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CASE NO.: Appeal (civil)  1211 of 2008

PETITIONER: M. Purnachander Rao

RESPONDENT: Sri Nawab Mazaharuddin Khan (D) Thr. L.Rs.& Ors

DATE OF JUDGMENT: 11/02/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.  1211  OF 2008 (Arising out of SLP (C) No. 19521 OF 2005)

P. Sathasivam, J. 1)      Leave granted.  2)      This appeal is directed against the order dated  26.04.2005 of the High Court of Andhra Pradesh at Hyderabad  in O.S.A. (SR) No. 1900 of 2005 in and by which the Division  Bench dismissed the said appeal on the ground of limitation.   The appellant preferred O.S.A. before the Division Bench of the  High Court under clause 15 of the Letters Patent against the  order of the Single Judge dated 26.12.2003 in Application No.  1409 of 2003 in C.S. No. 7 of 1958. 3)      According to the appellant, he purchased an extent of 4  acres of agricultural land situated in Sy. No. 46 of Raidurg  Paigah Village, Serilingampally Mandal, R.R. District, Andhra  Pradesh under a registered sale deed dated 11.10.1996.  The  appellant’s title flows from Sri Mala Ramulu and others who  have purchased land under a registered sale deed dated  12.11.1962 from Sri Waliullah Hussaini.  The said Sri  Waliullah Hussaini derives title from his father Late Sri Moulvi  Syed Akbar Hussaini.  Late Sri Moulvi Syed Akbar Hussaini  was given four villages by the then Paigah under the Nizam  Rule somewhere in the beginning of the century.  The said  Late Sri Moulvi Syed Akbar Hussaini, who was the estate  holder, died in the year 1923.  He was survived by his wife,  three sons and four daughters.  After his death, the Court of  Wards (Revenue Department), constituted under the  Hyderabad District Court of Wards Act, took custody of the  property of Late Sri Moulvi Syed Akbar Hussaini.  The Court of  Wards will take custody of the property only if it is a private  property.  The land in Patta Raidurg was also taken over by  the Court of Wards after the death of Sri Moulvi Syed Akbar  Hussaini.  In 1925, there was a compromise between the legal  heirs of late Sri Moulvi Syed Akbar Hussaini.  The properties  located in Yenkapally Maqta and Patta Raidurg were allotted to  Sri Waliullah Hussaini and other sisters and brothers and  Maqta Karimnagar was allotted to other members of the  family.  After the compromise, the other shareholders sold  away their rights in favour of Waliullah Hussaini and two  minors, namely, Sri Syed Akbar Nizamuddin and Sri Syed  Aminuddin Hussaini, under registered sale deeds. 4)      It is the further claim of the appellant that the land in  Raidurg village is a Patta land (private property).  In view of the  fact that Sri Waliullah Hussaini purchased other shareholders’  rights over the property, except Sri Waliullah Hussaini no  other person got any right.  Sri Waliullah Hussaini paid land

