Findings Relating To Title In A Simple Suit For Partition Cannot Bind Third Parties : Supreme Court

The Supreme Court recently upheld the decision of the Telangana High Court, upholding the title of successors of Ryot Cultivators over the “Paigah lands” in Hydernagar, Telangana.

The bench comprising Justices V. Ramasubramanian and Pankaj Mithal dismissed the claim of title raised by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground that the land was a Mathruka property of the late Nawab Khurshid Jah, who was granted a Paigah by the Nizam of Hyderabad.

The Division Bench of the Telangana High Court in 2019 had ruled that the appellants had failed to establish that the land in Hydernagar village is the Mathruka property of Khurshid Jah Paigah, from whom they were claiming title under a preliminary decree passed by the High Court of Hyderabad in 1963.

The said preliminary decree was passed by the Single Judge of the High Court while sitting as a Trial Judge, in a suit for partition between the family members of Kurshid Jah, on the basis of a compromise entered into between some of the parties to the suit. It was the case of the appellants that the court in its preliminary decree for partition had ruled that the lands in Hydernagar are Mathruka property.

The Telangana High Court had, however, held that the land in Hydernagar village was Jagir land, but prior to 1948 pattas were granted to cultivating Ryots. Therefore, the court held that title to the land had passed on to the cultivating Ryots before 1948 itself, who had validly conveyed title to their successors, i.e., the “claim petitioners”/ respondents. The High Court had found that the said land did not vest in the State Government after the Hyderabad Jagir Abolition Regulation, 1358 Fasli came into operation. Thus, the claim petitioners had perfected title over the lands by adverse possession.

While hearing an appeal against the decision of the Division Bench, the top court held that the entire claim of the appellants that the properties were Mathruka properties, which were inheritable by the legal heirs, had failed. Thus, the question of executing a decree on the strength of the plea that the property is a Mathruka property, did not arise, the bench ruled.

The Supreme Court further held that any finding relating to title to a property, recorded in a simple suit for partition, cannot be binding on third parties (para 14). Thus, it held that though the 1963 preliminary decree may not be vitiated by fraud, as held by the Division Bench of the High Court, but it was certainly not binding upon third parties like the Government and the claim petitioners, who have set up independent claims under the provisions of the Jagir Abolition Regulations.

The top court further remarked that the High Court was compelled to hold that the preliminary decree was vitiated by fraud, due to certain circumstances. The Supreme Court said that the way in which a very innocuous suit for partition was converted into a suit on title and the way in which hundreds of final decrees came to be passed solely on the basis of a compromise entered into between few of the parties, demonstrated that the process of law was abused and misused. The court added that the judgment and preliminary decree dated 28.06.1963, and whatever happened subsequent to it, were not in accordance with the scope of enquiry and the procedure to be followed in a suit for partition.

The Apex Court also ruled that 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.

Facts of the Case:

After a preliminary decree for partition was passed by the Trial Judge, the Executing Court passed an order on 29.03.1996 directing the Bailiff of the Court to deliver possession of the land to the decree holder; and thereafter a final decree was passed on 24.04.1998.

Against this, the respondents (obstructionists to the execution) filed claim petitions claiming rights in the suit land independently under the provisions of the Jagir Abolition Regulations. In 2004, while adjudicating the claim petitions, the Single Judge of the Telangana High Court had ruled that Khurshid Jah did not leave behind any Mathruka property. The same was upheld by the Division bench, who held that the preliminary decree dated 28.06.1963 as regards the suit lands in Hydernagar village, was vitiated by fraud and consequently, null and void.

The Division bench had also concluded that the claim petitioners/respondents, who claimed to have become the pattadars and the owners of individual plots in the Hydernagar Village, had established their right, title and interest in the said properties. The respondents claimed that their predecessors were the original cultivators of the land in Survey No.172 of Hydernagar village. They claimed that they became pattadars for the land under their cultivation by operation of law, namely Rules 2 and 3 of the ‘Rules Relating to Grant of Pattadari Rights in Non-Khalsa Villages’.

The judgment of the Division Bench was challenged by the appellants before the Supreme Court.

Decision of the Supreme Court:

Allegations Of Fraud Require Special Pleadings In Terms Of Order VI, Rule 4 CPC:

The Apex Court observed that the judgment of the Division Bench of the High Court arose out of a challenge to the judgment of the Single Judge, dated 26.10.2004. It noted that fraud was not one of the issues framed by the Single Judge, nor was there any finding recorded by the Single Judge about fraud. But the Division Bench read such a finding into the order of the Single Judge, the court observed.

While noting that there were no pleadings made to the effect that the preliminary decree was vitiated by fraud, the court remarked that allegations of fraud require special pleadings in terms of Order VI, Rule 4 of the Code of Civil Procedure, 1908 (CPC).

