Or.1 rule 10 C.P.C - compromise partition preliminary decree - a third party whose properties are involved can implead in the case even after passing of preliminary decree , can also file an appeal against the preliminary /final decree , he need not wait till the stage of Or.21 ,rule 97 of C.P.C. = Syed Mujtaba Alli, S/o. Sri Syed Mohsin Ali.... Petitioner/Pro. Respondent No. D2 Late Nawab Mazharuddin Khan,S/o.Late Nawab Moinuddowla Bahadur(Defendant No.2 in CS.No.7 of 1958) died per L.Rs.Nawab Mohd. Moinuddin Khan,S/o.Late Nawab Mazharuddin Khan and others...Respondents = published in judis.nic.in/judis_andhra/filename=10633

 Or.1 rule 10 C.P.C - compromise partition preliminary decree - a third party whose properties are involved can implead in the case even after passing of preliminary decree , can also file an appeal against the preliminary /final decree , he need not wait till  the stage of Or.21 ,rule 97 of C.P.C. = 
a suit for partition and separate possession of the
Matruka properties of Paigah Asmanjahi filed by Smt. Sultan Jahan Begum, 
D/o.Moinuddowla Bahadur against Nawab Zahir Yar Jung Bahadur and others. 
 It was  
initially filed before the City Civil Court at Hyderabad but was later
transferred to the High Court.
3. The matter was ultimately compromised and IA.No.126 of 1958 was filed by the
parties under Order XXIII Rule 3 CPC to pass a decree in terms of the
compromise.  On 06.04.1959, a preliminary compromise decree was passed.   
4. In this application, we are concerned with Item No.236 of 'A' schedule to the
said preliminary decree, i.e., Somajiguda Maktha.
5. Clause 4(g) of the preliminary decree provided as under :
"for the purpose of effecting the distribution of the properties among the
persons entitled thereto, the Commissioner receivers shall have powers to sell
the said properties by public auction and exercise all powers necessary for
effecting the division of the same between among defendants Nos.2 to 12 and 14
to 22 each son getting 2/33rds and each daughter getting 1/33rds share in the
properties mentioned in schedule 'A' except items 230 to 254 of this schedule
and the items of properties allotted to the plaintiff.  Defendants Nos.2 to 22
will get their share, namely each son getting 2/35 and each daughter getting
1/35 from the arrears of income, future income, compensation or commutation or
sale proceeds of the items 230 to 254 of Schedule 'A' detailed under the head of
"Makhtas" in case the same are restored or released in favour of Paigah Asman
Jahi." =

(1)     Whether as a matter of law, a party can be impleaded after passing of a
preliminary decree in a partition suit and before passing of final decree ?
(2)     Whether the applicant is entitled to be impleaded in the Appln.No.455 of
2009 filed by the respondents for passing of final decree in respect of survey
Nos.1 to 40 of Somajiguda Maktha (Item Nos.236 of Schedule 'A') to the
preliminary decree in CS.No.7 of 1958 ?
(3)     Whether it is necessary, in the facts and circumstances of the case, to
implead the District Collector, Hyderabad or the Principal Secretary, Revenue
Department, Government of Andhra Pradesh, the Jagir Administrator, etc. as
parties in Appln.No.455 of 2009 ?

In Ramader Appala Narasinga Rao (8 supra), a Division Bench of this Court
held that the Executive Officer of a charitable institution is entitled to be
impleaded, after passing of an ex-parte preliminary decree, in a suit filed by a
daughter of the executor of the Trust creating the said institution, against him
and other trustees, to        
 (i) declare the Trust deed as a sham and nominal
transaction and not binding on her and 
(ii) for specific performance of an
agreement allegedly executed in her favour by the executor of the Trust agreeing
to give her a half share in the 'A' schedule properties therein. 
 It held that
as no final decree was passed when the application for impleadment was made by 
the Executive Officer, the suit is still pending, and hence a petition under
Order I Rule 10 CPC is maintainable.  
It further held that he can also maintain
an application under Section 151 CPC to set aside the ex-parte decree. 
 It
observed that extensive and valuable property belonging to a public trust were
involved in the suit and there was obviously collusion between the plaintiff and
the trustees. This decision completely supports the applicant and is also
binding on me. =
whether the Decree Holders would be entitled to all
public roads, lanes, parks, bridges, ditches, rivers, streams, tanks, ponds,
canals, lakes etc., which would otherwise vest in the Government. 

