the appellant society did not choose to assert its claims by seeking to vacate the injunction granted against it. Thus, the claim of the appellant society in any event is clearly and completely barred by limitation. By this, it is also stated that the appellant society was not in possession of the subject land at any point of time.
Lastly, the learned senior counsel pointed out that when the appellant society is said to have purchased the said land by way of 33 sale deeds purchasing about Ac.2.00 each, admittedly, the allotment was not made and possession of the entire land was with the Receiver. However, surprisingly each of the sale deed contain the very same boundaries and therefore, the land covered by the said sale deeds is unidentifiable. Further, even according to the report of the Revenue Divisional Officer, part of the land in Sy.No.77 was lost for Railway line, Manjeera water line and the actual extent of land available as on 10.08.1984 was determined and consequently the shares proposed earlier were also reduced. The appellant society filed a copy of lay out to an extent of Ac.94.00 as against the claim for Ac.62.00. However, the original GPAs have not seen the light of the day and the sale deeds are therefore void for uncertainty. It is further contended that the validity of the third party claim like appellant society is beyond the scope of the application for assignment and delivery of possession which is subject matter of the impugned orders. Further, such claims are even beyond the scope of the suit for partition, and the right to take delivery of possession of the concerned defendants cannot be denied and the concerned respondents took delivery of possession as the assignees of the assignors/respective defendants reported no objections for the assigning their rights in favour of the assignees. Therefore, on this ground also the appellant society cannot seek adjudication of the claim in the appeals against the orders which worked itself out and were confirmed in various earlier proceedings. Thus, it is submitted that there is no error committed in the impugned consent orders. The appellant society is yet to establish its right, and having not chosen to get impleaded itself in the suit, it cannot complain that the impugned orders are passed without enquiry into the questions which never arose for adjudication. He therefore prayed that this batch of appeals be dismissed duly confirming the impugned orders passed by the learned single Judge.
For effective adjudication of the controversy in this batch of appeals, I have heard Sri M.A.Bari, learned Advocate Receiver, who put forth before me the complete developments that took place in the suit and various orders that were passed from time to time which pertain to several proceedings connected to this batch of appeals. The learned Advocate Receiver submitted that in the year 2002 he was appointed by this Court in Application No.541 of 2002 as a Receiver and since then he has been discharging the duties as such along with one B.Shyamsundar Rao. He drew my attention to the orders passed in Application Nos.19 and 114 of 1973 and the orders passed in Application No.44 of 1982 and also the orders of the Supreme Court, whereunder and whereby the preliminary decree was upheld by the Supreme Court. He also pointed out that in view of the various orders passed by this Court, which were later confirmed by the Supreme Court, the suit schedule lands, including item No.37, are available for partition. He also invited my attention to the judgment rendered in the suit, wherein inter alia a finding is recorded to the effect that the subject lands are not Jagir lands, basing on the deposition of D.W.26 from Jagir Administration, who had once deposed to the effect that the lands in item Nos.37 and 40 were taken over by the Jagir Administrator under the mistaken impression that these villages are Jagir lands, but noticing the mistake committed by them and duly correcting the same, later they were released to the sharers. He also stated that the Government had conducted enquiry subsequent to the preliminary decree and determined that these two villages as Inam Altamaga which was clearly outside the purview of Inam Abolition Act as Vazim Atiyat enquiry was only limited to settling commutation amounts only. He stated that these two properties were given in perpetuity by a Royal Decree in exchange of taking over of two other properties of Kursheed Jahi Paigah for public purpose, which were purchased and self acquired. The Government had also agreed for symbolic delivery of these two items as stated in its counter affidavit filed in Application Nos.19 and 114 of 1973 which had attained finality. He also submitted that the preliminary decree is a decree passed under the provisions of Rule 18(2) of Order XX of the CPC and hence the order passed at the instance of the Receiver for his assistance cannot be construed as a decree passed under Order XX Rule 18(1) of the CPC. He also brought to the notice of this Court about the orders passed in O.S.A.Nos.19 to 26 of 2001, wherein the Government had filed appeals against the very same orders which were challenged in this batch of appeals. The O.S.As. were dismissed and the same were confirmed by the Supreme Court and even the Review petitions filed before the Supreme Court as well as thereafter before this Court were duly dismissed. The learned Receiver therefore prayed that the settled issues cannot be allowed to be unsettled.
The learned Receiver also submitted that the Government never raised the issue of release in their pleadings but only sought to amend the decree which prayer was rejected by this Court as well as the Supreme Court. It is therefore his specific submission that after detailed examination of the matter, the Government issues necessary instructions from time to time to the Revenue authorities concerned to do the needful including mutation of the records in the names of decree holders/registered assignee decree holders in respect of the subject lands covered by the preliminary decree passed by this Court in C.S.No.14 of 1958 which was confirmed by the Supreme Court.
The learned Receiver also brought to the notice of this Court that the appellant society and the respondents have not filed any application seeking final decree in their favour establishing and proving their right and entitlement to the subject land. Therefore, no final decree is passed so far in respect of the subject lands by this Court. Unless final decree is passed, the ownership of the property cannot be decided in a suit for partition, notwithstanding the fact that the document is registered or otherwise. The learned Receiver also pointed out that the recognition of an unregistered assignment deed and possession of the property based on such deed cannot create or curtail the rights of the parties. He finally submitted that in this backdrop of the case, it is always open to the parties concerned to file necessary applications for final decree bringing forth all the facts before this Court and obtain the same.
It may thus be noted that pursuant to the orders passed by various Courts, the action taken by the Government in this regard shows that the subject lands are not Government lands and therefore duly establishes and proves that the subject lands were not allotted in favour of the appellant society and consequently the appellant society is never in possession of the subject lands.
I have also gone through the separate Judgments rendered by the learned Judges in this batch of appeals including the material placed on record. It may be mentioned here that the learned senior counsel appearing on either side and the learned Receiver placed reliance on various precedential law in support of their contentions, to which reference may be made infra at an appropriate stage.
Considering the rival contentions, which are identical to those put forth before the learned Division Bench as stated supra, the points that arise for my determination in this batch of appeals are thus:
(1) Whether the present batch of appeals are maintainable having been preferred by the appellant society being not a party to the suit and without availing the remedy available under the provisions of Order XX1 of the CPC, if they are aggrieved by the impugned orders?
(2) Whether the order passed by the learned Single Judge in Application No.139 of 1971 dated 31.01.1976 is a decree in a suit for partition of the property and separate possession of share therein as contemplated under Rule 18(1) of Order XX read with Section 54 of the CPC?
(3) Whether this Court, after passing the order dated 31.01.1976 in Application No.139 of 1971 forwarding the matter to the Collector under Section 54 of the CPC, has become functus officio for the purposes of separation and allotment of a share to each of the parties under the scheme incorporated in the decree?
(4) Whether any fraud, as alleged, has been played in obtaining the impugned orders by the respondents before the learned single Judge?
(5) Whether the impugned orders passed by the learned single Judge are bereft of reasons and in the light of the unique facts and circumstances of these cases, whether the impugned orders are legal and valid?
(6) Whether the affidavits appended to the applications filed by the respondents are duly verified as contemplated under the provisions of Order VI Rule 15 of the CPC?
(7) Whether the provisions of Section 17 of the Registration Act, 1908 attract the so-called assignment deeds executed in favour of the respondents by the assignors?
(8) To what relief?
Apropos the maintainability of the present batch of appeals, as can be seen from the material placed on record, it is abundantly clear that the appellant society is not a party to the main suit or any proceedings arisen therefrom before the learned single Judge. Although the appellant society traces its title through the respective decree holders by way of registered sale deeds of the years 1981 and 1982, it never entered into the shoes of the preliminary decree holders and having obviously failed to come on record in C.S.No.14 of 1958, they are not entitled to prefer these appeals as their so called objections are required to be enquired into in detail with reference to the rival contentions by leading necessary oral and documentary evidence to establish and prove its case. On the other hand, the appellant society has a statutory remedy to avail for redressal its grievance under the provisions of Order XXI of the CPC. Under Rules 97, 99, 100 and 101 thereof, the appellant society can approach the Executing Court Executing Court
Reference in this regard may be made to a Judgment of the Supreme Court in N.S.S.NARAYANA SARMA v. GOLDSTONE EXPORTS (P) LTD. {(2002) 1 SCC 662}. In the said case, the Supreme Court had occasion to deal with a case arising out of the same suit in C.S.No.14 of 1958 and held thus:
“15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from “any person”. From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with “all issues” relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case.
19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing court it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simpliciter. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned Single Judge and the Division Bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Pygah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State Government under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the Single Judge as well as Division Bench of the High Court, we are constrained to observe that the said orders are based on a complete misreading of the case of the appellants and misconception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a Single Judge at the first instance.”
[Emphasis is mine]
Applying the above law laid down by the Supreme Court to this batch of appeals, it is axiomatic that the appellant society albeit not a party to the suit had straight away preferred the present batch of appeals which it is not entitled to do so. On the other hand, it could have invoked the appropriate provisions contained in Order XXI of the CPC if it is aggrieved by the impugned orders passed by the learned singe Judge and the appellant society failed to avail such remedy for the reasons best known to it.