While noting that none of the parties to the preliminary decree had challenged the same on the ground that it was vitiated by fraud, the Supreme Court said, “Though persons obstructing execution and making claims in terms of Order XXI, Rules 97 to 101 CPC are also entitled to attack the decree on the ground of fraud, such claim petitioners (respondents herein) are obliged to make pleadings as to how fraud is borne out by the records.”

In A Simple Suit For Partition, Parties Cannot Assert Title Against Strangers:

The court added that in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. “The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit,” the court said.

To this, the counsel for the decree-holders/ appellants argued that the suit was not just a suit for partition simpliciter, but a suit for declaration that the properties are Mathruka properties of late Nawab Khurshid Jah.

Referring to the original suit from which the 1963 preliminary decree originated, the court noted that the said suit was instituted in the year 1955-56, by one Dildar-Un-Nissa Begum, who was one of the lineal descendants of Khurshid Jah. The court concluded that the said suit was not a suit for declaration of title to any property, but was only a suit for partition. “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,” the court held.

The bench thus concluded, “Therefore, we are of the view that 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.”

The top court found that the issues framed for trial in the said suit for partition, as found in the judgment and preliminary decree, revolved only around 10 broad points, both of fact and of law. However, none of the said points related to the assertion of the claim of third parties (except the Government) to title to the properties, the court said.

“Therefore, the manner in which the judgment and preliminary decree dated 28.06.1963 were sought to be used, abused and misused by parties to the proceedings as well as non-parties who jumped into the fray by purchasing portions of the preliminary decree and seeking to execute them through Court, defeating the rights of third parties, is what has prompted the Division Bench of the High Court to hold that the preliminary decree is vitiated by fraud,” the Apex Court observed.

The court added that it was a simple suit for partition and the incidental finding recorded that the properties were Mathurka properties, have been used by parties and non-parties to assert title to the properties against strangers. The same was definitely an abuse of the process of law, the court said.

Noting that the claim petitioners (respondents herein) were claiming rights independently under the provisions of the Jagir Abolition Regulations, the court held that though the judgment and preliminary decree dated 28.06.1963 may not be vitiated by fraud, but they are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims.

“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,” the court said.

No Finding By Trial Judge That Properties Left Behind By Khurshid Jah Were Mathruka Properties:

Further, the Supreme Court, after perusing the judgment dated 28.06.1963, concluded that no finding was ever recorded by the Trial Judge that the properties left behind by Khurshid Jah were Mathruka properties.

“It must be remembered that the entire basis of the claim of the appellants is that as per the preliminary decree these properties were Mathruka properties. But the same is not borne out by the findings recorded by the Trial Judge in 27 pages of his judgment dated 28.06.1963 on Issue Nos. 7(a) and 7(b),” the court said.

While claiming that the suit properties were Mathruka properties, the appellants placed reliance on the orders passed by the Nazim Atiyat Court on 11.09.1959 and on 30.10.1968. They relied upon the finding recorded by the Nazim Atiyat Court that the lands in Hafeezpet and Hydernagar was Inam-al-Tamgha.

The court, however, took note that the order of the Nazim Atiyat was not before the Trial Judge, who did not record a finding that the land was Inam-al-Tamgha. Thus, the Trial Court could not consider whether the same stood abolished after the advent of the Hyderabad Abolition of Inams Act, 1955, the court observed.

The court, therefore, upheld the finding of the High Court that the properties were not established to be Mathruka properties.

“Therefore, we hold on Issue Nos.(ii) and (iii) 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,” the Supreme Court said.

Title Over Land Derived from Ryot Cultivators Stands Established:

The bench further dismissed the contention raised by the appellants/ decree holders that the claim petitioners/respondents could not produce a single scrap of paper to show how they derived title to the portions of land in Survey No.172 of Hydernagar.

“Paragraph 58 of the order of the learned Single Judge dated 26.10.2004, a portion of which is extracted in the impugned judgment of the Division Bench, states that these claim petitioners had filed originals or certified copies of the pattas granted in favour of their predecessors-in-title,” the court said, adding that the High Court had concluded that the possession of the claimants had become adverse to the appellants.

“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 court ruled.

The court thus held that the claim of the claim petitioners over the lands stood established. The bench thus dismissed the appeals.

Case Title: M/s Trinity Infraventures Ltd. & Ors. vs M.S. Murthy & Ors.

Citation : 2023 LiveLaw (SC) 488

Hyderabad Jagir Abolition Regulation, 1358; Order VI Rule 4, Order XXI Rules 97 to 101 of the Code of Civil Procedure, 1908 (CPC): The Supreme Court has upheld the decision of the Telangana High Court, upholding the title of successors of Ryot Cultivators over the Paigah lands in Hydernagar, Telangana, who had obtained title to the said lands from their predecessors. The court dismissed the claim of title raised by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground that it was a Mathruka property of the late Nawab Khurshid Jah, who was granted a Paigah by the Nizam of Hyderabad.

The Apex Court further ruled that 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.

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