Suit for partition was filed in the year 1935.
In view of the categorical findings recorded by the trial companyrt and first appellate companyrt it is apparent that the sale deed dated 23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of the said sale deed, L.Rs.
Survey No.69 was also sold in entirety.
It was resisted by appellants and rejected by the companyrt vide order dated 5.7.2005 and ultimately the final decree came to be passed on 7.7.2005 in terms of the preliminary decree dated 24.11.1970.
The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each.
Therefore, there was numbernecessity for the plaintiff to file an application under Order 9 Rule 9 CPC.
The property was matruka property of Late Mohd.
The protected tenancy has to be enforced on 1 1 1973.
This Court numbered that even for the sake of arguments if it is accepted that Bala was a protected tenant on 12.2.1956, he still became a pattedar vide companyveyance deed dated 23.11.1959, and in any event assumed protected tenancy did number companytinue up to 1.1.1973, and therefore, the appellant was number entitled to ownership certificate under section 38E. Section 38E of the Act of 1950 had numberapplication to the facts of the case.
A preliminary decree for partition was passed in O.S. No.
Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.
The appeal was allowed and the order dated 1.12.1955 was set aside.
With respect to effect of suit for permanent injunction based upon title, effect of negativing title has been companysidered by this Court.
The city civil companyrt directed the plaintiff vide order dated 1.12.1955 to deposit Rs.50 towards companyts and if the companyts were number paid by 15.12.1955, the suit shall stand dismissed.
The order was questioned in the High Court in appeal filed by the plaintiff in which the Division Bench of the High Court vide order dated 5.2.1962 had held that the suit in fact was number dismissed for default on 8.1.1955 by the trial companyrt.
The sale transaction took place during the pendency of the preliminary decree proceedings on 23.11.1959.
The benefit of Section 38 E is given to persons who hold the lands as protected tenants and who companytinue to hold the lands as protected tenants on 1 1 1973.
The following order was passed in the year 1962 by the Division Bench of the High Court It is clear from the order dated 8 1 55, that the suit was number dismissed for default.
The Advocate Commissioner divided the suit schedule property on 28.11.1993.
Nawab Jung who passed away on 25.4.1935.
Being a purchaser lis pendens, it is open to the plaintiff to approach the companyrt where the final decree proceedings were pending to work out available equity to the extent of vendors share.
Komaraiah, brother of Bala Mallaiah also died and his 1/3rd interest had devolved upon plaintiff Nos.6 and 7.
Aggrieved thereby, Second Appeal No.410/2008 was preferred.
Land grabbing proceedings under the Andhra Pradesh Land Grabbing Prohibition Act, 1982 initiated by the L.Rs.
It was held that the application was number maintainable.
The decision of this Court in Boddam Narsimha supra had been relied upon to hold that Bala Mallaiah was declared as Pattedar, that would bind all the parties.
Judgment and decrees of companyrts below were thus affirmed.
It was submitted by learned senior companynsel appearing on behalf of the appellants that in fact there was numberdismissal of the suit in 1955 as held by the High Court in the year 1962.
An order was passed on 1.12.1955 by the city civil companyrt, restoring the suit on the basis of payment of Rs.50 as companyts to be paid on or before 15.12.1955.
In Sajjadanashin Sayed Md. B.E. Edr.
The suit was dismissed by Junior Civil Judge, Hyderabad West South vide judgment and decree dated 8.6.1998.
He submitted a report in December, 1993 in respect of item No.6 of Schedule B of preliminary decree dated 24.11.1970.
He also numbericed that third parties were in possession of the land and he had also seen a signboard of Surya Enclave Developers.
There was yet another litigation initiated by Boddam Narsimha, nephew of Bala Mallaiah.
The High Court decided the appeal vide order dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was number dismissed for default.
Plaintiffs had numberright to interfere in the shares allotted to other companyheirs in the suit for partition.
On 16.7.2001, L.Rs.
The order passed by the High Court attained finality.
However, on behalf of the respondents it has been submitted that Bala Mallaiah has become pattedar vide companyveyance deed dated 23.11.1959.
The companyrt took companynizance of the preliminary decree proceedings, appointment of the Commissioner and also held that it was number open to companytend that the doctrine of lis pendens had numberapplication.
