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2004 DIGILAW 750 (AP)

Hyder Khan v. Zakirunnisa Begum

2004-07-29

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS is an application filed under Section 151 CPC to modify the order passed by this Court in Appl. No. 716 of 2002. Through the order passed in appi. No. 760 of 2002, this Court directed the District Court, Rangareddy, to deliver possession of Ac. 5. 02, guntas of land in s. No. 77 of Hafeezpet Village, Serilingampalli mandal, Rangareddy District to the petitioners. Through the present application, the petitioners seek modification of the same to the effect that the possession be delivered to them through the Receiver/ commissioner, the second respondent herein, instead of the District Judge, Rangareddy. ( 2 ) HEARD the learned Counsel for the petitioner and Receiver/commissioner. ( 3 ) THE petitioners claim to be purchasers of Ac. 5. 02 guntas of land in survey No. 77 of Hafeezpet Village, sherilingampally Mandal, Rangareddy District from Smt. Zaheerunnisa Begum, W/o. Mohammad Khan, Defendant No. 94 in c. S. No. 14 of 1958 on the file of this Court. They filed Appl. No. 759 of 2002, under order 22, Rule 10 read with Section 251 cpc, for impleading them as party defendants to CS No. 14 of 1958, and interlocutory proceedings therein, Appl. No. 760 of 2002 was also filed under the same provision namely, Order 22, Rule 10 read with section 151 CPC, seeking a direction for delivery of possession of Ac. 5. 02 guntas of land in Sy. No. 77 referred to above, by issuing a warrant of possession, in favour of the petitioners, through the District Judge, rangareddy District, Appl. No. 756 was filed under Section 151 of C. P. C. for a direction to the District Collector, Rangareddy District, revenue Divisional Officer concerned and the Mandal Revenue Officer, Serilingampalli, to mutate the shares of assignors in respect of the said land in favour of the petitioners. One more application, being Appl. No. 762/ 02 was filed under Order 22, Rule 10 CPC to recognize the assignment of the said land in their favour, by the respondent therein. Through a common order dated 12-7-2002, this Court ordered the applications as under:"learned Counsel for the respondent 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. Through a common order dated 12-7-2002, this Court ordered the applications as under:"learned Counsel for the respondent 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. " ( 4 ) NOW, the petitioners seek modification of the order passed in Appl. No. 760 of 2002 to the effect that the delivery of possession be undertaken by the Receiver/commissioner instead of the District Judge, Rangareddy, district. ( 5 ) IT is not in dispute that C. S. No. 14 of 1958 is filed for the relief of partition and separate possession of the suit schedule properties. A preliminary decree was passed way back in the year 1963. The shares of all the parties, including Defendant No. 94 were ascertained. So far as the allotment of properties, be it, movable or immovable, in favour of the respective parties are concerned, no final decree has been passed as yet. The question of an individual sharer becoming conferred with absolute rights in any portion of the suit schedule property in a suit for partition, would arise, if only the final decree is passed and the possession of the property allotted to his or her share is delivered. The final decree has to be engrossed on a stamp of requisite value. It is ununderstandable as to how the petitioners or for that matter their vendor Jahirunnisa begum had acquired absolute rights vis-avis the property. At the most, the petitioners can step into the shoes of the first respondent on the basis of assignment or transfer of the property in their favour. Even in such a case, they have to approach this Court for passing of a final decree in accordance with law. The delivery of possession can be prayed for only if the preliminary or final decree provides for it. ( 6 ) THIS question fell for consideration before a Division Bench of this Court, in relation to an order passed in C. S. No. 14 of 195 8 itself. In the compromise decree, that was passed in the suit, Item No. 30 of the IV Schedule was allotted to the share of defendants 51 and 52, with the consent of the parties. In the compromise decree, that was passed in the suit, Item No. 30 of the IV Schedule was allotted to the share of defendants 51 and 52, with the consent of the parties. In fact, Defendants 51 and 52 were declared as the exclusive owners of that item, under a clause in the compromise decree. One Kalavaty filed E. P. No. l of 2001 in this Civil Suit for delivery of a portion of Item No. 30, on the basis of a sale deed, dated 12-6-1967, said to have been executed by Defendants 51 and 52. Through an order dated 9-4-2002, a learned Single judge, ordered the E. P. , and enabled the applicants therein to recover possession, if necessary by police aid. One T. Saraswathi prasad Singh, filed O. S. A. No. 29 of 2002, challenging the order passed in the E. P. He pleaded that he purchased the very property through sale deeds, dated 2-2-1962. He contended that the E. P. , was not maintainable, since there was no final decree and there was no direction in the preliminary decree for delivery of possession, hi the judgment reported in T. Saraswathi Prasad singh v. G. V. Kalavathy and others, 2002 (5) ALD 248 = 2003 (2) ALT 39 , a Division bench of this Court held as under: further, the terms of compromise would disclose that D-51 and D-52 shall be exclusive owners and there is no direction that they are entitled to the delivery of possession. Since there is no direction in the decree for delivery of possession, the purchaser from d-51 and D-52 cannot seek for delivery of possession by way of execution. The remedy of G. V. Kalavaty is to file a suit for declaration of title and for delivery of possession, if