IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF
* HON’BLE SRI JUSTICE V.RAMASUBRAMANIAN
HON’BLE SRI JUSTICE N. BALAYOGI
+ Contempt Appeal No.33 of 2017
Letters Patent Appeal No.1 of 2018
Contempt Appeal No.33 of 2017
S. Tirupathi Rao, Tahsildar, Serilingampally Mandal, Ranga Reddy District …Appellant
M. Lingamaiah, S/o M. Pullaiah, aged about 77 years, Occ: Business, R/o H.No.16-2-805, Shankeswara Bazar, Saidabad, Hyderabad and 6 others …Respondents
L.P.A.No.1 of 2018
S. Tirupathi Rao, Tahsildar, Serilingampally Mandal, Ranga Reddy District …Appellant
M. Lingamaiah, S/o M. Pullaiah, aged about 77 years, Occ: Business, R/o H.No.16-2-805, Shankeswara Bazar, Saidabad, Hyderabad and 6 others …Respondents
! Counsel for the Appellant : Mr. Sharat Kumar, Spl. Govt.
^ Counsel for Respondents : Mr. Vedula Venkata Ramana,
< Gist: > Head Note:
? Cases referred:
1. AIR 1959 SC 798
2. (2008) 8 SCC 648
3. AIR 1986 SC 293
4. (1804) 1 Ch. 298
5. AIR 1937 Bom 1 (FB)
HON’BLE SRI JUSTICE V.RAMASUBRAMANIAN
HON’BLE SRI JUSTICE N. BALAYOGI
Contempt Appeal No.33 of 2017
Letters Patent Appeal No.1 of 2018
COMMON JUDGMENT: (per V. Ramasubramanaian, J)
As against an order passed by the learned Judge in a Contempt Case under Sections 10 to 12 of the Contempt of Courts Act, 1971, (i) punishing the Tahsildar, Serilingampalli Mandal, Ranga Reddy District, and (ii) also further directing him to effect mutation of the name of the 1st respondent herein in the revenue records, in terms of a final decree dated 26-12-2003 passed in Application No.1409 of 2003 in C.S.No.7 of 1958, the Tahsildar has come up with the above Contempt Appeal as well as Letters Patent Appeal, challenging in the contempt appeal, the punishment imposed upon him and challenging in the letters patent appeal, the further directions issued.
2. Heard Mr. Sharat Kumar, learned Special Government Pleader attached to the office of the learned Additional Advocate General for the State of Telangana and Mr. Vedula Venkataramana, learned senior counsel appearing for the 1st respondent herein. Case of the 1st respondent in his W.P.No.1729/2009
3. The 1st respondent herein filed a writ petition in W.P.No.1729 of 2009 on the file of this Court, seeking implementation of an order passed by this Court dated 09-10-2002, in Application No.1146 of 2002 in C.S.No.7 of 1958. The contentions with which he (the 1st respondent in these appeals) came up with W.P.No.1729 of 2009 were,– that a civil suit for partition in C.S.No.7 of 1958 was filed by one Smt. Saheb Jadi Sultan Jahan Begum, the daughter of late Nawab Dowlat Bahadur, in respect of the matruka properties, allegedly including a land admeasuring Ac.209.00 guntas in Survey Nos.1 to 49 in Raidurg village, Serilingampalli Mandal, Ranga Reddy District; that a preliminary decree was passed in the suit on 06-04-1959; that the decree holders then executed a deed of assignment in favour of the 1st respondent herein and few others on 01-10-2002 in respect of the land of an extent of Acs.143.00 guntas, forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49; that the deed of assignment was recognized by this Court and the 1st respondent and others also paid a stamp duty to the tune of Rs.96,82,000/-; that by an order dated 09-10-2002, this Court recognized the said assignment deed, in Application Nos.1144 to 1147 of 2002 and also directed the Receiver-cum-Commissioner to put the parties in possession of the said land and accordingly, the Receiver-cum-Commissioner delivered the land to an extent of Ac.135.07 guntas in Survey Nos.1 to 7, 10 to 12, 15 to 19, 25 to 28, 30 to 32, 35 to 43 and 45 to 49 under a Panchanama dated 26-02- 2002; that there was also a direction to the Revenue Department to effect mutation in the revenue records; that pursuant to the directions issued by this Court, the Commissioner not only delivered possession of the land, but also filed a compliance report dated 13- 12-2002; that thereafter the 1st respondent herein filed an application in Application No.1409 of 2003, seeking a final decree to be passed in C.S.No.7 of 1958; that accordingly this court passed a final decree on 26-12-2003, in respect of land of an extent of Acs.84.30 guntas in Survey No.46 of Raidurg village in Application No.1409 of 2003; that the 1st respondent herein and others also deposited stamp duty of Rs.4,24,450/- for engrossing the final decree on the same; that by an order dated 09-10-2002, passed in Application No.1146 of 2002, this Court directed the revenue officials to effect mutation in the revenue records; that pursuant to the order passed in Application No.1146 of 2002, the 1st respondent made applications to the Joint Collector on 17-01-2004, 08-06-2006 and 01-05-2008; that the 1st respondent herein also made applications to the Chief Commissioner of Land Administration on 25-05-2004, 13-11-2005 and 19-11-2008; that he also made an application on 01-09-2008 to the Tahsildar; that in spite of repeated applications, the Tahsildar did not effect mutation and did not implement the orders passed by this Court; that one Mr. M. Purnachandra Rao filed an appeal in OSA(SR)No.1900 of 2005, questioning the final decree, but the same was dismissed by a Division Bench by an order dated 26-04- 2005; that the said person filed a Special Leave Petition, in which leave was granted and it was converted into Civil Appeal No.1121 of 2008 on the file of the Supreme Court; that in the said Civil Appeal, the District Collector also sought to get impleaded before the Supreme Court, but the Supreme Court dismissed the application for impleadment filed by the District Collector on 17-05-2007; that even then the District Collector filed a counter in the Civil Appeal, but the Supreme Court dismissed the Civil Appeal by a judgment dated 11-02-2008; that thereafter there was no impediment for the revenue officials to effect mutation in the revenue records; and that even then they did not effect mutation, forcing the first respondent to come up with the writ petition. Order in W.P.No.1729/2009
4. The said writ petition W.P.No.1729 of 2009 filed by the 1st respondent herein, was taken up by a learned Judge of this Court along with another writ petition in W.P.No.581 of 2009 and both of them were disposed of at the admission stage itself, by an order dated 05-03-2009. The order dated 05-03-2009 passed in W.P.Nos. 581 and 1729 of 2009 comprises of four paragraphs, of which paragraphs 3 and 4 alone are sufficient to be reproduced. Hence, they are reproduced as follows:
“A partial final decree was passed by this Court on 26.12.2003 in Application No.1409 of 2003 in O.S.No.7 of 1958, directing several steps. One of the steps is that the names of the decree holders be mutated in respect of the property mentioned in the decree. It appears that the persons, who have purchased part of the property from the parties to the decree, have also approached the respondents for mutation of their names. Having regard to the fact that there was a specific direction in the decree, requiring the authorities first to implement the decree by effecting mutation in only after the initial step is complied with.