(a)     Whether there can be schedules appended to a compromise decree without   
such schedule being part of the plaint in CS.No.7 of 1958 ?
(b)     When appeal under the Andhra Pradesh (Telangana Area) Atiyat Enquiries  
Act, 1952, was rejected in respect of Somajiguda Maktha by the Board of Revenue
as stated in the Muntakhab No.3 dt.04.02.1983 of the Commissioner of Survey and 
Settlement (Atiyat Branch) Government of Andhra Pradesh, Hyderabad and the said  
Maktha was not restored or released to the Paigah Asman Jahi, whether an 
application for passing of final decree would be maintainable ?
(c)     Whether a petition for passing of final decree could be filed by the
applicants in Appln.No.455 of 2009, without satisfying the Court that applicants
had succeeded before the Board of Revenue ? 
(d)     In the light of the observations of the Division Bench in OSA.No.30 of
2003 and batch dt.10.06.2003 that no details of property such as survey numbers,
extents or boundaries are mentioned in the plaint or in the preliminary decree,
and several villages/Makthas are included wherein even public properties would
be covered, whether apart from the applicant, officials such as the District
Collector, Hyderabad, Principal Secretary, Revenue Department, Government of
Andhra Pradesh, etc. are required to be impleaded to protect public interest?
29. I have noted the submissions of the respective parties.
 This
observation was made after noticing that the Decree Holders are claiming
villages after villages in Ranga Reddy District and localities after localities
of twin cities of Hyderabad and Secunderabad. Thus, apart from those of the
State, there could be thousands of private properties in the villages which are
included by the Decree Holders in the schedule to the preliminary decree.
Sy.No.1 to 40 of Somajiguda in respect of which the application for final decree
is filed, might conceivable include Government properties, public roads, many
private buildings, (residential or commercial), lanes, parks, bridges, ditches
etc.
68. Therefore the larger public interest justifies the suo moto impleadment
under Or.1 R.10(2) CPC of the District Collector, Hyderabad, the Principal
Secretary, Revenue Department, Government of Andhra Pradesh, the Jagir  
Administrator, Govt. of Andhra Pradesh, Hyderabad as party respondents to
Appln.455 of 2009 apart from the applicant in Appln.no.210 of 2010. Therefore
they are also impleaded as respondents in Appln.No.455 of 2009. They shall file
their affidavits and properly assist the Court in arriving at a just and proper
conclusion. Issue no.3 is therefore answered accordingly.
69. For all the aforesaid reasons, Appln.No.210 of 2010 is allowed.

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          

Application No.210 of 2010 and batch

12-12-2013

Syed Mujtaba Alli, S/o. Sri Syed Mohsin Ali.... Petitioner/Pro. Respondent No.

D2 Late Nawab Mazharuddin Khan,S/o.Late Nawab Moinuddowla Bahadur(Defendant      
No.2 in CS.No.7 of 1958) died per L.Rs.Nawab Mohd. Moinuddin Khan,S/o.Late Nawab  
Mazharuddin Khan and others...Respondents  

Counsel for the Petitioners:Sri V. Venkataramana

Counsel for the Respondents:GP for Revenue

                             Sri MA. Bari
                          Sri S. Malla Rao
                          Sri MVS Suresh Kumar
                          Sri Mohd. Osman Shaheed  
                          Sri V. Vijaya Rama Raj
<GIST:

>HEAD NOTE:  

?Cases referred:

1.      (2009) 9 SCC 689
2.      (2008) 12 SCC 433
3.      AIR 2007 AP 46
4.      2012 (1) Decisions Today (AP) 441
5.      (1999) 3 SCC 141
6.      AIR 1976 AP 226
7.      AIR 1964 AP 260
8.      AIR 1976 AP 226 (DB)
9.      AIR 1994 AP 79
10.     (1996) 4 ALD 105
11.     AIR 1924 MADRAS 648  
12.     AIR 2011 SC 234
13.     (2004) 2 SCC 601
14.     AIR 1966 SC 470
15.     (1983) 1 SCC 18
16.     (2007) 10 SCC 719
17.     1999 (2) SCC 577
18.     1992 (2) SCC 524
19.     AIR 1958 SC 886
20.     (2013) 5 SCC 397
21.     2005(3) ALD 4
22.     (1995) 6 SCC 50
23.     (2004)1 SCC 191
24.     (1996) 5 SCC 539
25.     (2012) 7 SCC 738
26.     (1972) 2 SCC 200
27.     (2010)7 SCC 417
28.     AIR 2011 S.C  234
29.     AIR 1967 SC 1470
30.     2011 (9) SCC 788
31.     (2009) 13 SCC 179

IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH            
AT HYDERABAD    


PRESENT  

THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

Application No.210 of 2010 in Application No.455 of 2009 in CS.No.7 of 1958


The Court made the following :  [order follows]

THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

Application No.210 of 2010 in Application No.455 of 2009 in CS.No.7 of 1958

JUDGMENT :  

Application No.210 of 2010 :  
1. This application is filed to implead the applicant herein Syed Mujtaba Ali as
respondent No.266 in Appln.No.455 of 2009 in CS.No.7 of 1958 on the file of this
Court.
BRIEF BACKGROUND HISTORY:      
2. CS.No.7 of 1958 is a suit for partition and separate possession of the
Matruka properties of Paigah Asmanjahi filed by Smt. Sultan Jahan Begum, 
D/o.Moinuddowla Bahadur against Nawab Zahir Yar Jung Bahadur and others.
 It was  
initially filed before the City Civil Court at Hyderabad but was later
transferred to the High Court.
3. The matter was ultimately compromised and IA.No.126 of 1958 was filed by the
parties under Order XXIII Rule 3 CPC to pass a decree in terms of the
compromise.  On 06.04.1959, a preliminary compromise decree was passed.   
4. In this application, we are concerned with Item No.236 of 'A' schedule to the
said preliminary decree, i.e., Somajiguda Maktha.
5. Clause 4(g) of the preliminary decree provided as under :
"for the purpose of effecting the distribution of the properties among the
persons entitled thereto, the Commissioner receivers shall have powers to sell
the said properties by public auction and exercise all powers necessary for
effecting the division of the same between among defendants Nos.2 to 12 and 14
to 22 each son getting 2/33rds and each daughter getting 1/33rds share in the
properties mentioned in schedule 'A' except items 230 to 254 of this schedule
and the items of properties allotted to the plaintiff.  Defendants Nos.2 to 22
will get their share, namely each son getting 2/35 and each daughter getting
1/35 from the arrears of income, future income, compensation or commutation or
sale proceeds of the items 230 to 254 of Schedule 'A' detailed under the head of
"Makhtas" in case the same are restored or released in favour of Paigah Asman
Jahi."
        This was incorporated as the items mentioned in item Nos.230 to 254 were
properties claims in respect of which were pending adjudication before the Board
of Revenue in an appeal against an order passed under the Andhra Pradesh 
(Telangana Area) Atiyat Enquiries Act, 1952.
6.  Appln.No.455 of 2009 has been filed by the legal representatives of
defendant Nos.2, 3, 4, 5, 6, 7, 9, 10, 11, 17, 18 and defendant Nos.19 to 22 for
passing a final decree in respect of item No.236 of Schedule 'A' of the
preliminary decree dt.06.04.1959 in CS.No.7 of 1958 in particular - in respect
of Sy.Nos.1 to 40 of Somajiguda Village, Ameerpet Mandal, Hyderabad District, by
declaring the shareholders as the absolute owners thereof.
7. It is pertinent to note that in the preliminary decree only "Somajiguda" was
mentioned at Item No.236 as a Maktha in Schedule 'A' thereto.  There is no
mention of Sy.Nos. or boundaries in the preliminary decree.
8. Even in Appln.No.455 of 2009, the application seeking passing of final
decree, boundaries or extent of the land in Item No.236 are not given.
APPLN.1456-1458/2000  
9. Appln.No.1456 to 1458 of 2000 were filed on 25.09.2000 by A.P. Policemen
Mutually Aided Co-operative Housing Society Ltd. to implead them in CS.No.7 of
1958; to recognise the assignment deed dt.16.09.2000 in their favour; and to
direct the Mandal Revenue Officer of Somajiguda and Asifnagar and the District
Collector, Ranga Reddy District to mutate their names in respect of the lands
situated in Somajiguda.
10. They were disposed of on 10.10.2000 along with Appln.Nos.1462 to 1464 filed
in respect of other Makthas covered by the preliminary decree as follows :
"The parties to the applications are present in person and their Advocates are
also present.  The Counsel for the first respondent and first respondent present
in the Court stated that they have no objection for allowing the applications.
Hence the applications are allowed."
THE DIVISION BENCH ORDER IN OSA.No.30 and 31/2003, ETC :      
11. The applicant herein Syed Mujtaba Ali  challenged the above order in
Appln.No.1456 of 2000 in OSA.Nos.30 of 2003 and the order in Appln.No.1457 of
2000 in OSA.No.31 of 2003 before a Division Bench of this Court consisting of
Hon'ble Justice B.Sudershan Reddy         (as his lordship then was) and Hon'ble
Justice C.V.Ramulu.  These appeals were heard along with similar appeals by the
Division Bench and a common judgment was passed on 10.06.2003.  
12. The Division Bench noticed that the appellants in the OSAs (including Syed
Mujtaba Ali) did not claim their right, title and interest from any one of the
parties in CS.No.7 of 1958 nor under any assignment deed like that of the
respondents-applicants but had purchased the various extents of land for
valuable consideration from their respective predecessors-in-title in those
villages in respect of which orders impugned therein have been passed; that they
have all purchased under registered sale deeds for valuable consideration and
assert and claim to be in continuous possession and enjoyment of the land after
their purchase from the previous owners; that they cannot be said to be not
aggrieved persons by the orders passed by the single Judge although in the OSAs,
there is no question of declaration of their title; such persons in possession
are sought to be thrown out under the orders passed by the Court without any