so advised. Unless, there is a decree for delivery of possession, the execution petition is not maintainable. The argument of the Advocate for the 1st respondent that these matters can be decided in the execution proceedings and all the objections can be decided under Order XXI, rules 97 to 101 C. P. C. only when there is decree for delivery of possession. " ( 7 ) APART from maintainability, the division Bench considered the matter on merits also. " ( 7 ) APART from maintainability, the division Bench considered the matter on merits also. It was held that even where an e. P. , was maintainable, and there is a direction as to delivery of possession, by the high Court, the executing Court, has to adjudicate all the questions involved, and only thereafter, direct delivery of possession. The relevant portion reads as under:"without deciding the right and title to the disputed property, the delivery of possession ought not to have been ordered. For the above said reasons, we are of the opinion that the decree in question is not executable insofar as the E. P. schedule property is concerned and the 1st respondent smt. G. V. Kalavathy is not entitled for the execution of decree and for delivery of possession of E. P. schedule property and the learned Single Judge committed error in passing order for delivery of the properties insofar as E. P. schedule mulgies are concerned and therefore the said order is liable to be set aside. " ( 8 ) WHEN this is the view taken, in relation to an execution proceedings, the question of the applicant being permitted to recover possession by filing an application under Section 151 C. P. C. , does not arise. It is rather strange and agonizing that such applications are found in plenty in C. S. No. 14 of 1958; and astonishingly many of them were ordered. The suit was transformed into a live-fountain, for the purpose of securing such orders, in relation to valuable properties. The tenor of the applications, in fact, does not fit, even into administration, or scheme suits. Recognition of assignments, in respect of vast extents of urban properties, was sought without verification, as to the scope and nature of the decree, stage of the suit, nature of assignment, compliance with Section 17 of the Registration Act etc. The applicant herein and several others have in fact, procured orders for delivery of possession, even before a final decree was passed. The lands form part of a schedule, wherein the properties described with reference to the village, without mentioning the extent, muchless, survey numbers. Assistance of this Court was taken to recover possession, which was otherwise impermissible for them, in law. They derived greater benefit out of such orders, than what they could have got through suits for declaration of title and recovery of possession. Assistance of this Court was taken to recover possession, which was otherwise impermissible for them, in law. They derived greater benefit out of such orders, than what they could have got through suits for declaration of title and recovery of possession. This Court is compelled to observe that the process of the Court was grossly misused. ( 9 ) THE petitioners sought relief only against the first respondent. On behalf of the first respondent, it was stated, that she has no objection for the applications to be allowed. If that were to be so, they are ought not to have been any difficulty for the petitioners on the one hand and the first respondent on the other, to work out the affairs between them. It is not known as to how and why the assistance of the District Judge, Rangareddy Court was sought. The parties have not appraised this court of these factual and legal aspects, properly. ( 10 ) WHATEVER may have been the circumstances under which the order dated 12-7-2002 came to be passed, the petitioners cannot be granted any relief as prayed for, in the present application. A receiver was appointed by this Court to undertake a limited exercise of identifying certain suit schedule properties. Strictly speaking, even such a course is impermissible in a suit for partition. The question of appointment of a receiver would arise only for the purpose of undertaking division of the properties, which are included in the schedule. It is rather surprising and strange that the suit schedule comprises of villages together without mentioning either the extent, much less the survey numbers. If the parties have chosen to seek partition of such properties, it is not the duty of the Court to undertake an exercise to ascertain the extent, location or survey numbers of such properties, muchless to recover possession of the same from 3rd parties. Such an exercise is wholly outside the scope of any suit for partition. Be that as it may, this court did not entrust the custody of agricultural lands to the receiver. Even according to the pleadings and the preliminary decree, agricultural lands of about 20,000 acres in the villages referred to in the schedule were not in possession of any parties to the suit. Be that as it may, this court did not entrust the custody of agricultural lands to the receiver. Even according to the pleadings and the preliminary decree, agricultural lands of about 20,000 acres in the villages referred to in the schedule were not in possession of any parties to the suit. Even in a case where the receiver is entrusted with the custody of a definite property, in contemplation of passing of a final decree, necessary directions need to be issued to the receiver to deliver the corresponding items of property to the respective sharers as a sequal to the final decree. As observed earlier, the final decree has not yet been passed in this suit, nor the receiver was entrusted with the custody of any identified extent of agricultural lands. ( 11 ) FOR the foregoing reasons, the application filed by the petitioners is totally misconceived and the same is dismissed. No costs.