Hence, the writ petitions are disposed of, directing that the Deputy Collector/Tahsildar, Serilingampally Mandal, Ranga Reddy District, shall effect necessary mutations in the revenue records strictly in accordance with the decree dated 26.12.2003, in Application No.1409 of 2003 in C.S.No.7 of 1958 passed by this Court, after issuing notices to the affected parties. The subsequent purchasers, if any, shall be entitled to pursue their remedies after this step. There shall be no order as to costs.”
5. Before proceeding further, it must be recorded that the cause title portion of the order of the learned judge shows that the District Collector, Revenue Divisional Officer and the Tahsildar were represented by Government Pleader for Revenue. But the fact remains that the writ petitions were filed in the year 2009 and were disposed of in March, 2009 itself, showing thereby that they were disposed of at the stage of admission. The affidavit in support of W.P.No.1729 of 2009 appears to have been sworn on 02-02-2009. The writ petition was disposed of on 05-03-2009. What happened after the disposal of W.P.No.1729/2009
6. It appears that an application for review was filed by the State in Review Application No.6487 of 2010, but the same was dismissed on 29-12-2010. It appears further that an appeal was filed by a third party in W.A.No.1108 of 2009 in which the State attempted to intervene, but could not get any order. Thereafter, the State filed an appeal in O.S.A.(SR).No.2116 of 2011 along with the an application in Application No.369 of 2011 for leave to file appeal and another application in Application (SR).No.7249 of 2011 for condoning the delay of 2633 days in filing the appeal against the final decree passed on 26-12-2003 in Application No.1409 of 2003. Both the applications of the State were dismissed by a Bench of this Court by an order dated 24-08-2011. It appears that Special Leave Petitions filed by the State in SLP (Civil) Nos.4904 and 4905 of 2012 were also dismissed by the Supreme Court by an order dated 26-03- 2012.
Filing of the Contempt case and the order therein
7. Therefore, complaining of disobedience of the directions issued in W.P.No.1729 of 2009 dated 05-03-2009, the 1st respondent herein filed a Contempt Petition in C.C.No.217 of 2014. The State opposed the contempt petition on the ground, inter alia, (i) that it was barred by limitation; (ii) that the contempt will not lie before the learned single Judge, as the order of the single Judge out of which the contempt arose, got merged with an order passed by a Division Bench in Writ Appeal No.1108 of 2009 and (iii) that the order dated 05-03-2009 is not capable of being enforced for various reasons. After rejecting all the objections raised by the officials of the Revenue Department, the learned Judge held the appellant herein (Tahsildar) guilty of willful disobedience of the order dated 05-03- 2009 passed in W.P.No.1729 of 2009. Therefore, the learned Judge sentenced the appellant herein to simple imprisonment for two months together with fine of Rs.1500/-, to be paid within four weeks. In addition, the learned Judge issued a direction to the appellant to effect mutation in the revenue records in accordance with the final decree dated 26-12-2003 in Application No.1400 of 2003 in C.S.No.7 of 1958.
The present appeals
8. As against the finding of guilt rendered by the learned Judge and the punishment imposed upon him, the Tahsildar has come up with a Contempt Appeal in C.A.No.33 of 2017 under Section 19 of the Contempt of Courts Act, 1971. As against the other portion of the order directing the Tahsildar to effect mutation, the Tahsildar has come up with a Letters Patent Appeal in L.P.A.No.1 of 2018 under Clause 15 of the Letters Patent.
Grounds of appeal
9. Assailing the order of the learned Judge, it is contended by Mr. Sharat Kumar, learned Special Government Pleader appearing on behalf of the learned Additional Advocate General that though the power of this Court under Article 215 of the Constitution cannot be disputed, the object of prescribing a period of limitation of one year, in Section 20 of the Contempt of Courts Act, 1971 cannot be lost sight of and that the said provision cannot be rendered otiose. It is his contention that under Rule 21 of the Andhra Pradesh High Court Writ Proceedings Rules, 1977, an order, for the implementation of which no time limit is set by the order itself, shall be implemented within 2 months. Therefore, by implication, the starting point for computing the period of limitation is the date of expiry of two months from the date of any order passed by this Court, if no time limit is stipulated in the order itself. In this case, the period of two months from the date of the order of the learned Judge expired on 04-05- 2009 and hence, the 1st respondent ought to have filed the contempt petition on or before 04-05-2010. It is further contended by the learned Special Government Pleader that the writ petition in W.P.No.1729 of 2009 was disposed of by a common order dated 05- 03-2009 passed in the said writ petition as well as another writ petition in W.P.No.581 of 2009. A single writ appeal was filed by the other party in W.A.No.581 of 2009 and the said writ appeal was dismissed on 18-08-2009. Therefore, it is contended by the learned Special Government Pleader that though there was no separate appeal in W.P.No.1729 of 2009, the order passed therein got confirmed by the Division Bench on 18-08-2009 and that therefore, the contempt case could not have been entertained by the learned single Judge. The learned Special Government Pleader also assailed the very claim of the petitioner that there was a final decree and contended that the whole thing was vitiated by fraud, and hence, the directions obtained by the 1st respondent by perpetrating a fraud, cannot be sought to be enforced through the contempt jurisdiction of this Court.
Contentions of the first respondent
10. In response, it is contended by Mr. Vedula Venkataramana, learned senior counsel appearing for the 1st respondent that it is well settled that the power of this Court to punish a person for contempt, stems out of Article 215 of the Constitution and not out of the Contempt of Courts Act, 1971. In any case, the failure of the appellant to effect mutation in the revenue records was a continuing wrong and hence, the question of applying the limitation as per Section 20 of the Act, does not arise. The learned senior counsel further contended that the theory of merger pleaded by the learned Special Government Pleader is only a façade. It is not as if the appellant was willing to implement the orders passed in W.P.No.1729 of 2009, if a contempt had been filed before the Division Bench. The learned senior counsel submitted that since the final decree had already attained finality and the attempt made by third parties as well as the State to have the final decree set at naught having already failed, the appellant was not entitled to argue the matter on merits.