notice to any of them; it is not as if the respondents in the appeal are unaware
of the appellants being in possession of their respective lands; in the docket
orders passed in the proceeding sheets in the batch of cases being heard by the
Bench, none of the parties in the applications had been examined, no documents
were marked and orders were obtained by the respondents for inclusion of not any
specified piece of land into the compromise decree in CS.No.7 of 1958, but
villages themselves were included, which in course of time had become an
integral part of Hyderabad city;  details of survey numbers were not mentioned
and localities after localities of the twin cities of Hyderabad and
Secunderabad, and villages after villages in Ranga Reddy District were sought to
be included in the compromise decree.
13. The Division Bench held that on an overall consideration of the material on
record it appeared that the whole exercise of filing the applications resulting
in passing of orders of far reaching consequences is a collusive affair, that
fraud is apparent on the face of the record and the whole thing is engineered by
vested interests.  It expressed shock and surprise as to whether the decree-
holders would be held entitled to all public roads, lanes, parks, bridges,
ditches, rivers, streams, tanks, ponds, canals, lakes which would otherwise vest
in the Government, by just adding through amendment applications to the
compromise decree, villages after villages without specifying the details of the
lands such as Sy.Nos., extents, boundaries in the applications, and without any
evidence whatsoever.  The following important observation was also made by it :
"We have perused the original plaint which is in Urdu language with the
assistance of the official translators.  We have also perused the translated
copy of the plaint in OS.No.130/1/53 on the file of the Chief Judge, City Civil
Court, Hyderabad (renumbered as C.S.No.7 of 1958 in this Court).  Neither in the
body of the plaint nor in the details of the properties, which are mentioned in
the plaint, the name of Miyapur village is not to be found.  ... ... ... In the
plaint, nowhere the details of the properties are mentioned and it is for the
first time the details of the properties and schedules are mentioned in the
memorandum of compromise"          (emphasis supplied)
14. The Bench noticed that the respondents in the OSAs have chosen to get whole
of the lands situated in a particular village into the compromise decree as one
of the items and such an attempt made by them has not been resisted, since there
is none to resist, as both parties were colluding with each other and competing
with each other to play and perpetrate fraud upon the Court.  In the opinion of
the Division Bench, the cases required a thorough probe for which purpose Jagir
Administrator and Secretary, Revenue Department, Government of Andhra Pradesh  
apart from District Collector, Ranga Reddy District and District Collector,
Hyderabad were to be impleaded as inclusion of many localities and villages
situated in the above districts would result in any amount of prejudice,
adversely affecting rights of individuals in possession, and the orders would
virtually come as a bolt from the blue as far as they are concerned.
15. It rejected the submission of the respondents that the appellants could get
their claims adjudicated by filing necessary applications under Order XXI Rule
97 CPC since a preliminary decree had already been passed by this Court in terms
of compromise.
It observed :
   "Even orders have been passed by this Court to accept the report of the
Commissioners/Receivers and accordingly orders have been passed for preparation 
of final decree.  This Court is seized of the whole of the proceedings in either
case whether a final decree has been passed or not.  In the circumstances, it
would be a futile exercise for the appellants herein to go before the District
Judge who is directed to implement the orders passed by this Court.  The
District Judge may not go beyond the directions of this Court and make any
roving enquiry into the claim of the appellants.
Even if such applications are required to be filed under Order 21 Rule 97 CPC,
they have to be filed only in this Court." (emphasis supplied)
16. The Division Bench held that the appellants have locus to file the appeal as
they cannot be said to be not aggrieved persons.  As regards the contention
urged by the respondents that the appellants themselves do not have a proper
subsisting valid title, the Bench observed that it did not propose to express
any opinion whatsoever on that issue. It left open all questions, after setting
aside all the orders passed by the learned single Judge impugned in the batch of
OSAs heard by it, and remitted the matter to the learned single Judge for
disposal in accordance with law, after recording evidence.  It further directed
that each of the appellants in the OSAs would stand impleaded as respondents in
the applications.  Certain other observations were also made as to the conduct
of the decree holders/their assignees.
17. In view of the decision of the Division bench dt.10.06.20103 in OSANos.30
and 31 of 2003, Syed Mujtaba Ali (the applicant in Appln.No.210 of 2010), being
the appellant therein, automatically stood impleaded in Appln.Nos.1456 and 1457
of 2000. The judgement in O.S.A.Nos.30 and 31 of 2003 is binding on me.
18. However, after remand, Appln.No.1456 of 2000 was got dismissed for non-
prosecution on 03.02.2004 by this Court by way of strategy.
FRESH APPLN.455 OF 2009 FILED BY DECREE HOLDERS FOR PASSING FINAL DECREE :                  