In support of the contention that the appellant society is entitled to prefer the present batch of appeals, the learned senior counsel appearing for the appellant society placed reliance on a Judgment of the Supreme Court in SMT. JATAN KANWAR GOLCHA Vs. M/S.GOLCHA PROPERTIES PRVIATE LTD. {AIR 1971 SC 374} wherein it was held thus:
“In our opinion apart from Rule 130 to which reference has been made by the High Court the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment.”
To the said effect, reliance was also placed on the Judgment of the Supreme Court in STATE OF PUNJAB Vs. AMAR SINGH
“83. Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co.[(1894) 2 Ch. 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made co nomine a party. ………”
Per contra, the learned senior counsel appearing for the respondents seeks to place reliance upon a Judgment of the Supreme Court in M.PURNACHANDER RAO Vs. NAWAB MAZAHARUDDIN KHAN {(2008) 12 SCC 433}, which arose from the suit in C.S.No.7 of 1958, to support his contention that the appellant society being not a party to the suit is not entitled to prefer this batch of appeals. In the said case, Their Lordships of the Supreme Court observed that a person, who is not party to the original proceedings but claiming an interest in the subject matter of the proceedings cannot maintain a Letters Patent Appeal and the remedy for such person is to initiate separate proceedings before the appropriate Court to vindicate his grievance and that he has no locus standi to prefer any such Letters Patent Appeal. The said Judgment of the Supreme Court has complete application to the facts of the present batch of appeals. In that context, the Supreme Court in the said Judgment inter alia observed as under:
“13. Learned Senior Counsel appearing for the appellant, after taking us through the chequered history of the case and by drawing our attention to the various proceedings submitted that Items 230-54 which have been excluded in the preliminary decree and Item 234 being Raidurg land which is an excluded property, the action of the respondents in including the same in the final decree cannot be sustained. In such circumstances, according to him, the appellant is an aggrieved person and as soon as he came to know about the various orders including the last one, namely, the final decree, filed the original side appeal before the Division Bench of the High Court. He further contended that the High Court is not justified in dismissing the appeal on the ground of limitation.
14. We have perused all the earlier proceedings as well as documents in respect of the property in question. It is not in dispute that the appellant, who purchased 4 acres of land by way of sale deed dated 11-10-2003 from his vendor, heavily relied his title to the same from Shri Waliullah Hussaini who was Defendant 41 in CS No. 7 of 1958 on the file of the High Court.
………
16. It is not in dispute that Defendant 41 is Shri Waliullah Hussaini from whom the appellant claims title through various persons. In view of the same, the claim of the appellant that the very same property has been shown in the final decree and allotted to one of the sharers in spite of his possession for several decades, cannot be gone into by the High Court after passing a final decree even in the year 2003. Likewise, the allegation that though the lands in Items 232-54 in Schedule ‘A’ to preliminary decree concerning Defendants 2-12 and 14-22 stand excluded and however shown in the final decree dated 26-12-2003 which is in violation of the preliminary decree, cannot be agitated by filing an appeal before the High Court. We are of the view that the proper remedy for the appellant is to initiate a separate proceeding and the same cannot be questioned by way of a letters patent appeal before the High Court (sic by a person) who is not a party to the entire proceedings. In these circumstances, we refrain from considering various details projected before us.
17. In the light of the above discussion, we agree with the conclusion arrived at by the High Court and dismiss the above appeal. However, the appellant is at liberty to initiate separate proceedings before the appropriate court to vindicate his grievance for which we express no opinion. With the above observation, the appeal is dismissed. No costs.”
(Emphasis is mine)
Sri M.A.Bari, learned Receiver also invited the attention of this Court to the judgment rendered in the suit, wherein, inter alia a finding is recorded to the effect that the subject lands are not Jagir lands, based on the deposition of D.W.26 from Jagir Administration, who had deposed to the effect that the lands in item Nos.37 and 40 were taken over by the Jagir Administrator under the mistaken impression that these villages are Jagir lands, but later after due verification of the records they were released to the sharers. It was also submitted that the Government had conducted an enquiry subsequent to the preliminary decree and determined that these two villages as Inam Altamaga which was outside the purview of Inam Abolition Act Vazim Atiyat enquiry was only limited to settling commutation amounts only. He stated that these two properties were given in perpetuity by a Royal Decree in exchange of taking over of two other properties of Kursheed Jahi Paigah for public purpose, which were purchased and self acquired. The learned Receiver also placed reliance on the Judgment of the Supreme Court inM.PURNACHANDER RAO Vs. NAWAB MAZAHARUDDIN KHAN {referred to supra} in support of his submission that the present appeals are not maintainable keeping in mind the fact that the appellant society was not a party to the suit proceedings.
As can be seen from the record, it is evident that the appellant society all along based its claim merely on the sale deeds of the years 1981 and 1982 in respect of unidentifiable lands executed by the GPAs but for the reasons best known to it, the original GPAs were not produced before the Court for its perusal and also to substantiate and prove its case. On the other hand, to further compound this tangle, the legal representatives of the assignors had also denied the execution of any such GPAs divesting their right and title over the subject lands. While it is the case of the appellant society that it purchased the lands which are the subject matter of the suit pending before this Court and that their alleged vendors were fighting against the claim of the Government during the last more than two decades; the appellant society did not choose to get impleaded itself or to contest the claim of the Government which conduct on the part of the appellant society clearly shows contrary to their pleadings. Notwithstanding this, surprisingly the appellant society stated in the affidavit filed in OSA Nos.1307 to 1314 of 2002 to the effect that they had approached the Government seeking allotment of the subject land to it. It is thus manifest that it was not in possession of the subject land and that it was therefore not dispossessed therefrom as alleged by it. Under those circumstances, when the appellant society tried to interfere with the subject land, some of the defendants had approached the Court of law and obtained injunction against it. However, it did not choose to initiate legal proceedings in seeking to vacate the said injunction granted against it. On this count, the claim of the appellant society can be said to be wholly barred by limitation.
Therefore, viewed from any angle, it is clear that the appellant society was not in possession of the subject land on its own pleadings and that it was not affected by the impugned orders in any away. Even otherwise, if the appellant society is still aggrieved by the impugned orders being not a party to the suit proceedings, as per the law laid down by the Supreme Court in M.PURNACHANDER RAO Vs. NAWAB MAZAHARUDDIN KHAN {referred to supra}, the appellant society is necessarily required to initiate separate proceedings before an appropriate forum to vindicate its grievance.
At this stage, it may be noticed that the appellant society is said to have instituted a suit in O.S.No. 359 of 2001 on the file of the Principal Senior Civil Judge, Ranga Reddy District, seeking declaration and injunction in respect of the subject land which is still pending adjudication and that it also filed a Land Grabbing Case in L.G.C.No.65 of 2002 before the Special Court under A.P. Land Grabbing (Prohibition) Act in respect of the self-same land which was dismissed by order dated 10.07.2003. Challenging the same, Writ Petition No.15260 of 2003 was filed before this Court which was dismissed confirming the order passed in L.G.C.No.65 of 2002. It is thus apparent that the appellant society initiated parallel proceedings on the very same subject land. On this ground also, the appeals preferred by the appellant society before this Court are not maintainable as the suit in OS.No. 359 of 2001 is said to be still pending adjudication. Having due regard to the said law laid down by the Supreme Court, the decisions relied upon by the appellant society has no application to the present batch of appeals.
Furthermore, the action taken by the Government in compliance with the orders passed by various Courts copiously makes it clear that the authorities concerned made a request to the Government to permit the Collector, Ranga Reddy District, to effect mutation in the land records in respect of the lands in Survey Nos.145, 163 and 172 of Hydernagar and in Survey Nos.77, 78, 79 and 80 of Hafeezpet Village of Balanagar and Serlingampally Mandals, Ranga Reddy District, which are a part of subject matter of the suit in C.S.No.14/58. Pursuant to the said request, having carefully examined the matter the Government permitted the Collector, Ranga Reddy District, to effect the mutation in Land Records in respect of the lands aforementioned. However, the said permission was accorded subject to the provisions of the Urban Land
That apart, the action initiated by the Government shows that after having examined the matter based on the material placed before it, the Government took note of the fact that the District Collector, Ranga Reddy District, had filed Rev.WPMP.Nos.11425 and 11426 of 2006 in W.P.No.10605 of 1997 claiming the lands situated in escheated villages; and that those review petitions ended in dismissal; and that when those dismissal orders were challenged before the Supreme Court in SLP.(Civil) No.1574/2008, it confirmed the orders passed by this Court. Under those circumstances, the Government came to the conclusion that there was no other option available with it except to simply implement the orders passed by this Court; and that the lands situated in the escheated villages as per Muntakab covered under the suit schedule properties in C.S.No.14 of 1958 were released; and that the mutation in the names of decree holders were to be effected duly following the orders passed by this Court as well as the Apex Court. In consequence thereof, the District Collector, Ranga Reddy District, was informed that in addition to the clarifications issued by the Government; the lands covered under escheated villages which includes Ghansimiyaguda Village of Ranga Reddy District as per Muntakab covered under the suit schedule properties (annexed in schedule-IV & IV-A) of the preliminary decree passed by this Court in C.S.No.14 of 1958, which was also confirmed by the Apex Court, be mutated in the names of decree holders/registered assignee decree holders. In this scenario of the matter, the District Collector, Ranga Reddy District, was requested to initiate further action duly following the provisions of the A.P. Agricultural Ceiling Act, 1973 and the A.P.R.O.R. Act, 1989.
