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Suit – Partition suit – Decree – Preliminary decree – Mathrukaproperty – Whether on facts, the Division Bench of the High Courtwas right in declaring that the preliminary decree dated 28.06.1963was vitiated by fraud and consequently null and void, especiallywhen there was no pleading and no evidence let in – Held: Thepreliminary decree dated 28.06.1963 could not have determinedthe claim to title made by the legal heirs seeking partition, as againstthird parties – Any finding rendered in the preliminary decree, thatthe properties were Mathruka properties liable to be partitioned,was only incidental to the claim of the legal heirs and such a findingwill not be determinative of their title to property as against thirdparties – The manner in which the judgment and preliminary decreedated 28.06.1963 were sought to be used, abused and misused byparties to the proceedings as well as non-parties who jumped intothe fray by purchasing portions of the preliminary decree andseeking to execute them through Court, defeating the rights of thirdparties, is what has prompted the Division Bench of the High Courtto hold that the preliminary decree is vitiated by fraud – What wasa simple suit for partition; and the incidental finding recorded thatthe properties were Mathurka properties, have been used by partiesand non-parties to assert title to the properties against strangers –This was definitely an abuse of the process of law – The judgmentand preliminary decree dated 28.06.1963, though may not be vitiatedby fraud, are certainly not binding upon third parties like the claimpetitioners as well as the Government who have set up independentclaims and whatever was done in pursuance of the preliminary decreewas an abuse of the process of law.Suit – Decree – Preliminary decree – ‘Paigah’ Estate – Mathrukaproperty – Whether on facts, the concurrent findings of the SingleJudge and the Division Bench of the High Court that Khurshid Jah a ‘Paigah’ grantee, did not leave behind any Mathruka property,goes contrary to the finding recorded in the Judgment andpreliminary decree that has attained finality – Whether the findingrecorded in the judgment and preliminary decree that the lands inquestion are Mathruka property was binding upon third parties –Held: No finding was ever recorded by the Trial Judge in hisjudgment dated 28.06.1963 that the properties left behind byKhurshid Jah were Mathruka properties – Therefore, the contentionas though there was such a finding and that the finding has attainedfinality and that the impugned Judgment goes contrary to such afinding, is wholly misconceived – The Single Judge as well as theDivision Bench (in the impugned judgment) were right in holdingthat the properties were not established to be Mathruka properties –The effect of the order of the Nazim Atiyat was not examined by theTrial Judge – In any case, such an examination had to be doneindependently and not in a partition suit, keeping in view, the 1955Act and various subsequent enactments relating to agricultural landreforms and urban land ceiling – When the entire claim of theappellants that the properties were Mathruka properties inheritableby the legal heirs had failed, the question of executing a decree onthe strength of the plea that the property is a Mathruka propertydoes not arise – The predecessors of the appellants have hadknowledge that faisal patti were recorded in the name of the claimpetitioners in 1978 itself – Even the Receiver was aware of this, asseen from the letter written by the Receiver on 09.04.1980 to theCollector – It is too late in the day for the appellants to question asto how the claim of the claim petitioners stood established.Code of Civil Procedure, 1908 – Order XXI, rr.97- 101 –Enquiry under – Scope of – Held: In an enquiry under Order XXI,rr. 97 to 101, CPC, the Executing Court cannot decide questions oftitle set up by third parties (not claiming through or under the partiesto the suit or their family members), who assert independent title inthemselves – All that can be done in such cases at the stage ofexecution, is to find out prima facie whether the obstructionists /claim petitioners have a bona fide claim to title, independent of therights of the parties to the partition suit – If they are found to havean independent claim to title, then the holder of the decree forpartition cannot be allowed to defeat the rights of third parties inthese proceedings. Suit – Partition suit – Preliminary decree – Effect of – Held:A preliminary decree in a suit for partition merely declares the sharesthat the parties are entitled to in any of the properties included inthe plaint schedule and liable to partition – On the basis of a meredeclaration of the rights that take place under the preliminary decree,the parties cannot trade in, on specific items of properties or specificportions of suit schedule properties – Since there are three stagesin a partition suit, namely (i) passing of a preliminary decree interms of Order XX Rule 18(2); (ii) appointment of a Commissionerand passing of a final decree in terms of Order XXVI Rule 14(3);and (iii) taking possession in execution of such decree under OrderXXI Rule 35, no party to a suit for partition, even by way ofcompromise, can acquire any title to any specific item of propertyor any particular portion of a specific property, if such a compromiseis struck only with a few parties to the suit – Code of Civil Procedure,1908 – Order XX, r.18(2); Order XXVI, r.14(3) and Order XXI, r.35.Suit – Partition suit – Held: In a suit for partition, the CivilCourt cannot go into the question of title, unless the same isincidental to the fundamental premise of the claim. |