11. We have carefully considered the above submissions. Limitation:
12. On the question of limitation, it is no doubt true that under Article 215 of the Constitution, every High Court is a Court of record and it has all the powers of such a court including the power to punish for contempt of itself. But on the question whether such a power can be abrogated or stultified, by any law made by the Parliament, the Supreme Court held in Pallav Sheth v. Custodian (AIR 2001 SC 3763) that a law providing for the quantum of punishment or providing for what may or may not be regarded as acts of contempt or providing even for a period of limitation, cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 215 of the Constitution. Therefore, the prescription of a period of limitation under Section 20 of the Contempt of Courts Act, 1971, cannot be taken as abrogating or stultifying the power of this Court under Article 215 of the Constitution.
13. Section 20 of the Contempt of Courts Act, 1971, declares that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. Admittedly, the 1st respondent herein filed the contempt case beyond the period of limitation and there is no dispute about this factual aspect. There is also no dispute about the fact that under Rule 21 of the Andhra Pradesh High Court Writ Proceeding Rules, 1977, the direction issued by a writ court, is to be implemented within two months, if no period for its implementation is stipulated in the order itself. This is why the learned Special Government Pleader contends that the starting point for the period of limitation was the expiry of two months from the date of the order passed in W.P.No.1729 of 2009.
14. In support of his contention based upon Rule 21 and Section 20 of the Act, the learned Special Government Pleader relied upon a decision of a Division Bench of this Court in Dr. Subhendu Sen (VSM) v. Sri Pradeep Kumar (order dated 01-03- 2011 in C.C.No.997 of 2010). In the said case, the Division Bench of this Court held that Rule 21 would apply to cases wherever no time limit is stipulated by the court, for the enforcement of its orders passed in writ proceedings. Therefore, the Court held that the starting point for the period of limitation would be the date on which the period of two months would expire.
15. But the judgment of this Court in Dr. Subhendu Sen was distinguished by the learned Judge in the order impugned in these appeals, on the ground that in the case of Dr. Subhendu Sen, the limitation had not expired at all. But we think the learned judge was in error in proceeding on the said footing. The decision of the Division Bench in Dr. Subhendu Sen was relied upon, for the proposition of law with regard to the applicability of Rule 21 of the Andhra Pradesh High Court Writ Proceeding Rules, 1977, in the back drop of Section 20 of the Contempt of Courts Act. The fact that the contempt was actually filed within one year in the said case namely Dr. Subhedu Sen, may make the decision in Dr. Subhedu Sen wrong on facts. We are not concerned about the correctness of the decision on facts in Dr. Subhedu Sen. We are only concerned about whether the principle of law followed in Dr. Subhesu Sen was binding on the learned Judge or not. Our answer to this question has to be in the affirmative.
16. In the order impugned in these appeals, the learned judge placed reliance upon the decision of the Supreme Court in Firm Ganpat Ram Raj Kumar v. Kalu Ram (1989 Suppl (2) SCC 418), which was also quoted with approval by the subsequent decision in Pallav Sheth. But in Firm Ganpat Ram Raj Kumar v. Kalu Ram, the tenants filed an affidavit of undertaking before the Supreme Court to vacate the premises within six months. On the basis of the undertaking, the eviction was stayed. But without filing of an affidavit of undertaking and without vacating the premises, the son of one of the partners was set up to file a civil suit and he obtained an order of injunction. Therefore, the contempt petition was filed. It was in that context that the Supreme Court observed that there was a continuing wrong.
17. The reliance placed by the learned Judge in the order impugned in these appeals, upon a decision of the Division Bench of Gujarat High Court and a decision of the Delhi High Court in Lopa Ben Patel v. Hitendra Rambhai Patel (2000 Crl.L.J.2709 (DB)) and Santosh Kapoor v. Apex Computers (P) Ltd., (2009 ILR 3 Delhi 628) appears to be incorrect for the reason that those decisions arose out of cases where monthly maintenance was not paid or monthly payments were not made. These are cases where there was a recurring cause of action.
18. The concept of continuing wrong has a correlation to the concept of recurring cause of action. There are cases where directions issued by the Court would give rise to a recurring cause of action. Say for instance, there is a direction for payment of salary or pensionary benefits. The right to receive, accrues every month and hence the cause of action can be said to be a recurring one.
19. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan1 , the Supreme Court explained the concept of continuing wrong. The Court held that “it is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act 1 AIR 1959 SC 798 responsible and liable for the continuance of the said injury”. The Court also held that “if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue”. However, as an exception, it was further pointed out by the Supreme Court that “if however a wrongful act is of such a character that the injury caused by itself is continuous, then the act constitutes a continuing wrong”.
20. The Court cautioned that it is always necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.
21. Applying to service jurisprudence, the distinction between a continuing wrong and a wrong which is complete, but the mere effect of which continued, it was held by the Supreme Court in Union of India v. Tarsem Singh2 that a belated service-related claim can be rejected on the ground of limitation and that one of the exceptions to the said rule is cases relating to a continuing wrong. It was held by the Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong is commenced, if such continuing wrong creates a continuing source of injury. The Court also pointed out that there is an exception to the exception. This exception to the exception is the grievance in respect of any decision which related to 2 (2008) 8 SCC 648 or affected several others also. Interestingly, the Supreme Court allowed the appeal of the Union of India in Tarsem Singh and restricted the relief granted to the individual, only to a period of three years immediately preceding the date of filing of the writ petition, on the ground that the claim though a continuing wrong, cannot be enforced beyond the period of limitation.
22. In Commissioner of Wealth Tax vs. Suresh Seth3 the Supreme court held that “ordinarily, a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed.” The court further held that “the distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty” and that “ a wrong or default which is complete but whose effect may continue to be felt even after its completion is however not a continuing wrong or default”. This principle was reiterated in Maya Rani Kunj v. Commissioner of Income Tax4 , where the Supreme Court held that a wrong or default which is complete, but whose effect may continue to be felt even after its completion, is not a continuing wrong. 3 (1981) 2 SCC 790 4 AIR 1986 SC 293
23. As a matter of fact, the concept of a continuing wrong in the Law of Torts and Crimes, is nothing but a parallel to the concept of a continuing cause of action in civil matters. More than two centuries ago, Lord Lindley observed in Hole v. Chard Union5 that there is no such thing as a continuing cause of action and that what is called a continuing cause of action is something that arises from the repetition of acts and omissions of the same kind as that for which the action was brought. When an act which constitutes a cause of action is repeated day after day, it becomes a continuing cause of action and the same is what is expressed in Latin as “action de die in diem”. The concept of de die in diem cannot be applied in the branch of Criminal Law. This was explained by a Full Bench of the Bombay High Court in Emperor v. Chotta Lal Amar Chand6 . It was held therein that a person cannot be charged with committing an offence de die in diem over a substantial period.