From the above, it is inter alia obvious that the appellant society was neither allotted any land by the Government nor was it in possession of the subject land at any point of time. Therefore, on this ground also, the appeals preferred by the appellant society are not maintainable.
Furthermore, the question of limitation now being argued before this Court at the time of hearing the appeals do not find mention in the grounds of appeals. Therefore it is manifest that there is no pleading and proof thereof on this aspect. However, the learned Senior Counsel for the appellant vehemently advanced his arguments as to the question of limitation in filing the applications filed by the respondents before the learned single judge. But the fact remains that neither there was any pleading to that effect nor was it established and proved by way of cogent and convincing evidence. In the light of this, the submission made by the learned senior counsel appearing for the appellant as regards the limitation applicable to the filing of the applications before the learned single Judge and that those applications are barred by limitation, cannot be countenanced.
For the reasons discussed hereinabove, the appellant society being not a party to the main suit and being a third party, is not entitled to prefer the present batch of appeals and these appeals are thus not maintainable for more than one reason.
In so far as the order dated 31.01.1976 passed by the learned single Judge in Application No.139 of 1971 vis-à-vis the provisions of Rule 18(1) of Order XX read with Section 54 CPC is concerned, it is evident from the material placed on record that in the year 1963 a compromise decree was passed in the suit in C.S.No.14 of 1958 on 28.06.1963 and the subject land under the present batch of appeals pertains to Survey No.77 of Hafeezpet Village in Ranga Reddy District and covered by Item-37, Schedule-IV of the preliminary decree. Pursuant thereto, the Receiver-cum-commissioner filed an Application No.139 of 1971 under Rule 1 of Order XL read with Section 151 of the CPC to hear and adjudicate the issues relating to (i) as to the value of the lands shown in the Lists-I and II enclosed therewith should not be done in accordance with the provisions of the Agricultural Lands and Tenancy Act and the notifications issued thereunder; and (ii) as to why a scheme of distribution of the claims of the parties in agricultural and the other lands shown in the Lists-I and II should not be prepared for approval of the Court. On 01.11.1971 the said application was made and Defendant Nos.157 and 206 filed their counter averring that there were no protected tenants in respect of the said agricultural land. In the counter, it was also contended that the Commissioner should have come prepared with a proper scheme instead of involving the parties to a future litigation which could have been avoided, had he been diligent enough. Considering the averments and after hearing the parties concerned, the learned judge passed an order on 31.01.1976 which is to the following effect:
"The parties have not been able to agree upon the allotment of the extents of land to the share of each one of them in accordance with the decree of this Court. Nor have they been able to suggest the name of a surveyor who is willing to take up the work and parcel out the lands in accordance with the scheme accepted under the final decree. The matter has, therefore, to be forwarded to the Collector under Section 54 CPC for the purpose of separation and allotment of a share to each of the parties under the scheme incorporated in the final decree. The District Collector, Hyderabad Hyderabad
The material placed on record reflects that pursuant to the said order, the Revenue Divisional Officer on 18.08.1980 by his communication bearing No.C/3519/1979 addressed to the Receiver-cum-Commissioner informing him that a complete survey of the area covered by Survey No.77 was made and it was found that an extent of Ac.17.34 guntas was covered by Manjeera Water Reservoir and its buildings; and an extent of Ac.8.16 guntas was in the possession of the Railways including Railway Station and its quarters; and that a total extent which had been deducted from Sethwar comes to Ac.33.15 guntas in respect of Survey No.77. After deletion of the said extents, the net extent of land available for distribution among the shareholders was Ac.94.16 guntas and the said extent of land was divided among the defendants as per the shares shown in the preliminary decree dated 28.06.1963 in proportion to their share values. That apart, it was also noticed that two roads are passing through Survey No.77 covering an extent of Ac.6.00 and thus the individual shares were so divided enabling them to reach their allotted extent of land from one of the two so-called roads. In doing so, care and caution was also duly appeared to have been taken to completely ensure that all the shareholders get reasonably similar kind of the land; and that the extent of land covered by Manjeera Water Reservoir as well as the Railways were duly excluded from such sub-division; and that it was kept open to the parties to claim compensation for the such extent of deletion of land due to the Manjeera Water Reservoir and the Railways.
It is thus clear from the record that the individual sub-division of the land was completed and the boundary stones were also fixed as shown in the map appended therewith. It was also indicated that the survey of other land was in progress and next report would be submitted as and when the survey was completed. On the basis of the said report dated 18.08.1980, the matter was placed before the learned Single Judge when an order dated 12.06.1981 was passed in Application No.139 of 1971 to the following effect:
"The Collector has reported that in view of large volume of work that has to be done and the large extent of the land involved and several shares to be demarcated, time may be extended for completion of the work. The Collector may be addressed to get the work completed and submit the report on or before 14.08.1981.
Mr.P.Narayanarao, Advocate-Receiver has submitted a report with regard to partition of all other survey numbers except Sy.No.80 of Hafeezpet and Sy.No.172 of Hydernagar. The Advocate-Receiver reports that he has given notice of the report to all parties that are represented through Counsel or appearing in person. He may also affix the notice on the notice board of the High Court that the parties may file their objections, if any, to the report, the objections to be filed on or before 03-07-1981. Call on 03-07-1981.
Subsequent to the said order, a report was submitted on 13.07.1984 by the Receiver-cum-Commissioner to the effect that even before passing of the preliminary decree and the judgment in C.S.No.14 of 1958 dated 28.06.1963, this Court appointed a Receiver to take possession of properties from the heirs of Nawab Himayat Nawaz Jung, Defendant No.1 and who were in possession of the properties. The said Receiver accordingly took possession of the properties. After passing of preliminary decree, the Advocate-Commissioner was appointed to work out the scheme of the partition. After appointment of the Commissioner, an Engineer was also appointed for valuation of the suit schedule movable and immovable properties, and basing on their reports, this Court gave directions from time to time to the then Receiver and Commissioner to prepare a scheme for partition of immovable properties. Accordingly, the Advocate Commissioner prepared a scheme for distribution of urban immovable properties in Application Nos.73 of 1970 and the scheme was accepted by this Court in the said application and the Receiver-cum-Commissioner was directed to prepare a suitable scheme of partition in respect of the agricultural lands belonging to Nawab Khurshid Jah estate by order dated 29.01.1971.
In the above backdrop of the matter, at that stage, Application No.139 of 1971 came to be filed by the Receiver filed for partition of the suit schedule agricultural lands. In as much as it was not easy to distribute and allot the shares, he got prepared a scheme of partition whereby land was divided to the shareholders indicating the survey number, either in whole or part thereof. The Advocate-Commissioner also divided the agricultural lands under different categories by way of three lists and the extent of lands in Hafeezpet were covered by list-I which was sub-divided into two separate groups, as the lands at Hydernagar and Hafeezpet were in possession of the Government and the lands at Nacharam and Lalaguda were in possession of the third parties. Thus, he reported that the extent of lands covered by List-I relating to the villages of Hyderguda and Hafeezpet were taken up for distribution as the lands were in possession of the Government and the Government being party in the suit. The earlier Receiver also filed Application No.268 of 1966 against the Government to handover the possession of the lands at Hyderguda to him much before the partition of the agricultural lands. Thereafter, Application Nos.19 and 114 of 1973 came to be filed for possession of lands situated at Hafeezpet, to which the Government filed its counter indicating that the Government was ready to give symbolic possession of the said lands, and accordingly on 05.07.1974 the above applications came to be ordered.
While things stood thus, subsequent to the order dated 31.01.1976 the preliminary decree was sent to the District Collector for partition of the properties by metes and bounds, as it was agricultural land. Application No.44 of 1982 was filed by the Government seeking amendment of the decree on the ground that the said lands belonged to it which was dismissed on 18.12.1982. On the basis of the allotment details furnished by the Revenue Divisional Officer, Chevella, the total extent in Survey No.77 is Ac.127.31 guntas and the net plan area of Ac.94.16 guntas was available for distribution after deducting the area of Ac.33.35 guntas, and Defendant No.39 - Nawab Khaisaruddin Khan was allotted Ac.24-89 cents and after his demise his legal heirs were brought on record as Defendants Nos.228 to 234. The share of Defendant No.31, succeeded by Defendants Nos.228 to 234. Survey No.77 of Hafeezpet was allotted to various shareholders and Defendant No.17 - Nawab Hameeduddin Khan was allotted to an extent of Ac.8.34 cents. The said report dated 13.07.1984 submitted by the Advocate Commissioner along with a memo before the Court which contained several survey numbers covered by preliminary decree. On the basis of the said report, an order dated 10.08.1984 was passed in Application No.139 of 1971 in C.S.No.14 of 1958 by the learned Single Judge indicating that as the Receiver sought in the said report to permit him to deliver the land to the respective parties as per the decree and 33 persons/shareholders were shown in respect of Survey No.77 and 4 with regard to Survey No.79. It was also submitted in the said report that 33 persons were entitled to the said land and permission was sought to deliver the said land to the above 33 person. In as much as the said report was not opposed, this Court passed an order on 10.08.1984 permitting delivery of the land to these 33 persons.