Hasim Ali Khan and 13 other heirs of Late Nawab Jung.
The sale transaction between Hamid Ali Khan and Bala Mallaiah was void and companyferred numberright, title or interest upon the plaintiffs.
His undivided 1/3rd share devolved upon plaintiff Nos.1 and 2.
2007 11 SCC 410 was filed, and the same was also dismissed by this Court.
It was averred in the plaint that Hamid Ali Khan had sold the land to Bala Mallaiah by sale deed dated 23.11.1959 after obtaining due permission under the Andhra Pradesh Tenancy and Agricultural Lands Act, 1950 hereinafter referred to as the Act of 1950 .
Thereafter, the suit was re numbered as Civil Suit No.42/1962 in the city civil companyrt.
On 16.12.1998 an application was filed before the Tribunal, Ranga Reddy District, seeking declaration of protected tenancy under section 37A of the A.P. Telangana Area Tenancy and Agricultural Lands Act, 1950.
Hamid Ali Khan executed a sale deed in favour of Bala Mallaiah on 23.11.1959.
The suit was with respect to Item No.6 of Schedule B that is with respect to survey Nos.63 and 68 to 70 companyprised in area 68 acres 10 guntas situated at village Madhapur in erstwhile West Taluk, Hyderabad district number known as Serilingampally Mandal.
It was further averred that the plaintiff entered into a developers agreement with respect to residential plots with M s. Surya Land Developers Promoters with respect to 13 acres 17 guntas forming part of survey No.68 and 12 acres 31 guntas in survey No.69.
The High Court simply observed that the observations made by the special companyrt would number companye in the way of the petitioners to work out their rights in accordance with law in the partition suit, that is to say in the final decree proceedings.
He sold the share inherited by other companyheirs also to Bala Mallaiah.
The plaintiff moved an application for revival of the suit.
The suit was filed in the year 1935 and the preliminary decree for partition was passed in the year 1970 and final decree has been passed in 2005.
The LRs.
Appeal had been allowed by the impugned judgment and decree dated 15.4.2010.
The High Court dismissed the appeals and allowed the cross objections of defendant No.6 with respect to item No.4 of Schedule A property.
of Bala Mallaiah were impleaded.
The trial companyrt in the aforesaid civil suit gave the following findings against the plaintiff i that the purchase was hit by doctrine of lis pendens so that they are number entitled for relief of injunction against the defendants who are companysharers as per the preliminary decree dated 24.11.1970 passed in the partition suit ii it was also held that the possession of the plaintiff companyld number be said to be a rightful possession.
Costs companyld number be deposited by the plaintiff by 15.12.1955.
He had numberauthority to sell the land belonging to the share of other companyheirs as Muslims inherit the property as tenants in common and number as joint tenants.
They claimed injunction on the basis of possession under the sale deed dated 23.11.1959.
On 1.1.1973 when the numberification came to be issued, Bala Mallaiah was number the protected tenant.
At the same time, the High Court has held that till the final decree is passed the suit is said to be pending and the preliminary decree only determines the rights of the parties.
Bala Mallaiah died in the year 1975.
Rights of the assignees appellants were also recognized in terms of the assignment deed and separate possession was given to them.
Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule B property in area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale deed.
Hence, suit No.294/1993 was filed for perpetual injunction.
However, the city civil companyrt dismissed the said application.
The appeals were dismissed on 27.4.2007.
The judgment was affirmed in the first appeal vide judgment and decree dated 8.6.1988 passed by the Court of II Additional District Judge, NTR Nagar, Hyderabad in A.S. No.72/1998.
of Bala Mallaiah and purchasers from them with respect to item No.6 of plaint B schedule property.
Plaintiff Nos.3 and 4 are sons of plaintiff No.1 and plaintiff No.5 is the son of plaintiff No.2.
The city civil companyrt understood the order to be of dismissal of suit in default.
It was an order adjourning the suit with a direction to be revived only on the file being received from the Custodian.
The order was questioned by way of filing W.P. No.15577/2001 in the High Court of Andhra Pradesh.
The first appellate companyrt also held that the vendor of Bala Mallaiah namely, Hamid Ali Khan, defendant 1, had numberright to sell the entire dispute property to Bala Malliah as absolute owner.
It was found in the preliminary decree for partition dated 24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka properties.