24. Though the Contempt of Courts Act, 1971 recognises a distinction between the civil contempt and criminal contempt, the essence of both, is to punish the contemnor. Therefore, the civil law concept of de die in diem cannot be applied to the failure of a contemnor to comply with an order requiring him to carry out a single act.
25. In the case on hand, the direction issued to the appellant in the previous proceedings, was to effect mutation in the Revenue records. What was expected of the appellant was to carry out 5 (1804) 1 Ch. 298 6 AIR 1937 Bom 1 (FB) a single act. His failure to carry out the single act of effecting mutation, cannot be said to be similar to a cause of action that arose de die in diem. It may be true that the effect of the failure of the appellant to carry out the single act, may have caused an injury, to be felt by the respondents for a long time, but that by itself would not make it a case of continuing wrong to enable this Court to come to the conclusion that the contempt was saved by limitation. Hence, we have no alternative except to take a position that the contempt petition was filed by the respondents, beyond the period of limitation prescribed by Section 20 of the Contempt of Courts Act, since the starting point for the period of limitation, had to be reckoned with reference to Rule 21 of the High Court Rules. Accordingly, we hold that the contempt case was filed by the respondents beyond the period of limitation.
26. The second objection raised by the learned Special Government Pleader to the maintainability of the contempt case was that the order of the learned single Judge out of which the contempt case arose, had merged with the order of the Division Bench and that therefore the contempt case could not have been filed before the learned single Judge.
27. But we are unable to sustain the said contention. As against a common order passed in two writ petitions, only one writ appeal was filed. The order passed in the writ petition out of which the contempt case arose, was not appealed against. Therefore, the respondents could not have invoked the jurisdiction of the Division Bench. There is a distinction between different parties seeking the same relief on the same or different grounds and different parties seeking the same relief on the same cause of action. Merely because two writ petitions are decided by a common order, no merger would take place, especially in cases where both parties, though had similar claims, were on different pitches. Therefore, this argument of the learned Special Government Pleader is rejected.
Final Decree Unenforceable:
28. As we have seen earlier, the 1st respondent in these appeals came up with W.P.No.1729 of 2009 praying for the issue of a writ of mandamus to direct the Tahsildar to effect mutation in the revenue records, by implementing the orders passed in Application No.1146 of 2002 in C.S.No.7 of 1958 dated 09-10-2002. This writ petition, as we have pointed out earlier, was filed in the first week of February, 2009 and the writ petition was allowed in the first week of March, 2009. To be précise, W.P.No.1729 of 2009 was allowed on 05-03-2009 within a month of filing of the writ petition. Obviously, the writ petition was disposed of at the stage of admission.
29. We cannot resist the temptation to record one disturbing trend of recent origin, in Courts mostly dealing with writ petitions. In olden days, if a case is made out, the writ petition will be admitted and rule nisi will be issued. But once a writ is admitted, it is liable to come in the queue. Since the queue has become long, we have invented a shortcut by ordering what we call as “Notice before admission”. When the queue of cases waiting under the category of “Notice before admission” became sufficiently long, a bypass was found out in the form of asking the Government Pleaders of the respective departments present in court to take notice and to get instructions. Therefore, many times even before the departments could realise what was happening, the writ petitions themselves get disposed of. Some times when the prayer made in the writ petition is only to give effect to some other order or decree of Court, we tend to pass orders at the stage of admission, in good faith that such type of cases need not wait in the queue for disposal. But the procedure so invented, for the purpose of facilitating early disposal of certain types of cases, which need not wait for a long time, has been proving to be disastrous.
30. Be that as it may, the claim of the 1st respondent herein for mutation of revenue records in his favour was based on an order passed in Application No.1146 of 2002 in C.S.No.7 of 1958. Therefore, it may be necessary to look into certain fundamental facts, since C.S.No.7 of 1958 itself has a chequered history. The series of orders passed in several proceedings in C.S.No.7 of 1958 actually constitute both a legal history and a legal mystery. In order to understand the same, it may be necessary to see the background.
History of C.S.No.7 of 1958:
31. It appears that a suit in O.S.No.130 of 1953 was originally filed on the file of City Civil Court, Hyderabad, by one Smt. Sultana Jahan Begum, daughter of Nawab Moinuddowla Bahadur seeking partition. The suit was withdrawn and transferred to the file of the High Court and numbered as C.S.No.7 of 1958. The plaint contained six schedules namely Schedules A to F, detailing both movable and immovable properties of which partition was sought. The main averments in the plaint read as follows:
“The defendant No.1 from the date of death of Nawab Moinuddowla to the present day is in possession of all the movable and immovable property as Amir-e-paigah and as eldest son. During which period he was paying the apportioned share as Atiyat shareholder from the revenues of jagirs till the abolition of Jagirs. And the defendant No.1, did not pay any profits from the above mentioned private properties nor has he given the accounts.
As per order and regulation, the jagirs of Hyderabad state were taken charge of and merged into the state. And due to this abolition of jagirs, the amirs and jagirdars are given commutation amounts under the supervision of jagir administrator from 15th April 1950. And the paigah jagir was also abolished. The parties herein are getting their due share from the government of Hyderabad from 15th April 1950.
After the abolition of jagirs & paigahs, the plaintiff demanded detailed lists and regular accounts of above mentioned property, from defendant No.1, who had possession over all the matruka of late Nawab Moinuddowla from the date of his death, i.e., 2nd Ramzan 1360 Hijri to this day, so that as per the Shariat Law these may be distributed and Shara share of the plaintiff may be given to her by the defendant No.1. But defendant No.1, even after repeated demands did not give any reply nor consented for the partition of matruka. But it came to know that defendant No.1 is trying to shift the movable matruka property of late Nawab Moinuddowla, out of India to the extent that his bad intention was disclosed when he was taking away out of India by Air valuable jewellery worth lakhs of rupees.
Plaintiff is the daughter of late Nawab Moinuddowla, and is married, and is residing with her husband in Secunderabad. She has no possession over any of the matruka property of Nawab Moinuddowla. And as Shariats right one is entitled to receive (14) Siham from the matruka of late Nawab Saheb, and she is also entitled that from the date of death of late father to the present day, demand the regular account of profit of property of the deceased, from the defendant No.1, as per attached lists. As defendant No.1, in the capacity of sharai ameen, he is bound to forward the detailed accounts of total property, movable and immovable of late Nawab Moinuddowla.