Further, Sri M.A.Bari, learned Receiver, also drew the attention of this Court to the orders passed in Application Nos.19 and 114 of 1973 and in Application No.44 of 1982 and the orders of the Supreme Court, whereby the preliminary decree passed in the suit was upheld by the Supreme Court. The learned Receiver also submitted that the Government had also agreed for symbolic delivery of these two items as stated in its counter affidavit filed in Application Nos.19 and 114 of 1973 which have attained finality. He also submitted that the preliminary decree is a decree passed under the provisions of Rule 18(2) of Order XX of the CPC and hence the order passed at the instance of the Receiver for enabling him to do the needful cannot be construed as a decree passed under Order XX Rule 18(1) of the CPC. Incidentally, he also brought to the notice of this Court about the orders dated 31.01.2003 passed in the review applications filed in O.S.A.Nos.19 to 26 of 2001 by a learned Division Bench of this Court in STATE OF ANDHRA PRADESH Vs. PALTATI SHARAVAN KUMAR {2004 (4) ALD 261 (DB)}, wherein the Government had earlier filed appeals against the orders similar to that were challenged in this batch of appeals. The learned Division Bench while dismissing the review applications filed in the said appeals inter alia held thus:
“16. A careful reading of the Judgment in O.S.A.No.19/2001 and Batch would clearly disclose that apart from the aspect of res judicata, other reasons also had been recorded. At any rate, these contentions may be construed as those touching the merits and demerits of the matter and definitely may not attract the ingredient 'error apparent on the face of record'. As already stated supra, though the Review Applications can be maintained despite the summary disposal of the Special Leave Petitions by the Apex Court, the attainment of finality of the lis also being one of the important facets of justice delivery system, a party who had made a vain attempt by approaching the Apex Court by Special Leave and also made yet another unsuccessful attempt by filing the Review Applications which were dismissed, cannot be permitted to raise the same grounds in the present Review Applications on the ground of lack of jurisdiction of the Civil Court and non-applicability of the doctrine of res judicata, both in law and on the ground of equity too. It is definitely opposed to all canons of justice.”
As can be seen from the above, it is clear that the litigation was on the strength of the preliminary decree and the claim made by the Government that the subject land was its land which was turned down by this Court as well as by the Supreme Court in various proceedings. Thus, the order dated 31.01.1976 passed by the learned single Judge in Application No.139 of 1971 cannot be termed as a final decree as contemplated under the provisions of Rule 18(1) of Order XX read with Section 54 of the CPC and no such final decree has been passed by this Court directing the Collector for effecting partition under the said provisions of the CPC. It may be noticed that Application No.139 of 1971 was filed under the provisions of Rule 1 of Order XL of the CPC but not under the provisions of Rule 18 of Order XX of the CPC.
In support of his contention that the order dated 31.01.1976 in Application No.139 of 1971 was nothing but a decree, the learned senior counsel for the appellant society placed reliance on the Judgment of the learned single Judge of a Karnataka High Court in RAMAKRISHNACHARYA Vs. SREENIVASACHARYA {AIR 1989 Karnataka 30}. In the said Judgment, it was held thus:
“(3) A perusal of the order shows that the matter had come up before this Court earlier in R.F.A.93/71 and was dispose'd of by a remand by which Court below was directed to proceed in a particular manner. What was pressed before this Court earlier in R.F.A.93/71 was that the allocation of lands in the final decree proceedings, among the parties to the proceedings was such that some of them got larger extent of lands in the partition that were in the occupation of tenants than other sharers. In the result, this Court directed that having regard to the provisions of the Karnataka Land Reforms Act, people who are allotted lands in the occupation of tenants would be hard hit and therefore this Court set aside the final decree proceedings and remanded the matter directing the Court below to keep in mind the lands occupied by the tenants also to be apportioned, as far as possible, equally among all the sharers so that the loss of such lands as a result of the tenants being granted occupancy rights would be equally shared by all. As a result of that remand, the present order and final decree proceedings have been passed.
(4) We should have no hesitation to set aside the order made in final decree proceedings now under appeal, notwithstanding the earlier order made by this Court, on the short ground that suit 'B' schedule properties being lands assessed to land revenue could be divided only in accordance with Section 54 read with Order 20 Rule 18, C.P.C. and the appointment of a Commissioner becomes totally unnecessary because the mandate of the law must be given effect to. The mandate is that where the shares to be divided is assessed to land revenue, the same shall be done by the Deputy Commissioner or an officer authorised by him and not by the Court or by the Commissioner appointed by the Court. Unfortunately, this aspect was not brought to the notice of this Court in the first round litigation in this Court viz., R.F.A. No.93/71. Now, we have clarified the position.
(5) We set aside the order in the final decree proceedings under appeal and direct the Court below to comply with the requirement of Order 21 Rule 18 of the C.P.C. and forward the decree, as if it was a final decree for execution by the Deputy Commissioner of South Kanara District, in accordance with the provisions of C.P.C., to which we have to referred to earlier.
(6) However, we must further clarify first the preliminary decree which was the subject matter of R.F.A, 93/71 was set aside by this Court with a direction to which we have referred. But in that Judgment, this Court did not either specifically state the quantification of the mesne profits directed in the preliminary decree nor specifically set aside the same. The entire final decree order was set aside and the matter was remanded. Therefore, it is reasonable to presume having regard to the fact that all questions were left open to be agitated in the final decree proceedings, that the entire final, decree was set aside.
A careful perusal of the above Judgment clearly shows that the facts involved therein are totally different and it has no application to the present batch of appeals in the light of the fact that the appellant society was not a party to the suit and it cannot be said that the order passed in Application No.139 of 1971 is a decree relating to agricultural land alone which requires division by a Collector in accordance with the provisions of Section 54 read with Rule 18(1) of Order XX of the CPC.
Reference in this regard may be made to a Judgment of the Supreme Court in SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA Vs. SITA SARAN BUBNA {(2009) 9 SCC 689} wherein it was succinctly distinguished between decrees passed under the provisions of sub-rules (1) and (2) of Rule 18 of Order XX of the CPC. It reads as under:
“7. In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiff’s share in the suit properties, but also division of his share by metes and bounds. This involves three issues:
(i) whether the person seeking division has a share or interest in the suit property/properties;
(ii) whether he is entitled to the relief of division and separate possession; and
(iii) how and in what manner, the property/properties should be divided by metes and bounds?
In a suit for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as “decree” under Order 20 Rule 18(1) and termed as “preliminary decree” under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject-matter of the final decree under Rule 18(2).”
(Emphasis is mine)
The learned senior counsel representing the respondents sought to place reliance upon a Judgment of a Supreme Court in HASHAM ABBAS SAYYAD Vs. USMAN ABBAS SAYYAD {2007 (2) AD 59 (SC)}. While explaining the distinction between preliminary decree and final decree, the Supreme Court held thus:
“20. We have referred to the aforementioned decisions to clear the air in relation to one aspect of the matter, namely, although final decree may be required to be duly stamped, or the same may not have anything to do for the purpose of computing the period of limitation, the preliminary decree as such cannot be put to execution.
21. Although in regard to the period of limitation in execution of the final decree proceeding there are somewhat different views, but all decisions of this Court clearly state that it is the final decree proceeding which would be executable in nature. Without drawing a final decree proceeding, the court could not have put the property on auction sale.
22. It is true that the house property was found to be an impartible one; but a preliminary decree having been passed, the valuation thereof and final allotment of the property could have been done only in a final decree proceeding. Only when final allotments were made or a determination is made that the property should be put on auction sale, a final decree in respect thereof should have been passed. It is appealable. Only a final decree could be put to execution.”
In the light of the above, the order dated 31.01.1976 passed in Application No.139 of 1971 cannot be termed as a decree passed under Rule 18(1) of Order XX of the CPC, as has been rightly contended by the learned senior counsel for the respondents as well as the submissions made by the learned Receiver.
In the light of specific finding recorded hereinabove, that the order dated 31.01.1976 passed in Application No.139 of 1971 by a learned single of Judge of this Court is not a decree as envisaged under Rule 18(1) of Order XX of the CPC, it is now to be seen as to whether the learned single Judge who passed the subsequent orders dated 18.01.1981 and 10.08.1984 in the very same application, i.e., Application No.139 of 1971, has become functus officiofor passing such subsequent orders.
