M/s Trinity Infraventures Ltd. & Ors. etc. vs M. S. Murthy & Ors. etc.

Suit – Decree – Preliminary decree – ‘Paigah’ Estate – Mathruka property – Whether on facts, the concurrent findings of the Single Judge and the Division Bench of the High Court that Khurshid Jah a ‘Paigah’ grantee, did not leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree that has attained finality – Whether the finding recorded in the judgment and preliminary decree that the lands in question are Mathruka property was binding upon third parties – Held: No finding was ever recorded by the Trial Judge in his judgment dated 28.06.1963 that the properties left behind by Khurshid Jah were Mathruka properties – Therefore, the contention as though there was such a finding and that the finding has attained finality and that the impugned Judgment goes contrary to such a finding, is wholly misconceived – The Single Judge as well as the Division Bench (in the impugned judgment) were right in holding that the properties were not established to be Mathruka properties – The effect of the order of the Nazim Atiyat was not examined by the Trial Judge – In any case, such an examination had to be done independently and not in a partition suit, keeping in view, the 1955 Act and various subsequent enactments relating to agricultural land reforms and urban land ceiling – When the entire claim of the appellants that the properties were Mathruka properties inheritable by the legal heirs had failed, the question of executing a decree on the strength of the plea that the property is a Mathruka property does not arise – The predecessors of the appellants have had knowledge that faisal patti were recorded in the name of the claim petitioners in 1978 itself – Even the Receiver was aware of this, as seen from the letter written by the Receiver on 09.04.1980 to the Collector – It is too late in the day for the appellants to question as to how the claim of the claim petitioners stood established. Code of Civil Procedure, 1908 – Order XXI, rr.97- 101 – Enquiry under – Scope of – Held: In an enquiry under Order XXI, rr. 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves – All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists /claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit – If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

Suit – Partition suit – Preliminary decree – Effect of – Held: A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition – On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties – Since there are three stages in a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing of a final decree in terms of Order XXVI Rule 14(3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit – Code of Civil Procedure, 1908 – Order XX, r.18(2); Order XXVI, r.14(3) and Order XXI, r.35.

Suit – Partition suit – Held: In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.

Disposing of the appeals, the Court

HELD: 1. The way in which the suit claim has been valued and court-fee paid, demonstrates very clearly that it was not a suit for declaration of title to any property. It was only a suit for partition. All the suit schedule properties have been valued at a particular rate and court- fee was paid on the value of the share, of which the plaintiff was seeking partition. If it was a suit containing a prayer for declaration of title, the court-fee was liable to be paid on the whole value of the property and not on the share sought to be partitioned. Therefore, the preliminary decree dated 28.06.1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties. Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties. [Paras 119 & 120][341-E-H]

2. Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. Also, in an enquiry under Order XXI, Rules

97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC. [Para 126][344-E-H; 345-A]

3. The judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. In an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings. [Para 139][348-D-G]

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

5. When the entire claim of the appellants that the properties were Mathruka properties inheritable by the legal heirs had failed, the question of executing a decree on the strength of the plea that the property is a Mathruka property does not arise. [Para 166][356-F-G]

NSS Naryana Sarma v. M/s Goldstone Exports Private Ltd. (2002) 1 SCC 662 : [2001] 5 Suppl. SCR 327; Venkata Reddy v. Pethi Reddy AIR 1963 SC 992 : [1963]

2 Suppl. SCR 616; Raja Ram Chandra Reddy v. Rani Shankaramma AIR 1956 SC 319; Sikander Jehan

Begum v. Andhra Pradesh State Government AIR 1962 SC 996 : [1962] 2 Suppl. SCR 226; State of Andhra Pradesh (Now State of Telangana) v. A.P. State Wakf Board 2022 SCC OnLine SC 159; Mohd. Habbibuddin Khan v. Jagir Administrator, Government of Andhra Pradesh (1974) 1 SCC 82; Rangammal v. Kuppuswami (2011) 12 SCC 220 : [2011] 6 SCR 835; National

Textile Corporation (Maharashtra South) Ltd. v. Standard Chartered Bank (2000) 10 SCC 592 and

Lachhman Dass v. Jagat Ram and Others (2007) 10 SCC 448 : [2007] 2 SCR 980 – referred to.