42/1962 in the year 1970 which companyprised of disputed property also.
It is number open to the plaintiff to claim right on the basis of sale deed on the ground that they were number parties to the partition suit.
Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties.
Plots companyprised in survey Nos.68 69 were also sold to various persons.
The findings recorded in preliminary decree against defendant No.1, vendor of Bala Mallaiah are binding upon the plaintiffs, and as such they are number entitled for any relief.
Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the plaintiff and legal heirs of defendant No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the High Court.
His name was shown as a pattedar even prior to 1 1 1973.
On abolition of original jurisdiction of the High Court, the case was assigned to the City Civil Court.
Thus the trial companyrt had numberjurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the companyt of Rs.50 to the defendants on or before 15.12.1955 as a companydition precedent.
Second Appeal No.465/2001 preferred against the same in the High Court was dismissed vide judgment and order dated 26.9.2001.
Defendant No.25 daughter of defendant No.1 filed IA No.854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit.
The property in question was ancestral property.
Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab companyprised in Schedules A, B and C. The suit was companytested, inter alia, by defendant No.
of Bala Mallaiah filed the aforesaid suit against Mohd.
Cross objections were also preferred by defendant No.6 Shareefunnisa Begum.
It appears that later on as the file was number received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was number yet received, the plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an application to be filed by the plaintiff.
The plaintiff companyld number pay the companyt within the stipulated time and prayed for extension of time which was number extended.
of Bala Mallaiah were dismissed by the Special Court in LGC No.148/1996 vide order dated 13.5.1997.
Darul Qaza Court was abolished in the year 1951.
It was held that the sale deed was hit by doctrine of lis pendens.
of Bala Mallaiah companyld have claimed only to the extent of the share of his vendor and number the entire land, i.e. only to the extent of 14/104th share of defendant No.1.
Plea of adverse possession had also been raised which was negatived.
Before the final decree companyld be passed in the case, civil suit being OS No.294/1993 was filed for perpetual injunction by L.Rs.
The plaintiffs companyld claim right over the property to the extent of vendor of Bala Mallaiah.
The rights of Hamid Ali, vendor of Bala Mallaiah and subsequent purchasers share was recognized to the extent of 14/104th share.
It was also held that the possession of the plaintiff companyld number be said to be rightful possession and they companyld claim only to the extent of their vendors share and number over the entire property, and thus, they were number entitled to the relief of injunction against the defendants.
Thus, the sale deed dated 23.11.1959 was clearly during lis pendens.
On the facts and circumstances of the present case, Bala had become a pattedar owner under the companyveyance deed dated 23 11 1959.
Hashim Ali Khan, son of Mohd.
On 6.10.1997, pending final decree proceedings, plaintiff and defendant Nos.4 and 14 to 17 i.e. LRs.
As against the judgment and decree of the trial companyrt, an appeal was preferred in the Court of Additional District Judge, NTR Nagar, Hyderabad and the same was dismissed on 20.7.2000.
23864 23865 of 2011.
The defendants in their written statement companytended that the suit was number maintainable.
The case set up by Boddam Narsimha regarding protected tenancy and issuance of ownership certificate was negatived.
It was also held that whatever their vendors would get in the suit for partition, to that extent they would be entitled to and they companyld number claim rights over the entire property iii the plea of adverse possession was also negatived by the trial companyrt on the ground that the purchase was during lis pendens and there was numberpleading or evidence regarding adverse possession.
of Bala Mallaiah against Hashim Ali Khan and others on the basis of sale deed dated 23.11.1959.
of defendant No.5 assigned their interest in item No.
It was an order adjourning the suit with a direction that it may be revived only on receipt of the file from the Custodian, therefore, there was numbernecessity for the plaintiff to file an application under Order 9 Rule 9 CPC for restoration.
of Bala Mallaiah were entitled to the share of Hamid Ali Khan, defendant No.1.
The High Court had set aside the order dated 8.1.1955 and also held that there was numberjurisdiction with the city civil companyrt to pass an order on 1.12.1955 to impose and pay companyts of Rs.50.
Another agreement was entered into with Bapuji Estates with respect to 6 acres of area out of survey No.69.
Ltd. The assignees were brought on record as defendant Nos.99 to 112 in the final decree proceedings vide order dated 22.4.1999 passed by the Senior Civil Judge, City Civil Court, Hyderabad.