It is to be borne in mind that the order passed by the learned Single Judge in Application No.139 of 1971 dated 31.01.1976 is not a decree in a suit for partition of properties to allot separate share as contemplated under Rule 18(l) of Order XX read with Section 54 CPC and the learned Single Judge who passed the subsequent orders dated 18.01.1981 and 10.08.1984 in the self-same Application No.139 of 1971 would not become functus officio merely because under the scheme incorporated by the Receiver-cum-Commissioner the matter was forwarded to the District Collector under Section 54 CPC for the purpose of separation and allotment of shares to each of the parties.
Reference in this regard may be made to a Judgment of the Supreme Court in SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA Vs. SITA SARAN BUBNA {referred to supra} wherein it was inter alia held thus:
“17. Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may.
18. The following principles emerge from the above discussion regarding partition suits:
18.1. In regard to estates assessed to payment of revenue to the Government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of the Code. Such entrustment to the Collector under law was for two reasons. First is that the Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of the Government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible.) Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.
18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is, buildings, plots, etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an engineer, draughtsman, architect, or lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.
………
32. In view of the foregoing, we are of the view that the application filed by the plaintiff in this case for drawing up of a final decree, was rightly held to be not subject to any period of limitation. We therefore dismiss this special leave petition as having no merit, with a request to expedite the final decree proceedings.”
( Emphasis is mine)
Applying the above law laid down by the Supreme Court to the cases on hand, the applications filed by the respondents cannot be said to be barred by the limitation.
In as much as this Court earlier passed a preliminary decree on 28.06.1963, the subsequent orders dated 18.01.1981 and 10.08.1984 are only continuation of the preliminary decree in order to ensure proper division of properties to the respective parties. It may be mentioned here that once a court passes a preliminary decree, it is the duty of the Court to make certain that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division and that this duty, in the normal course, has to be performed by the Court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property.
It may be noticed that after passing a preliminary decree, Application No.139 of 1971 was filed by the Advocate-Commissioner under Order 40 Rule-1 CPC which deals with an appointment of Receiver of any property, whether before or after the decree, remove any person from the possession or custody of the property, commit the same to the possession, custody or management of the Receiver and for preservation of the property etc. In the instant case, even before the preliminary decree was passed, this Court appointed the Receiver to take possession of the properties and the Commissioner prepared a scheme for distribution of immovable property in Application No.73 of 1970 and the said scheme was accepted by this Court. Application No.139 of 1971 is part of the scheme so as to enable the Receiver-cum-Commissioner to forward the same to the District Collector or Gazetted Officer subordinate to the District Collector, as it was agricultural land, to effect partition on separation of the share. That is the reason why even after passing the orders dated 31.01.1976 subsequent orders were passed by the learned Single Judge on 18.01.1981 and 10.08.1984 in the very application. Therefore, it cannot be construed that a decree was forwarded for partition and separation to the District Collector under Section 54 read with Rule 18(1) of Order XX of the CPC but it was only an order under Rule 18(2) of Order XX of the CPC forwarding the same to the Collector for partition or separation of shares.
The learned Receiver drew the attention of this Court to the Judgment of the Calcutta High Court in ROY KIRAN CHANDRA ROY v. RAMA NATH DUTTA CHOWDHURY {(1931) 130 I.C. 285) wherein while dealing with the provisions of Section 54 of the CPC it was held thus:
“Section 54, merely deals with a case where there is a decree for partition of an undivided estate or for separate possession of a share of such an estate. A suit for partition of a particular mouza by a person who is a tenure-holder only in respect of a share in the land of that particular mouza does not fall within the purview of that section and can be entertained by the Civil Court.”
The learned Receiver also brought to the notice of this Court about the Judgment of the Madras High Court inK.V.SRINIVASATHATHACHAR Vs. NARAVALUR SRINI-VASATHATHACHAR {(1933) 141 I.C. 181}.Therein, the Madras High Court inter alia dealt with the provisions of Section 54 of the CPC and held thus:
“Section 54, Civil Procedure Code, applied only to a case where the decree comprehends the partition of the whole of the estate paying revenue to the Government. It does not apply to a decree which directs partition only of a portion of an estate. … For applying Section 54, it is not necessary that the decree should direct partition not only of land but also of the land revenue assessed on it.”
In that view of the matter, it cannot be said that this Court has become functus officio and could not have passed the orders dated 18.01.1981 and 10.08.1984 in Application No.139 of 1971 which are nothing but to ensure proper division of properties to the respective shareholders.
Regarding the contention of the learned Counsel for the appellant that fraud has been played before the learned Sigle Judge in obtaining the impugned order, it is to be seen, a careful reading of the memorandum of grounds urged in the batch of appeals discloses that no specific allegation is made as to the fraud said to have been played by the respondents in obtaining the impugned order before the learned single judge. However, at the time of hearing of the appeals, the learned senior counsel appearing for the appellant advanced arguments in respect of the fraud alleged to have been played by the respondents in securing the orders in their favour before the learned single judge. It is settled proposition of law that unless fraud is pleaded, proved and established thereof with specific instances, the same cannot be advanced in the arguments. Needless to state, unless there is a pleading as to any issue and proof thereof, it cannot be adjudicated upon. Notwithstanding the same, in view of the submission made by the learned senior counsel appearing for the appellant as regards the fraud said to have played it may be dealt with hereunder.
Dealing with the contentions raised as to fraud played by the respondents in obtaining the impugned orders before the learned single Judge, it is apposite to notice the well settled principle of law that fraud vitiates all solemn acts. Fraudulent actions shall render the act a nullity. It would be non est in the eye of the law. Further, ‘fraud’ denotes false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor. It has been defined statutorily in Section 17 of the Contract Act as including certain acts committed with connivance or with intent to deceive another. In Administrative Law it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus understood as deliberate act or omission to mislead the other to gain undue advantage. It consists of some deceitful practice or wilful device resorted to with intent to deprive another of his right or in some manner to do him an injury. Effect of fraud on any proceeding, or transaction is that it becomes nullity. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Such being the nature and consequence of it, the law requires not only strict pleading of it but strict proof as well.
Keeping the above settled principle of law in mind as to fraud, it shall now be examined as to whether the respondents had played fraud, as alleged by the appellant society, in seeking an identical relief in O.S.A.Nos.58 of 2002 and batch.
It is the contention of the appellant society that respondents played fraud in obtaining the impugned orders and therefore this batch of appeals are maintainable and the impugned orders are liable to be set aside by remanding the same to the learned Single Judge, as held by a learned Division Bench of this Court in O.S.A.No.58 of 2002 and batch by its Judgment dated 10.06.2003. In the said case, the fraud played by the parties therein was pleaded and established. In this batch of appeals, the contention of the appellant society is that the respondents have obtained the impugned orders by playing fraud and mischief and the assignment deeds were fabricated and in view of the contentions that assignees had fabricated the assignment deeds and approached the Court by playing fraud in as much as most of the parties were staying in abroad and therefore the question of executing assignment deeds in favour of the assignees did not arise. However, the fraud alleged to have been played by the respondents could not be established and proved by the appellant society clinchingly. On the other hand, the learned senior counsel for the respondents submitted that in the applications filed by the appellant society before the learned Single Judge for impleading them and to review the impugned orders, their vendors have filed counters disputing the execution of the sale deeds stating that they never executed the so-called sale deeds and had not delivered possession. Therefore, in the aforesaid facts and circumstances of the case, without impleading the appellant society as a party to any of the proceedings in the suit and without availing such remedy available to it to get impleaded and to review the impugned orders, it cannot be permitted to contend that the respondents played fraud and obtained impugned orders.
The learned senior counsel appearing for the appellant society placed reliance on S.P.CHENGAL VARAYA NAIDU Vs. JAGANNATH {(1994) 1 SCC 1} in support of his contention as to the fraud played by the respondents in obtaining the impugned orders. In the said Judgment, it was held a litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
While dealing with the effect of fraud, the Supreme Court in STATE OF MAHARASHTRA
“6. We must confess our inability to appreciate the worth of such averments to establish fraud. Legal submissions cannot be equated to misrepresentation. In our opinion the pleadings fell short of legal requirements to establish fraud. Various sentences extracted from different judgments between the accused and State in various proceedings could not give rise to an inference either in law or fact that the State was guilty of fraud. ………”
(Emphasis is mine)
On the other hand, the learned senior counsel representing the respondents seeks to place reliance on the Judgment of the Supreme Court INDIAN BANK Vs. M/S.SATYAM FIBRES (INDIA
“42. We must say immediately that the circumstances, in the instant case, are glaring and the intrinsic evidence available on the record is clinching, so much so, that no other inference is possible except to hold that letter No. 2776 of 26-8-1991 was forged by the respondent in order to obtain a decree from the Commission for a huge amount of French Francs 4,10,000.
43. In view of the above, and if letter No. 2776 (forged by the respondent) is excluded from the evidence, there remains only letter No. 2775 of 26-8-1991 in which it was not indicated by the respondent to the appellant to write to the French bank to deliver the documents only on co-acceptance by it. The appellant, in the circumstances, was justified in not mentioning co-acceptance by the French bank. The case of the respondent being false and based on fabricated evidence has to be dismissed.”
