Can't Include 'Marina Beach' Or 'India Gate' In Partition Suit; Executing Courts Not To Decide Questions Of Title By 3rd Parties Asserting Independent Title- SC
A Supreme Court Bench of Justice V Ramasubramanian and Justice Pankaj Mithal has held that 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.
The Court further illustrated that "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".
Senior Counsel Gopal Sankarnarayanan appeared for the appellants, Senior Counsel B Adinarayana Rao, Chander Uday Singh, Ranjit Kumar and Santosh Krishnan appeared for the claim petitioners, Senior Counsel CS Vaidyanathan appeared for the State of Telangana, Senior Counsel VVS Rao, Hemendranath Reddy and KS Murthy appeared for the third parties, and Senior Counsel Dushyant Dave appeared for an Asset Reconstruction Company which had filed an application for intervention.
In this case, the Supreme Court was hearing a land dispute case, which went back over 50 years, and involved several parties. The issues before the Court were:
(i) Whether the Division Bench of the High Court was right in declaring that the preliminary decree dated 28.06.1963 was vitiated by fraud and consequently null and void, especially when there was no pleading and no evidence let in?
(ii) Whether the concurrent findings of the Single Judge and the Division Bench of the High Court that Khurshid Jah did not leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree that has attained finality?
(iii) Whether the finding recorded in the judgment and preliminary decree that the lands in Hydernagar are Mathruka property is binding upon third parties?
(iv) What is the scope of the enquiry under Order XXI Rules 97- 101, CPC ?
(v) Whether the claims of the claim petitioners stood established? and
(vi) Whether the State of Telangana has any legitimate claim and whether any such claim would still survive after a series of setbacks to the State Government in the Court room?
On undertaking a detailed analysis of Issue (i) and Issue (iv), the Apex Court said that "we hold on Issue No. (i) that 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. We also hold on Issue No. (iv) that 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."
Clarifying its stance, the Court further observed that "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."
Subsequently, the Court answered Issue (ii) and Issue (iii) by holding that "... 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."
Analysing Issue (v), the Court observed that "The report of the Receiver-cum-Commissioner in this regard and the order passed thereon by the Court dated 20.01.1984 for handing over possession, is shocking, in the light of the fact that the Receiver himself recorded in his letter dated 09.04.1980 that faisal patti stood in the name of the claim petitioners. Therefore, it is too late in the day for the appellants to question as to how the claim of the claim petitioners stood established. We accordingly answer this issue No. (v) in favour of the claim petitioners."
Finally, the Court answered Issue (vi) by holding that "the finding recorded in paragraph 244 and the conclusion reached in paragraph 414(d) of the impugned judgment, is not binding on the State Government."
The parties were directed to bear their respective costs.
Cause Title: M/s Trinity Infraventures Ltd. & Ors. Etc. vs MS Murthy & Ors. Etc.