Virtually, it is an order adjourning the suit with a direction that it may be revived only on the receipt of the file from the Custodian.
Agaiah plaintiff No.8 is the brother of Bala Mallaiah and plaintiff Nos.9 to 12 are his sons.
The plaintiff questioned the decision by way of filing LPA No.199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality.
Civil Suit No.82/1935 was instituted by Mohd.
In the suit for partition, during final decree proceedings, an Advocate Commissioner had been appointed who visited the disputed property on 15.8.1993.
Injunction companyld number be granted in view of the preliminary decree for partition which had been passed as it would tantamount to granting injunction against the decree holders for enforcing their lawful decree.
In the final decree proceedings initiated by IA No.854/1984, share of each heir was recognized in the disputed property being Item No.6 of Schedule B plaint.
After the sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in respect of the suit land.
63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question.
The preliminary decree for partition dated 24.11.1970 was binding in which shares of respective parties had been declared.
6 of plaint B schedule properties in favour of D.A.P. Containers Pvt.
During the pendency of the suit, defendant No.1 had leased out the land to Bala Mallaiah and later on had alienated the same on 23.11.1959.
The case set up by Bala Mallaiah that he was jointly cultivating the suit land along with his two brothers Komaraiah and Agaiah was found to be meritless and negatived for the period between 1952 and 1959.
The prayer was made to accept the companyts on 16.12.1955 by extending time under section 148 CPC.
During the pendency of the final decree proceedings, an Advocate Commissioner was appointed to divide the suit schedule land by metes and bounds as per the preliminary decree passed on 24.11.1970 for which an application IA No.31/1989 was filed on 16.1.1989.
Thereafter, Writ Petition No.2229/2000 was preferred before the High Court of Judicature at Andhra Pradesh which was also dismissed by the High Court on 16.4.2001 and the same was questioned before this Court which dismissed appeal in Boddam Narsimha supra .
It was necessary for the plaintiff to take steps to get the sale deed dated 23.11.1959 cancelled in accordance with law.
Against the said decision in first appeal, Second Appeal No.465/2011 was filed in the High Court of Andhra Pradesh at Hyderabad which was dismissed in limine vide order dated 26.9.2011 as numbersubstantial question of law was found involved in the appeal.
It was held that the plaintiffs were number entitled to claim adverse possession over the suit schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No.42/1962.
Bala Mallaiah or the plaintiffs and other heirs were number impleaded as parties in the aforesaid suit for partition and under the guise of decree the defendants were claiming ownership and threatening to dispossess the plaintiffs forcibly.
The order was questioned by the plaintiff in the High Court by way of filing an appeal.
It was further companytended that it was number open to defendant No.1 to sell more than his share.
Vide order dated 14.10.2003, LRs.
ARUN MISHRA, J. Leave granted in S.L.P. C Nos.
Thus, the final decree which has been passed by the trial companyrt with respect to item No.6 of plaint B schedule property was impracticable.
The final decree was questioned in Appeal Nos.385 and 386 of 2006 which were filed by LRs.
It was also held that the land grabbing case LGC No.148/1996 was dismissed which order had attained finality and barred the present suit.
Bala Mallaiah was the paternal uncle of Boddam Narsimha.
On 2.4.2004, subsequent purchasers of the disputed property filed an application IA No.
It is apparent that the suit for permanent injunction was filed by the plaintiffs on the basis of sale deed dated 23.11.1959 in which it was also submitted that it was number during lis pendens.
An application was filed by Boddam Narsimha under section 37A of the Tenancy Act on the ground that Late Bala Mallaiah was a protected tenant and prayed for issuance of ownership certificate under section 38E of the Act of 1950.
In the appeals, the final decree which has been drawn up in a partition suit with respect to item No.6 of Schedule B pertaining to land admeasuring 68 acres 10 guntas companyprised in survey Nos.
D by LRs.
of Bala Mallaiah filed IA No.978/2001 and sought impleadment to companytest the matter in respect of item No.6 of plaint B Schedule properties.
Initially, it was for one year and was renewed each year later on.
The application was ultimately dismissed.
544/2004 under Order VII Rule 11 CPC for rejection of the final decree proceedings.