Keeping the above law laid down by the Supreme Court in mind and considering the facts and circumstances of the cases on hand, I find that the appellant society utterly failed to establish and prove that the respondents played fraud in obtaining the impugned orders from this Court.
Further, the contention of the appellant society is that the impugned orders are bereft of any reasons and therefore the same cannot be termed as an order or judgment as defined under Section 2(9) of the CPC. In support of its contention, reliance was placed on a Judgment of the Supreme Court in BALRAJ TANEJA Vs. SUNIL MADAN {(1999) 8 SCC 396} wherein it was held thus:
“42. “Judgment” as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment
“shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision”.
It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.”
Reliance is also placed on the Judgment of the Supreme Court in SMT.SWARAN LATA GHOSH Vs. HARENDRA KUMAR BANERJEE {AIR 1969 SC 1167}. Therein, while dealing with a contested suit, it was held thus:
5. The defendants had filed a written statement denying the averments in the plaint and had contested the claim of the plaintiff. The learned Judge apparently raised no issues. We have found in the printed paper-book no record of any issues raised. On behalf of the plaintiff, witnesses were examined to prove the two deposits and the terms of the deposit which it was claimed were orally agreed upon. There was no documentary evidence supporting the case of the plaintiff relating to the agreements between him and Ghosh. There was also no documentary evidence supporting the case of payment of interest on the amounts deposited, or of re-payment of a part of the principal. Indisputably the pleadings of the parties raised substantial issues of fact for trial, and a lengthy trial was held. But the learned trial Judge delivered no judgment. He merely decreed the claim. The decree was on the face of it erroneous, because it directed Swaran Lata and her minor son Arun Kumar personally to pay the amount decreed.
6. Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint.
………
10. It is true that Rules 1 to 8 of Order 20 of the Code of Civil Procedure are, by the express provision contained in Order 49 Rule 3, clause (5) inapplicable to a Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. A Judge of a Chatered High Court is not obliged to record a judgment strictly according to the provisions contained in Rules 4(2) and 5 of Order 20 of the Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter, in a summary trial of an action where leave to defend is not granted, in making interlocutory orders or in disposing of formal proceedings and the like. Order 49 Rule 3 of the Code of Civil Procedure undoubtedly applies to the trial of suits; but the question is not one merely of power but of exercise of judicial discretion in the exercise of that power. The function of a judicial trial is to hear and decide a matter in contest between the parties in open court in the presence of parties according to the procedure prescribed for investigation of the dispute, and the rules of evidence. The conclusion of the court ought normally to be supported by reasons duly recorded. This requirement transcends all technical rules of procedure.”
The appellant society also relied upon the Judgment of a Full Bench of this Court in AZIZ AHMED KHAN Vs. I.A.PATEL {AIR 1974 AP 1}. The learned Full Bench of this Court, speaking through the Hon’ble The Chief Justice N.Kumarayya (as His Lordship then was), inter alia while dealing with duty of Court in pronouncement of Judgments, succinctly held thus:
“8. The irregularities committed by the trial court do not stop at that. The judgment that it has given does not conform to the provisions of Rule 4(2) of Order XX, C.P.C. at all. Whereas a judgment shall contain a concise statement of the case, the points for determination, and the decision thereon, we search in vain for any of these essentials in the impugned judgment. It is no judgment at all. The provisions of Rule 4(2) have a set purpose. The form is designed to ensure that while pronouncing the orders or judgments. They should apply their minds to the facts of the case and the points at issue and give a reasoned judgment thereon so that not only their own conscience may be satisfied but also the litigants should have satisfaction that all their evidence has been evaluated and their contentions and arguments duly considered. This is of vital importance inasmuch as the whole edifice of confidence of the litigants in Courts is built upon the quality of judgments. The Courts, therefore, have to necessarily take care that their judgments conform to the provisions of law and are products of sound reasoning. In the instant case the judgment of the trial Court which we have extracted above is no judgment at all. The appeal must be allowed on that basis also.”
There is no iota of doubt in the mind of this Court as to the above settled proposition of law. It is no doubt true that reasons introduce clarity in an order and reason is the heartbeat of every conclusion and without the same it becomes lifeless. However, apropos to the contention that the impugned orders are bereft of reasons, it may be borne in mind that the same were passed in the applications filed by the respondlents herein when the opposite party in those application had raised no objection to allow such applications, the impugned orders came to be passed. This fact shall not be lost sight of on the premise that the impugned orders are bereft of reasons and that the reason is the heartbeat of every conclusion. Further, it may be noticed here that such a contention was not put forth by the party who raised no objection before the learned single Judge who passed the impugned orders on the basis of such submission made before him. On the contrary, the said contention is now being put forth by the appellant society, which is not a party to the suit and is only a third party, on the premise that the impugned orders caused prejudice to it. If it is really aggrieved by such orders, it could have moved an impleadment application in the main suit or in any such applications, to question the same. Instead, for the reasons best known to it which are unexplained before this Court, it had avoided in doing so and rather preferred this batch of appeals as a third party pretty well knowing the maintainability of those appeals is highly questionable. In a case of this nature, where the opposite party raised no objection for allowing interlocutory applications filed in the main suit, it is not expected of from the Court to record reasons for allowing such interlocutory applications which are nothing but consent orders. Perhaps such a contention of the appellant society perhaps would not fall to ground if raised when the main suit itself is disposed of on the basis of the no objection put forth by the `opposite party. The present cases do not come under that category.
Further, when the applications came to be filed before the learned single Judge on which the impugned orders were passed, the respondents before the learned single Judge did not raise any objection as to the allowing of such applications, it is but usual that there was no occasion for the Court to record detailed reasons, more particularly when passing of an order in a miscellaneous application filed in the main suit. It is therefore the contention of the learned senior counsel appearing for the respondents that as there was no objection from the other side, detailed reasons were not required to be recorded by the learned single Judge while passing the impugned orders more particularly in interlocutory applications and on that count, the impugned orders cannot be said to be illegal or invalid. Considering the peculiar facts and circumstances of these cases, I find some force in the argument advanced by the learned senior counsel for the respondent in this regard.
There is no pleading in the memorandum of grounds of appeals to the effect that the affidavits appended to the applications filed before the learned single Judge were not verified as contemplated under Order VI Rule 15 CPC. There is no such pleading and in the absence of pleading and proof thereof, it cannot be adjudicated upon such issue on the basis of mere arguments advanced during the course of hearing the appeals. Had this alleged defect been raised at the relevant point of time by the respondents in those applications before the learned single Judge, it could have been certainly cured by the concerned parties, as such a defect is curable. Furthermore the parties to the impugned applications before the learned single judge had consented to the details of the affidavit and such a consent cannot be objected now on the ground that due verification had not been done as required under the relevant provisions of the CPC. On the other hand, this alleged defect is pointed out by the appellant society which is not a party to the suit. Needless to state, in the present case as pointed out earlier there are no pleadings in the grounds of LPAs to the effect the affidavits had not been verified in accordance with law. In addition thereto, it is to be seen that the verification of the affidavit in the interlocutory application in a suit, there is no legal requirement that every affidavit requires the verification except the plaint or written statement. It is not a company case or Contempt Case requiring verification. Notwithstanding the same, in view of the submission made by the learned senior counsel appearing for the appellant society as regards the defect in affidavits said to have played it is dealt with hereinunder.
It may be noted that the contention of the appellant society is that the affidavits appended to the applications filed by the respondents before the learned single Judge was not duly verified as is required under the provisions of Rule 15 of Order VI of the CPC and therefore such affidavits were defective in the eye of law and they had no evidentiary value. It is thus the contention of the learned senior counsel for the appellant society that on this short ground also, the impugned orders are liable to be set aside and thereby the appeals must succeed.
On the other hand, it is the case of the respondents that the verification of the affidavits appended to interlocutory applications filed in a suit, there is no legal requirement that every such affidavit requires the verification unlike in the case of plaint or written statement. It is their case that such affidavits cannot be equated to that of the affidavits filed either in the contempt case or in the company cases where such verification is necessary. It is therefore their contention that the provisions of Rule 15 of Order VI of the CPC are not violated by them.
In support of his contention, the learned senior counsel for the appellant society seeks to place reliance on the Judgment of the Supreme Court in A.K.K.NAMBIAR Vs. UNION OF INDIA, {AIR 1970 SC 652} wherein it was held that the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties and the allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records, the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, it is contended that the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence.
In this regard, he further seeks to place reliance on the Judgment of the Supreme Court in STATE OF BOMBAY Vs. PURUSHOTTAM JOG NAIK {AIR 1952 SC 317} wherein IT was inter alia held that verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. Again reliance was also sought to be placed on the decision of the Supreme Court inSAVITHRAMMA Vs. CECIL NORONHA {1988 SUPP SCC 655}.