The defendants 23 to 26 are the wives of the deceased. Their dower debts are not payable nor the Nafka-i-iddat. As they are guzareyab of paigah, they are entitled to receive their shahrai share as other daughters, plaintiff and other sons.
Plaintiff is a pardanashin lady. To the extent of her knowledge she has annexed lists under the heads of Matruka property of late Nawab Moinuddowla. If any property movable or immovable is found in addition mentioned in the lists, in the possession of defendants, in that case also that will be partitioned according to shariat law, and that will also be included as matruka.
Plaintiff to the extent of her knowledge has given the details of the matruka property as cash and shares. In addition to these, if it is found in the custody of any defendant, then plaintiff is entitled to get the interest at the rate of Rs.4% per annum upon the profits already received till the date of obtaining decree or final execution of a decree. And this may be given from the share of that defendant from whose possession that property is found.
The valuation for the jurisdiction and for stamp as per list and articles annexed herewith to the extent of Siham-i-Shariah of the plaintiff is fixed as about Halli Seven Lakhs of rupees, upon which Rs.5,662/7/- is the stamp payable.
If it is found in extra to this, the stamp for that part will be payable, but plaintiff is not in a position except the property as per list annexed as A to F, there is no such movable or immovable property by which the court stamp can be paid. So the plaintiff is filing this suit in forma pauperis.
The suit property is in the jurisdiction of District Hyderabad, Secunderabad and City Civil Court, and the parties also lives in the jurisdictions of the above mentioned courts. Therefore the suit can be heard by your honourable court.
Defendant No.1, declined to partition the matruka property and the profits accrued from it, from 5th June 1952, and so this is the date for the appearance of this suit.
Therefore petitioner prays that:
The decree may be passed in favour of the plaintiff against the defendants with the cost of the court, for the partition of the matruka of late Moinuddowla for H.S. Rs.7 Lakhs as per prayer and the profit of interest as per plaint.”
32. It appears that to begin with, there were about 49 defendants in the suit. The Jagir Administrator of the Government of Andhra Pradesh was the 47th defendant. The Secretary, Finance Department, of the Government of Andhra Pradesh was arrayed as the 48th defendant.
33. Actually, the number of defendants became more than 49 due to the death of a few of them. But strangely the legal heirs of the deceased defendants such as defendants 4 and 5, were impleaded without showing them in Arabic numerals but showing that through alphabets under defendant numbers 4 and 5.
34. During the pendency of the suit, certain Interlocutory Applications were taken out by the plaintiff, whose particulars are as follows:
1) I.A.No.132 of 1958 for the appointment of a receiver for the protection of the suit property;
2) I.A.No.193 of 1958 for an injunction against defendant No.1 restraining him from disposing of the properties;
3) C.M.P.No.190/2 of 1954-55 for discovery, inspection and production of documents in the possession of the 1st defendant; and
4) I.A.No.126 of 1958 praying for recording a compromise and for passing a preliminary decree and the appointment of receivers with the powers set out in the memo of compromise.
35. The main suit C.S.No.7 of 1958 along with all the above mentioned four applications were disposed of by a learned Judge of this Court by a judgment dated 6-4-1959. It will be useful to extract the entire judgment as follows:
“Plaintiff withdraws her suit against the Government and the Jagir Administrator, defendants 47 and 48. The counsel appearing for these defendants press for costs.
The plaintiff also withdraws her case against defendants 27 to 46 and 49. This is because under the compromise the property in relation to which these defendants have been impleaded is not matruka property and no useful purpose will be served by continuing the suit against these defendants. Defendants 27 to 32 and 40 to 42, 44, 45 and 49 are absent as before. So also defendants 34, 39 and 46. Defendant No.33 is present in person and defendant No.43 is represented by his counsel. Defendant No.43, as a matter of fact has made an application I.A.No.83/59 that a decree so far as the relief for declaration contained in the compromise is concerned should not be drawn in terms of the compromise because in so doing the defendant’s interests are likely to be affected. The defendant admits that the property with which he is concerned is not included in the compromise schedule of matruka property which is to be partitioned amongst the heirs. It is not contained in schedule B property also in relation to which a declaratory relief is sought so far as defendant No.1 is concerned; nor in schedule C and D properties which according to the compromise are said to be the absolute properties of Nawab Laiquddin Khan and Nawab Kutubuddin Khan who are not at all parties to this suit. What the learned counsel contends is that in as much as his properties have not been mentioned in any of these schedules but are expressly excluded from schedule C, it is likely that this may give scope for dispute in any future action. But when it is plain that under the compromise or the decree that is to follow no right in the property with which this defendant No.43 is concerned has been granted, his fears are wholly unfounded. Schedule C property is not the matruka property under the present arrangement. Laiquddin Khan whose right or interest therein has been admitted is not a party to the suit or compromise and no declaratory decree in his favour would therefore be drawn in this case. It is not the contention of the defendant No.43 that in the suit for partition of matruka property his right require determination. He did not come to the court of his own accord as an interested party to the suit. He is a matter of fact, contested seriously application of the plaintiff against him under Order 1 Rule 10 CPC. Thus, if he were not impleaded certainly he would not have had any grievance that his right to his property was not being declared or recognised in this suit by way of decree or otherwise. Similarly, when the suit is being withdrawn against him he should have no such grievance. It is not open to him to say that since he has been impleaded his right to this property must necessarily be determined or that plaintiff cannot withdraw his suit against him even though she no longer lays any claim to his property. The plaintiff has under the provisions of Or.23 Rule 1 CPC an absolute right to withdraw her suit. If such a right is qualified in any manner it is only under the rule of equity that such withdrawal should not affect or prejudice the accrued right or interest of the defendant. There is no such apprehension in this case. Under these circumstances, the plaintiff cannot be precluded from exercising her right which is otherwise unfettered. All that the defendant can demand is his costs but this too is subject to the discretion of the court. In this way, the petition of defendant No.43 would fail. The suit against him as a remit of withdrawal would be dismissed with costs which are fixed at Rs.150/-.
Similarly, the plaintiff’s suit on account of her withdrawal would stand dismissed also against defendants 27 to 49. There remains the question of costs. Some of these defendants, as already pointed out, are absent. Having regard to the property involved and the fact that most of these defendants who are represented have not yet filed the written statements, I think it will be proper if Rs.150/- be allowed for those respondents who have not filed their written statements and Rs.200/- for those who have filed their written statements. This order of costs will govern the case of those defendants who are present and not those who have been shown as absent. In this way, only defendants, 33, 35, 36, 37, 38, 43, 47 and 48 would be entitled to costs according to the above mentioned rates.
So far as the other defendants are concerned, the suit has been adjusted by a compromise which is lawful and which has been duly verified. The parties have no objection to its being recorded.