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revenue from 1950 onwards and he sold the same in favour of  the appellant’s predecessors in title Sri Mala Ramulu and  others after obtaining permission in the year 1962 as per the  sale deed dated 12.11.1962.  They, in turn, sold the property  in favour of the appellant’s vendors. 5)      It is the further case of the appellant that he is a bona  fide purchaser of land to an extent of 4 acres in Survey No. 46  of village Raidurg Paigah District Ranga Reddy, Andhra  Pradesh for valuable consideration under a registered sale  deed in the year 1996.  The Civil Suit was filed on the original  side jurisdiction of the High Court of Andhra Pradesh in C.S.  No. 7 of 1958.  The suit was filed by the legal heirs who are the  sharers of the property belonging to the estate as "Asmanja  Paigah".  A preliminary decree was passed on 06.4.1959 and  in the list of properties shown in "A" Schedule to the  preliminary decree, Item No. 234 is shown as Raidurg and in  the preliminary decree item Nos. 230 to 254 have been  excluded since the properties were under enquiry with the  Board of Revenue as to the title and claim.  Item No.234  shown as Raidurg is also excluded from the distribution in the  preliminary decree.  The legal representatives in the year  2002, after a lapse of 43 years, filed applications bearing Nos.  1144 to 1147 of 2002 in C.S. No.7 of 1958 claiming (1)  recognition of the Assignments in favour of respondent Nos. 21  to 40; (2) implead the respondents (assignees) as respondents;  (3) direct the Collector, R.D.O., M.R.O., to mutate the names of  the Assignees in the Revenue Records pertaining to Survey  Nos. 37, 39 to 43 and 45 to 49 in all admeasuring 143 acres  11 guntas of land situated in Raidurg Village, Serilingampally  Mandal, R.R. District and (4) direct the District Judge, Ranga  Reddy to deliver possession of the above land to the Assignees.   Without any enquiry, the learned single Judge, by order dated  09.10.2002, contrary to the provisions of the Civil Procedure  Code and other enactments like the Urban Land Ceiling Act,  Registration and Stamps Act, Hyderabad Land Revenue Act  etc., allowed those applications.  The State Government which  was a party in the preliminary decree dated 06.04.1959 was  not made a party in the abovementioned applications filed in  the year 2002.  Thereafter another application was filed  bearing No. 1409 of 2003 in C.S. No.7 of 1958 for passing final  decree and the same was allowed on 26.12.2003. 6)      The appellant is a stranger to the above proceedings.  By  virtue of the order passed as stated above, the respondents  started interfering with the land purchased by the appellant  and coming to know about the above orders passed by the  High Court and being aggrieved by the orders passed in  Application No. 1409 of 2003, filed an appeal  in OSA (SR) No.  1900 of 2005.  By the impugned order, the Division Bench of  the High Court sustaining the office objection with regard to  the limitation in filing the appeal and finding that there is no  satisfactory explanation, dismissed the appeal.   Questioning  the same, the appellant has filed the present appeal before  this Court. 7)      We have heard Mr. Anoop G. Chaudhary, Ms. June  Chaudhary, learned senior counsel for the appellant and Mr.  Harish N. Salve, Mr. R.F. Nariman, Mr. Arun Jaitely, Mr. L. N.  Rao, learned senior counsel and other learned counsel for the  respondents. 8)      Learned senior counsel appearing for the appellant, after  taking us through the chequered history of the case and by  drawing our attention to the various proceedings submitted  that Item Nos. 230-254 which have been excluded in the  preliminary decree and item No.234 being Raidurg land which  is an excluded property, the action of the respondents in  including the same in the final decree cannot be sustained.  In

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such circumstances, according to him, the appellant is an  aggrieved person and as soon as he came to know about the  various orders including the last one, namely, the final decree,  filed the original side appeal before the Division Bench of the  High Court.  He further contended that the High Court is not  justified in dismissing the appeal on the ground of limitation.   9)      We have perused all the earlier proceedings as well as  documents in respect of the property in question.  It is not in  dispute that the appellant, who purchased 4 acres of land by  way of sale deed dated 11.10.2003 from his vendor, heavily  relied his title to the same from Sri Walliullah Hussaini who  was defendant No.41 in C.S. No. 7 of 1958 on the file of the  High Court.  It is relevant to point out that the appellant  himself placed a memo of compromise which was filed and  recorded in C.S. No. 7 of 1958.  The copy of the decree in C.S.  No.7 of 1958 dated 6.4.1959 which is available on pages 156- 232 in the S.L.P. Paper Book (Part II) filed as additional  document by the appellant in this Court shows that the suit  filed against Sri Waliullah Hussaini was dismissed.  Clause 14  which is available at page 198 of the said paper book reads as  under: "That the plaintiff’s suit against defendants 27 to 49 be and  hereby is dismissed."

It is not in dispute that defendant No.41 is Sri Waliullah  Hussaini from whom the appellant claims title through various  persons.  In view of the same, the claim of the appellant that  the very same property has been shown in the final decree and  allotted to one of the sharers in spite of his possession for  several decades cannot be gone into by the High Court after  passing a final decree even in the year 2003.  Likewise, the  allegation that though the lands in Item No.232-254 in  "Schedule A" to preliminary decree concerning defendants 2- 12 and 14-22 excluded and however shown in the final decree  dated 26.12.2003 which is in violation of the preliminary  decree can not be agitated by filing an appeal before the High  Court.  We are of the view that the proper remedy for the  appellant is to initiate a separate proceeding and the same  cannot be questioned by way of a Letters Patent Appeal before  the High Court who is not a party to the entire proceedings.  In  those circumstances, we refrain from considering various  details projected before us. 10)     In the light of the above discussion, we agree with the  conclusion arrived at by the High Court and dismiss the above  appeal.  However, the appellant is at liberty to initiate separate  proceedings before the appropriate Court to vindicate his  grievance for which we express no opinion.  With the above  observation, the appeal is dismissed.  No costs.