This Court is conscious of the settled position of law that verification to the affidavits appended to the petitions are very significant considering the provisions of Rule 15 of Order VI of the CPC. The affidavits of the respondents herein (in this batch of appeals) were annexed to the interlocutory applications filed by them before the learned single Judge. The respondents in the said applications did not raise any objection as to the alleged defect in the affidavits and on the other hand, they reported no objection for allowing the said applications. In that backdrop of the matter, the impugned orders came to be filed. This fact shall not be lost sight of when considering the contention of the appellant society that the affidavits are defective and therefore, the impugned orders are to be set aside. Keeping in mind the unique facts and circumstances of the cases, this Court is of the considered view that the absence of verification of the affidavits appended to the interlocutory applications filed in the suit is not fatal to the case of the respondents. Had this alleged defect been raised at the relevant point of time by the respondents in those applications before the learned single Judge, it could have been certainly cured by the concerned as such a defect is curable and the same could have been adverted by the Court below. On the other hand, this alleged defect is pointed out by the appellant society which is not a party to the suit in these appeals only with a view to see that the impugned orders are set aside despite the fact that the maintainability of these appeals are in question.
Furthermore needless to state, pleadings make only allegations or averments of facts. Mere pleadings do not make a strong case of the person who pleads so. The material and evidence has to show it. Reference in this regard may be made to the Judgment of Supreme Court in ANIL RISHI Vs. GURBAKSH SINGH, {(2006) 5 SCC 558},. Therein, the Supreme Court held thus:
“9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”
(Emphasis is mine)
In the present batch of appeals, the appellant society raised several pleadings on the basis of which it contended that the impugned orders passed by the learned single Judge are liable to be set aside. In view of the above law laid down by the Supreme Court, pleadings remain as pleadings until and unless they are established and proved by leading cogent and convenincing evidence, both documentary and oral. Thus, on this ground also, the present batch of appeals are not maintainable.
Having regard to the facts and circumstances of the case, the precedential law cited by the learned senior counsel for the appellant society has no bearing on the present batch of appeals.
Furthermore, it is the case of the appellant society that in as much as the respondents in support of their applications filed unregistered deeds of assignment for effecting transfer of rights and interests of the subject lands in their favour by the decree holders, such unregistered assignment deeds are required to be registered under Section 17(1)(e) of the Registration Act, 1908. It is the specific contention of the appellant society that in the absence of registration, the unregistered assignment deeds cannot be admitted into evidence in support of the respondents’ case and therefore the same could have been be eschewed from consideration. It is thus the submission of the appellant society that the impugned orders are liable to be set aside on this ground also.
In support of the above contentions, the appellant society sought to place reliance on the Judgment of the Supreme Court in SURJIT SINGH Vs. HARBANS SINGH {(1995) 6 SCC 50}. Therein, the Supreme Court held thus:
“4. As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/ assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 CPC.”
In this regard, reliance is also placed on the Judgment of this Court in DURGA MATHA BUILDING CONSTRUCTIONS CO-OP. HOUSING SOCIETY LTD. Vs. SADA YELLAIAH {AIR 2010 AP 231}. A Division Bench of this Court in the said case inter alia held thus:
“19. It is well settled principle of law that notwithstanding passing of preliminary decree in a suit for partition, the suit is supposed to be pending till a final decree is passed allotting specific item of the property to the parties to the suit inasmuch as even during the stage of passing final decree parties and properties can be added. The parties to the suit will not accrue any rights over specific items of property until allotment is made and the principle that each shareholder will have right over every inch of property will contine till the passing of a final decree. Inasmuch as no final decree is admittedly passed in C. S. No. 14 of 1958, the assignors under Exs. A-2 and A-48 did not have rights over the property covered by the said assignment deeds so as to transfer their rights in the said property.
20. Apart from it, is seen from the record that the tenants, namely, the predecessors of the contesting defendants, filed O. S. No. 79 of 1987 on the file of I Addl. Subordinate Judge, Ranga Reddy District against Mr. Jung, one of the decedents of the plaintiff in C. S.No. 14 of 1958 claiming partition. The said suit ended in compromise and the tenants were allotted Ac. 39-23 gts., in the suit survey number herein. The said facts were suppressed in the assignment deeds and in the plaints in this case and there is no explanation. When the assignors have no marketable title in the lands covered by Ex. A.2 and A-48, they cannot convey any thing better than they have in favour of the assignees. The agreement between Cyrus and Dr. Vinay Kumar and M/s. Shalivahana Builders where-under Cyrus is said to have conveyed the title is neither filed in the trial Court nor in the High Court in the collateral proceedings in C. S.No. 14/1958. Therefore, it is held that the assignors suffer from lack of title to execute Exs A.2 and A. 48. The agreement between assignors No.1 to 3 and M/s. Shalivahana Builders was also not filed in this case. Thus it is to be held that the plaintiffs have suppressed the material documents referred to above and, therefore, they are guilty of suppression of material facts and nothing is forthcoming from their side to justify the omission.
21. As regards the other two assignment deeds, Exs. A.32 and A-49, both dt. 22-5-1989 for Ac. 15-00 gts. and Ac. 16-00 gts. respectively executed in favour of the plaintiffs. The assignors are Mr. Jung represented by Jithender Kumar, Bandari Dasharath, the alleged GPA of ancestors of D-4, M/s. Shalivahana Builders Pvt. Ltd., and the assignee is Durga Matha Sciety under Ex. A-32 and I. D. P. L. Employees Assocaiation is the assignee under Ex. A-49. It is mentioned in both these assignment deeds that 23 tenants mentioned in Exs. A.30, and GPA have forcibly occupied Ac. 31-00gts., without any title, that M/s.Shalivahana Builders entered into agreement with the above tenants through their GPA Dasharath for purchasing the total extent of suit survey number and joined execution of the assignment deeds for effective transfer of the land covered by them. It was further stated that M/s. Shalivahana Builders requested Mr. Jung to leave Ac. 31- 00 gts. occupied by the tenants for which he had agreed. By the time of the above two assignments deeds, the litigation in O. S. No. 79 of 1987 referred to above was launched and an extent of Ac. 39-23 gts. was allotted to the tenants, namely, the ancestors of the contesting defendants, but its reference was not make in the assignment deeds inasmuch as it is suppressed even though the first two assignors had full knowledge about the same. The Judgment in O. S. No. 79 of 1987 is dated 8-6-1987 marked as Exs. B-25 and in spite of two years being elapsed therefrom, its reference is not made in Exs. A. 32 and A-49 and it, again, remained unexplained.
22. For the aforesaid reasons, the assignment deeds are not valid for want of title in the assignors. Therefore, we hold under this point that the assignors who executed Exs. A.2, A-32 and A-49 have no right to execute the same and, therefore, they are invalid.
23. Under Point No.1 we held that the assignment deeds are not valid for want of title in assignors. Nonetheless, we shall examine as to whether such deeds create any rights in the assignees, namely, the plaintiffs. The assignment deeds are admittedly unregistered. It is to be seen firstly as to whether they are admissible in evidence. The contention of the plaintiffs before the trial Judge and during the hearing of the appeal is that what was transferred was only right in preliminary decree and not interest in the particular item of the property. A perusal of the assignment deeds show that specific extents were assigned with boundaries. Nowhere in the assignment deeds, it is stated that the rights in the preliminary decree alone were transferred. On the other hand, the terms of the document clearly indicated that full rights in the immovable property mentioned therein was transferred.”
It may be noticed that the appeals in the above cited were preferred by the plaintiffs in the suits which were dismissed by the trial Court. The learned Division Bench passed the said orders after hearing both the sides.
As against the said arguments of the appellant society, the learned senior counsel representing the respondents submitted that applications filed by the respondents in these batch appeals before the learned single Judge to recognize the assignment of rights accrued under the unregistered assignment deeds executed by the legal representatives of respective defendants transferring their rights, interest in the subject lands; to direct delivery of property by issuing a warrant to the Court Bailiff; to implead them; to mutate their names; were not opposed by all the legal heirs of the respective deceased defendants; and that there was thus no error committed by the learned Single Judge in allowing these applications; and that the impugned orders were passed taking into consideration of all the material placed on record in the proper perspective which do not warrant interference by this Court, more particularly at the instance of a party who was not party to the suit proceedings.