On a perusal of the terms of the compromise it would appear that the decree which would follow is partly preliminary and partly final. In decrees for partition the provisions of Or.20 rule 18 CPC have their application. According to this the partition of lands assessed to payment of revenue would be effected by the Collector or any subordinate of his deputed by him in accordance with the provisions of Sec.54 CPC. The other property may be partitioned according to the directions of the court. Under Or.26 rule 13 it can be effected by a commissioner who in accordance with the directions of the court will effect partition following the procedure laid down in rule 14. The compromise takes into account the partition by a commissioner who will also be receivers as management etc, is entrusted to them. The provisions of Order 40 however must also be applicable to such receivers and the duties imposed by rule 3 therein shall devolve on them in relation to maintenance and periodical submission of accounts preferably at the end of each year and similar other acts. Thus, it would appear in the capacity of the commissioners, and receivers, they will be bound by the statutory duties and obligations under Or.26 Rule 14 CPC. Since they have been nominated by the parties under the compromise such nominee may continue as commissioner-receivers. But the powers that they will exercise shall not only be subjected to the supervision, directions and control of the court but also as far as possible within the framework of Order 26 Rule 14 CPC and Or.40 rule 3 CPC. Thus, all matters relating to allotment and award of sums and such other functions specified or contemplated by the compromise as are to be performed in the capacity of the commissioners shall be performed by following the procedure in Or.26 rule 14 and the other duties as receivers shall be discharged with due regard to the provisions of Order. 40. Execution of the decree and institution of suits, if necessary, will be carried out with due intimation and only after obtaining the directions and orders of this Court. Thus, while directing that the decree be drawn in terms of the compromise. I also order that the Commissioner-Receiver shall be governed by the above directions as well. The parties to the compromise agree that these directions are necessary to avoid any misconception or arbitrary or capricious exercise of powers by the receivers. It is however made clear here that should it become necessary that any land assessable to land revenue must be partitioned it will not be open to the commissionerreceivers to do the same but such partition shall be effected as under Order 20 rule 18(1) in accordance with the provisions of section 54 CPC. It is plain that the compromise declares the rights of various parties and also the matruka property available for distribution. No difficulty therefore would arise in the process of partition. The result is that it is hereby ordered that the compromise be recorded and a decree shall follow in terms thereof subject to the above directions. So far as schedule C, D and G are concerned there shall be no declarations made as the persons to whom these properties are allotted are not parties to the suit. In relation to schedule B property, a decree for declaratory relief shall be drawn only if defendant No.1 pays the requisite court fee therefor. Subject to this and also the order passed on 15-1-1959 and directions given above, decree be drawn in terms of the compromise.
All the interlocutory orders in the suit shall stand vacated. The plaintiff insists on the continuation of the proceedings under I.A.No.193/58. So far as this proceeding is concerned, the matter shall be disposed of after the counter is filed and arguments are heard. That petition may be posted in due course for final orders.
Application Nos.84 and 85 of 1959
This suit has been disposed of on the basis of a compromise dated 19- 12-1958 entered into between the parties which was duly verified then. Latifuddin Khan defendant No.4 died during the pendency of the suit leaving a wife and a concubine and children from both of them. Defendants 4 (b) to (j) are the children from his wife and defendants 4-(a) and (1) to (o) are children from defendant No.4 (k), the concubine Aasia Begum. According to the compromise defendants 4 (a) to (d) get their legal share in the matruka and so in the commutation amount but defendants 4(a) and her children get only a share in the commutation amount. Out of these children some are minors. Defendant No.4 (o) was a posthumous son of defendant No.4 who could not be brought on record within time. He was thought of only when defendant No.4 (m) his sister died and he was actually brought on record after the compromise was entered into and was being verified. At the time of verification his guardian had applied for leave to enter into a compromise. Though in the petition the name of defendant No.4 (o) was left out, the accompanying affidavit however contained prayer that the compromise be recorded and leave be granted to enter into a compromise on behalf of the minor defendants 4(b) to 4(j) 4 (n) and 4 (o). An order was passed on this petition on 19-12-1958 allowing the prayer. Thereafter it appears the compromise duly signed on behalf of this minor has not been filed nor a certificate of the lawyer contemplated by the provisions of law was produced. This is due to some inadvertent mistake which was discovered only at the time of decree. The parties concerned have therefore now come with a supplementary compromise which according to the prayer contained should be deemed to be part of the original compromise on which the decree has been based. This has been signed by plaintiff, defendant No.1, by the counsel and guardian of defendant No.4 (o), by the counsel and guardian of defendant Nos.4 (b) to (j), by the counsel and guardian of defendant No.21 and counsel on behalf of defendant No.22. Mr. Ansari on behalf of defendant No.21, Mr. Raman on behalf of defendant No.4 (b) to (j) and (l and (n) and Mr. Srikrishna for defendant No.4 (o) Mr. Srikrishna, defendant No.21 in person and Mir Liak guardian of defendant No.21, Aktar Jeha Begum and her counsel Mr. Nurulla Ansari and Mr. Rai on behalf of defendants 4 (b) to (j) and (l) and (n) verify the signature and the contents of this compromise. A stencil copy of the original compromise has been filed and that too has been signed by the plaintiff and the defendants referred to above. Mr. Ahsan representing defendants 24, 25-a and 26, Mr. Ghouse Mohammad for defendants 2, 3, 6, 7, 8, 10, 11 and 12, Mr. Jaleel Ahmed on behalf of defendant 13, Mr. Srikrishna appearing for defendants 16, 17,. 18 and 19, Mr. Nurulla Hussain for defendants 20 and 21, Mr. Rai Sadguru Perhad on behalf of defendant No.22 and Wajhuddin Khan guardian ad litem of defendant No.22, Dawoodunnisa Begum who is present in person, have no objection, if this compromise also be recorded. The present compromise, it may be noted, is in no way inconsistent with the previous compromise. Since by an inadvertent mistake the counsel appearing for defendant No.4 (o) had failed to file a certificate and also take the signature of the guardian on the original compromise the present proceeding became necessary.
As the minor gets the same benefit as the other minors of his status under the compromise and the compromise is beneficial to him in so far as he gets a right in the commutation amount necessary leave to enter into compromise is given. As the compromise is a lawful adjustment and disposes of the entire claim, it can be recorded.
It is, therefore, ordered the present compromise also be recorded and treated as supplemental to the previous compromise and the decree so far as defendant No.4(o) is concerned be also drawn in terms of the compromise.”