The learned senior counsel for the respondents seeks to place reliance on the Judgment of the Supreme Court in DHANI RAM GUPTA Vs. LALA SRI RAM {AIR 1980 SC 157}. Therein, dealing with assignment of decree a three Judge Bench speaking through Hon’ble Sri Justice O.Chinnappa Reddy (as His Lordship then was) held thus:
“4. We are unable to read Order 21, Rule 16 as furnishing any foundation for the basic assumption of the learned Counsel for the respondent that property in a decree does not pass to the transferee under the assignment until the transfer is recognised by the court. Property in a decree must pass to the transferee under a deed of assignment when the parties to the deed of assignment intend such property to pass. It does not depend on the court’s recognition of the transfer. Order 21 Rule 16 neither expressly nor by implication provides that assignment of a decree does not take effect until recognised by the court. It is true that while Order 21 Rule 16 enables a transferee to apply for execution of the decree, the first proviso to Order 21 Rule 16 enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the court has heard their objections, if any, to its execution. It is one thing to say that the decree may not be executed by the transferee until the objections of the transferor and the judgment-debtor are heard, it is an altogether different thing to say that the assignment is of no consequence until the objections are heard and decided. The transfer as between the original decree-holder and the transferee is effected by the deed of assignment. If the judgment-debtor has notice of the transfer, he cannot be permitted to defeat the rights of the transferee by entering into an adjustment with the transferor. If the judgment-debtor has no notice of the transfer and enters into an adjustment with the transferor before the transferee serves him with notice under Order 21 Rule 16 the judgment-debtor is protected. This in our view is no more than plain good sense. In Dwar Buksh Sirkar v. Fatik Jali {ILR 26 CAL. 250, 253 254} the decree-holder represented to the Court that the judgment-debtor had satisfied the decree by payment and wanted his execution application to be disposed of accordingly. Before satisfaction could be recorded a transferee of the decree from the original decree-holder intervened and claimed that satisfaction could not be recorded as there was a valid transfer of the decree in his favour prior to the alleged payment by the judgment-debtor to the original decree holder. The argument before the High Court was that the assignee could not prevent the recording of the satisfaction of the decree as he had not filed an execution application and got the assignment in his favour recognised. The High Court of Calcutta observed:
“The only provision in the Code referring expressly to the assignment of a decree is contained in Section 232, and that no doubt contemplates a case in which the assignee applies for execution. In such a case the court may, if it thinks fit, after notice to the decree-holder and the judgment-debtor, allow the decree to be executed by the assignee. If, however, there is an assignment pending proceedings in execution taken by the decree-holder, I see nothing in the Code which debars the Code from recognising the transferee as the person to go on with the execution. The recognition of the court is no doubt necessary before he can execute the decree, but it is the written assignment and not the recognition which makes him the transferee in law. The omission of the transferee, if it was an omission, to make a formal application for execution, was merely an error of procedure and does not affect the merits of the case.... It is argued for the respondent that the transferee’s title was not complete as express notice of the transfer had not been given to the judgment-debtor. As already observed, the transfer, as between transferor and the transferee, is effected by the written assignment. If the judgment-debtor had no notice of the transfer and being otherwise unaware of it paid the money to the decree-holder, the payment was, of course, a good payment, and he cannot again be held liable to the transferee.”
We express our agreement with the observations made by the Calcutta High Court.”
Notably, the respondents in the applications filed before the learned single Judge had reported no objection for allowing the same. Therefore, the impugned orders came to be passed by the learned single Judge. Presently, the appellant society seeks to question all these aspects in the present batch of appeals. It is to be noticed that the present batch of appeals preferred by the appellant society are not maintainable for the findings recorded hereinabove. That being so, the appellant society has no locus standi to raise all these issues. Furthermore, as the appellant society had also instituted a suit in O.S.No.359 of 2011 before the learned Principal Senior Civil Judge, Ranga Reddy District, for declaration and injunction in respect of the subject land, it is for the appellant society to raise all the relevant issues in the suit. Instead of doing so, the appellant society preferred the present batch of appeals which are not maintainable. The appellant society also initiated parallel proceedings before the Special Court
Having regard to the facts and circumstances of the case and considering the precendetial law laid down by the Supreme Court, I am of the view that there is some force in the contention of the learned counsel for the respondents that the unregistered assignments whereby the respondents seek right and title of the subject land can be acted upon.
A careful perusal of the Judgment rendered by my learned brother Sri Justice B.Chandra Kumar inter aliademonstrates that the land grabbers have mislead the Court in the process of accumulating ill-gotten money and some of them found it a convenient gold mine for years together and therefore the impugned orders passed by the learned single Judge were to be set aside; and that the Receiver-cum-Commissioner had never been in actual and effective possession of the property and his possession, if any, is to be treated as nominal paper possession; and that since no descriptive particulars of the properties such as survey numbers, boundaries, as required under Order XX, Rules 9 and 10 CPC have been given in the decress, such decree is in-executable; and that unregistered assignment deed cannot convey any title though it may be used only for collateral purpose; and that the Civil Court will not interfere with the partitions to be made or made by the Collector, except to the extent of any complaint of a third party affected thereby and the Court would become functus officio; and that the impugned orders are bereft of reasons and therefore they were liable to be set aside; and that ultimately the appeals are allowed setting aside the impugned orders.
I have carefully considered the contentions of the learned senior counsel on either side. I have also gone through the differing judgments rendered by the learned Judges. In my considered opinion, the appellants being a third party and not a party to the suit, who have approached, this Court only on the strength of certified copies of the registered sale deeds of the years 1981 and 1982, have failed to make out any grievance about the impugned orders. It is seen from the record that by the time these sale deeds were executed by the appellants, the learned Advocate Receiver of the Court had not even submitted the scheme of partition. Thus, by the time of the sale deeds in favour of the appellant (even if they are true and genuine), no allotment of land by metes and bounds was made in favour of defendant Nos. 17 & 39 or his legal representatives. The report of the learned Advocate Receiver itself is dated 13.07.1984 and possession was directed to be given to the parties in Appln.No.139 of 1971 by order dated 10.08.1984. Therefore, it is surprising to see as to how the sale deeds in favour of the appellant society could have been executed since there was no identifiable portion of land in favour of any of the sharers in the suit. Be that as it may, the appellant society has stated that it is in possession of the land and that the respondents are interfering with its possession.
That being so, the remedy for the appellant society is not filing of this batch appeal but it can initiate necessary proceedings in accordance with law in this regard. Therefore, a finding has been recorded hereinabove. that the present appeals under clause 15 of the Letters Patent are not maintainable in law before this Court at this stage. As regards the contention about the applicability of Section 54 of the Code, in view of the findings recorded on Point Nos.2 and 3, the same is incorrect and as the preliminary decree did not transmit the partition to the Collector, the preliminary decree dated 28.06.1963 is one passed under Order XX, Rule 18(2) of the CPC. Further the preliminary decree shows the court has appointed an advocate receiver to complete the parceling out of land for allotment to the sharers in the preliminary decree. Therefore, the impugned orders cannot be held to be suffering from any jurisdictional infirmity. In view my findings recorded above and having gone through the case law cited by the learned senior counsels on either side, that the applications filed by the respondents/assignees are not barred by law of limitation.
In view of my finding recorded above, the effect of unregistered assignment deeds is concerned, no doubt the title cannot be passed on through the unregistered deeds of assignment, but in the present case the assignors are not contending that those deeds are invalid, but third party is no way concerned with the said deeds and therefore I hold that the appellant society has no locus standi to advance such a contention since it is an internal matter between the assignors and the assignees. In the light of the specific findings recorded as indicated herein above, I hold that the impugned orders do not affect the appellant society and therefore it has not suffered an valid legal injury to prefer this batch of appeals. On the contention relating to the release of Item No.37 and 40 of Schedule IV, I hold that the lands in these items are available for partition, since after passing of preliminary decree, the State had agreed to deliver symbolic possession, which, in fact, tantamount to releasing items 37 & 40 and making them available for partition. It may also be noted that the Government never in their pleadings stated that symbolic delivery does not amount to release but only tried to seek amendment of decree by way of deleting these items. The said orders attained finality, as there was no appeal by the Government and as the State had failed in getting these items deleted from the preliminary decree as Application No.44 of 1982 filed by the state had failed upto Supreme Court and the orders that were passed in Application No.19 and 114 of 1973 became final, as there was no appeal by the State..
In view of the various orders granted passed by this Court, which were also duly confirmed by the Supreme Court and in the light of the specific findings recorded on the above points, the principles of res judicata, constructive resjudicata and doctrine of estoppel by judgment and cause of action estoppel would operate against advancement of the contention that Item No.37 and 40 of Schedule IV are not partitionable. Therefore, this Court agrees with the contentions of the learned Receiver-cum-Commissioner and I hold that the lands were released by the Jagir Administrator as per the finding in the preliminary decree itself and after Inam enquiry the State Government had declared that these two villages as Inam Altamaga do not attract the provisions of Inam Abolition Act. It is evident that nearly about five decades are elapsed in this litigation, which might have given raised to development of interests to various third parties over the suit schedule properties. It is, for these reasons, not desirable to disturb the settled issues in the larger interest of parties to the main suit. Having due regard to the findings recorded by me hereinabove and keeping in mind the facts and circumstances of the cases on hand, it cannot be said tht the decree holders have no right over the property. The ultimate finding that can be recorded is that the respondents herein are entitled to the subject land as has been ordered by the learned single Judge by way of the orders under appeal.
In the light of my findings recorded on the above points framed for adjudication of this batch of appeals and having due regard to the unique facts and circumstances of these cases discussed hereinabove and for the reasons stated herein above, I do not find any merit in this batch of appeals. As a corollary thereto, I respectfully concur with the view expressed by my learned brother Sri Justice V.Eswaraiah while I am unable to agree with the findings and conclusions reached by my learned brother Sri Justice B.Chandra Kumar.
In the result, all these appeals must fail and are accordingly dismissed. In the facts and circumstances, the parties are directed bear their own costs.