The decree passed and properties covered:
36. There were six schedules to the plaint which contained the details of the suit properties. The memorandum of compromise on the basis of which a decree was passed on 06-04-1959 concluded that the properties mentioned in Schedule-A to the memo of compromise alone constituted the matruka properties. This Schedule-A comprised of about 254 items.
37. Though it is little tedious, we would bring on record, the entire Schedule-A to the memo of compromise in C.S.No.7 of 1958, which reads as follows:
SCHEDULE “A” List of Property
|S.No.||Property Division||Old No.||New No.|
|2.||– Do – Bagh Imli Mahal||72-98|
|3.||Moin Bagh Shamshahabad||575||29|
|5.||Akbar Bagh, Toli Chowki||150,149, 155/1|
|6.||-do- -do-||150/2, 148/1|
|7.||Lallaguda||510, 513, Bunglows|
|8.||Bagh Ghouse Khan, Saroornagar|
|10.||Bagh Moosa Rahmoo||220|
|12.||Tehniyat Bagh, Ambarpet||1053|
|13.||Amjad Dowla Garden||1651-1652||18-19|
|14.||Bungalow No.25, Bolaram||25|
|15.||Bunglow No.36, Bolaram||36|
|16.||Khana Bagh, Shadi Khana||791-787||625-656|
|17.||Devdi City Shah Gunj||725-767||590-631|
|18.||Misry Gunj and Moinpura||651|
|19.||Havali Badruddin Khan|
|20.||Kancha Balamari Near Narkodah|
|21.||Zamboor Khana, out of Fateh Darwaza|
|23.||Syed Omerguda, Near Jahanuma|
|24.||Grass Garry Jahanuma|
|28.||Shah Gunj III Division||1195||883|
|67.||-do-||682/20, 21||529/20, 21|
|86.||-do- Zinc Sheets||732||598|
|91.||-do- Near Kilvath||738-740||604|
|152.||-do- 3rd Division||787/3||652/3|
|164.||Misry Gunj Feel Khana, II Division||221||592-593|
|168.||Police Naka Amir-e-Kabeer||219||560|
|169.||Jahan-numa, II Division||651-659||1-5|
|196.||-do- -do-||609-612||93, 93/1|
|200.||-do- -do-||643-648||113-117, 117/1|
|214.||Jahan-numa, III Division||639||111|
|219.||Noozoldaran III Division, outside Misry Gunj|
|220.||-do- Sana Baigh||220||561|
|221.||-do – Inside Rekab Gunj Near Kelwat|
|222.||-do- Bazar Khas Shah Gunj|
|223.||-do- outside Shamsheer Gunj|
|225.||-do- Parwarsh Gunj Siddiambar Bazar|
|226.||Chowk Maharaj Gunj|
|227.||III Division Inside houza Jeloalli|
|228.||Bazar Amir Gunj Purana Pull|
|229.||III Division Inside Shakar Gunj|
|LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)|
|230.||Maktah Bahdaru Ali|
|235.||-do- Sough Bowli|
|237.||-do- Nawab (town)|
|238.||-do- Mama (town)|
|239.||-do- Bagh Kakgud|
|240.||-do- Hajiali Gud|
|241.||-do- Permit Shah Guda|
|242.||-do- Muzhar Guda|
|243.||-do- Bagh Moosa Lamhoo|
|244.||-do- Amjad Nagar|
|245.||-do- Mohammed Nagar|
|246.||-do- Sangi Guda|
|247.||-do- Ali Sahab (town)|
|251.||-do- Kol Bowli|
|253.||-do- Rai Samande|
|254.||-do- Roshan Bowli|
Claim of the 1st respondent:
38. The claim of the 1st respondent in his writ petition in W.P.No.1729 of 2009 was that the decree holders under the preliminary decree dated 06-04-1959 in C.S.No.7 of 1958 assigned their rights in his favour and in favour of others on 01-10-2002, in respect of land of an extent of Ac.143.00 guntas, forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49 of Raidurg village, Serilingampalli Mandal, Ranga Reddy District; that the deed of assignment was accepted by this Court by an order dated 09-10- 2002 in Application No.1146 of 2002 and that thereafter this Court passed an order on 26-12-2003 in Application Nos.1144 to 1147 of 2002 and Application No.1409 of 2003.
39. It may be interesting to note that what was claimed by the 1st respondent herein, in his Application No.1409 of 2003 was to pass a final decree in C.S.No.7 of 1958, in respect of land in Survey No.46, measuring about Ac.84.30 guntas in Raidurg village, Serilingampalli Mandal, Ranga Reddy District. In the prayer portion in Application No.1409 of 2003, the 1st respondent indicated that the land in Survey No.46 is to be correlated to Item-234 of Schedule-A. But Schedule-A in entirety has been extracted by us in the preceding paragraph. Item-234 of Schedule-A as contained in the decree dated 06-04-1959 merely stated “Maktah Raidurg”. Neither any survey number, nor the extent of land nor even boundaries were indicated in Item-234. In addition, the common heading given to items-230 to 254 was “LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)”.
40. In fact, it is stated in the judgment rendered on 06-04-1959 in C.S.No.7 of 1958 that it was a preliminary-cum-final decree. Clause 4(g) of the decree made it clear that the Commissionerscum-Receivers were entitled, for the purpose of effecting the distribution of properties among the persons entitled thereto, to sell all the properties except Items-230 to 254 in Schedule-A. The decree in respect of Items 230 to 254, was made subject to the restoration or release of the same by the Government in favour of Paigah Asman Jahi.
41. In the light of such a clear cut exclusion, in the decree itself and also in the light of the fact that item-234 in Schedule-A did not contain any survey number, description, or extent of land, we do not know how the 1st respondent herein could have sought a final decree in respect of S.No.46 to the extent of Ac.84.30 guntas.
42. In addition, the judgment in the suit very clearly indicated that the State Government, which was impleaded as the 48th defendant, was given up and that the suit was dismissed as against the State Government.
43. But without reference to all this, the 1st respondent managed to get an assignment in his favour, recorded by an order dated 09-10-2002 in Application No.1146 of 2002 and also got a final decree on 26-12-2003 in Application No.1409 of 2003. This shows that the orders dated 09-10-2002 and 26-12-2003 were obtained completely by fraud. At the cost of repetition, it should be pointed out,–
a) that the 1st respondent managed to get a deed of assignment executed in his favour by the decree holders in C.S.No.7 of 1958, despite the fact that clause 4 (g) of the decree did not enable even the Commissioner-cum-Receiver to sell the land till the lands were released and restored by the Board of Revenue;
b) that the 1st respondent managed to identify a non-descript property and get a final decree in his favour, in the sense that when the original decree merely described Item 234 of Schedule-A as “Maktah Raidurg”, the 1st respondent included the whole village of Raidurg and identified Survey No.46 in the village; and
c) that despite the fact that the suit was dismissed as against the State Government, the 1st respondent sought to compel the revenue authorities to recognize his title, even without showing whether or not, the Board of Revenue ultimately released the Maktah property in favour of the decree holders.
44. As we have stated earlier, there was no decree against the Government, as the suit itself was dismissed against the Government. Therefore, the 1st respondent herein could not have executed the decree against the Government in a civil court. Consequently, the Government were not bound to effect mutation in the revenue records, thereby forfeiting any claim that they may have, to the property. On a final decree obtained in the above fashion, in relation to a property, which could not be described in the plaint schedule, the 1st respondent obtained a direction in W.P.No.1729 of 2009. This is fraudulent. Since fraud vitiates all solemn acts, the 1st respondent cannot seek to enforce such a final decree through the machinery available to this court in the contempt jurisdiction.
45. The learned senior counsel appearing for the 1st respondent highlighted the abortive attempts made by the Government of Andhra Pradesh to implead itself as a party to the Civil Appeal in C.A.No.1121 of 2008 filed by a third party and the dismissal of the appeal filed by the Government of Andhra Pradesh in OSA (SR) No. 2116 of 2011. Therefore, he contended that the Government of Andhra Pradesh is now bound by the final decree.
46. But, we do not think so. First of all there was no decree as against the Government of Andhra Pradesh. The judgment dated 06-04-1959 passed in C.S.No.7 of 1958, which we have extracted above, shows that the suit was dismissed as against the Government of Andhra Pradesh. Once a suit is dismissed as against a party at the stage of preliminary decree, we do not know how a final decree will bind the party. In fact, the Government appears to have been ill-advised to file OSA (SR) No.2116 of 2011 with a delay of 2633 days, without realizing that there was no preliminary decree against the Government. In such circumstances, the dismissal of the delay condonation petition filed by the Government of Andhra Pradesh cannot make the Government of Andhra Pradesh a judgment debtor.
47. As we have pointed out earlier, the Contempt Case out of which the present appeals arise, were born out of the alleged failure of the Tahsildar to implement the orders of this Court in Application No.1146 of 2002, as directed by this Court in W.P.No.1729 of 2009. The affidavit in support of W.P.No.1729 of 2009, which contains the basis of the claim of the 1st respondent, shows that the averments therein are actually castles in the air. In paragraph 2 of his affidavit in support of W.P.No.1729 of 2009, the 1st respondent claimed that C.S.No.7 of 1958 was filed by one Smt. Saheb Jahi Sultan Jahan Begum, in respect of the matruka properties including the land admeasuring Ac.209.00 guntas in Survey Nos.1 to 49, situated in Raidurg village, Serilingampalli Mandal, Ranga Reddy District, listed at S.No.234 in Schedule-A of the plaint. But Item 234 in Schedule-A to the plaint did not contain (i) either the extent of land, (ii) or the survey number, (iii) or the boundaries and (iv) or any other measure of identification of the property. In addition, this Item-234 was part of a list of several properties from S.Nos.230 to 254 listed under the caption “LIST OF MAKTAS (UNDER APPEAL WITH REVENUE BOARD)”. Therefore, the very foundation of the claim of the 1st respondent in W.P.No.1729 of 2009 was illusory.
48. In paragraph 2 of his affidavit in support of W.P.No.1729 of 2009, the 1st respondent also claimed that a preliminary decree was passed by this Court and the decree holders executed a deed of assignment in his favour, in respect of the land of an extent of Ac.143.00 guntas forming part of Survey Nos.1 to 37, 39 to 43 and 45 to 49.
49. But clause 4 (g) of the decree reads as follows:
“(4) that the Commissioners-Receivers shall,–
(g) for the purpose of effecting the distribution of the properties among the persons entitled thereto, the Commissioners-Receivers shall have powers to sell the said properties by public auction and exercise all powers necessary for effecting the division of the same between among defendants 2 to 10 and 14 to 22, each son getting 2/33 and daughter getting 1/33 share in the properties mentioned in Schedule-A except Items-230 to 254 of this schedule and the items of properties allotted to the plaintiff, defendant Nos.2 to 22 will get their share namely each son getting 2/35 and each daughter getting 1/35 from the arrears of income, future income, compensation or commutation or sale proceeds of the items 230 to 254 of Schedule-A detailed under the head of “Maktas in case the same are restored or releasing in favour of Paigah Asman Jahi”.
50. Therefore, there could not have been an assignment, by the decree holders, especially when the Commissioners-Receivers themselves were restrained from dealing with these items.
51. Once the entire foundation upon which the claim of the 1st respondent is built, is found to be shallow, illusory and fraudulent, all the orders built upon such foundation, should fall like a pack of cards. We have not heard of an entire village without any description including survey number and extent being cited as one of the items in a suit for partition and we have certainly not heard of parties alienating indeterminate shares pursuant to a preliminary decree, which also did not cover these items.
52. It must be pointed out that there are lot of applications, writ petitions, Original Side Appeals, Miscellaneous Petitions, etc., arising out of C.S.No.7 of 1958, which are still pending in a huge batch of cases. It is only due to the fact that the entire batch has been specially assigned to this Bench, that we have been able to take judicial notice of all the above facts including the averments in the plaint, the judgment in the suit and the list of properties that formed the subject matter of the suit. We are conscious of the fact that the learned Judge, against whose orders the present appeals have been filed, did not have the benefit of the records in C.S.No.7 of 1958. But we have had the benefit of the records in that suit, since all matters relating to the said suit have been assigned specially to this Bench by the orders of the Hon’ble Chief Justice.
53. It is quite unfortunate that public interest was sacrificed in this case, with a series of orders being passed in C.S.No. 7 of 1958 in favour of the 1st respondent from the year 2002, without reference to the original records in C.S.No.7 of 1958. It is this series of orders, which led to a chain, with one leading to the other and the other leading to a third and so on and so forth which has eventually left the Government in total wilderness. The Government against whom the suit was dismissed, at the instance of the plaintiff, has now become a major judgment debtor. The lis between the owners and the Government was left undecided in the suit and the mere division of the property now in dispute (Item 234) was made subject to the orders of the Board of Revenue. If that is so, no Court can compel the Government to give up their rights and sacrifice the huge extent of about 100 acres in a prime locality in favour of third parties to the detriment of public interest. Hence, the Letters Patent Appeal and the Contempt Appeal are liable to be allowed. Accordingly, they are allowed and the order of the learned Judge set aside.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
V. RAMASUBRAMANIAN, J
N. BALAYOGI, J