19. It is only thereafter that Appln.No.455 of 2009 was filed by some decree
holders and the legal representatives of some deceased decree holders/
respondents in Appln.No.210 0f 2010, to pass a final decree in respect of
Sy.Nos.1 to 40 of Somajiguda (Item No.236 of Schedule 'A' to the preliminary
decree dt.06.04.1959 in CS.No.7 of 1958).
APPLN.201 OF 2010 FILED BY APPLICANT FOR IMPLEADMENT IN APPLN.455 OF 2009 BASED                
ON JUDGMENT IN OSA.30 AND 31/2003 :    

20.  Since the applicant in application No.210 of 2010 was held to be a person
interested by the Division Bench in its order dt.10.06.2003 in OSA.No.30 and 31
of 2003, the counsel for the applicant Syed Mujtaba Ali, Sri M.V.S. Suresh Kumar
contends that he is a necessary party and is entitled to be impleaded in Final
decree Appln.No.455 of 2009 in CS.No.7 of 1958 now filed.  In the alternative,
he also contended that considering the observations by the Division Bench in the
order dt.10.06.2003 in OSAs.30 and 31 of 2003 and batch, the applicant Syed
Mujtaba Ali is also entitled to invoke Order 1 Rule 8A of CPC.

OTHER CONTENTIONS RAISED BY APPLICANT IN APPLN.210 OF 2010 :            
21. Apart from the above submissions of the counsel for the applicant in
Appln.No.210 of 2010, the counsel also submitted that the preliminary decree in
CS.No.7 of 1958 is itself a conditional decree dependent as regards items 230 to
254 of Schedule 'A' on the restoration or release of the said item in favour of
Paigah Asman Jahi [as per Clause 4(g) of the preliminary decree] by the Board of
revenue in the appeal  under the A.P. (Telangana Area) Atiyat enquiries Act,
1952; that Muntakhab No.3 dt.14.02.1983 was issued in respect of Paigah Asman
Jahi by the Commissioner of Surveyor, Settlements and Land Records (Atiyat
Branch), Government of Andhra Pradesh, Hyderabad; in the said Muntakhab, it was
specifically recited that the Board of Revenue in the above appeal has confirmed
only 60 villages shown in Appendix - E as Zaat Jagir villages and 151 1/2
villages shown in Appendix - F as Paigah, ie., Jamiat villages; that Somajiguda
is not one of the villages included in the Appendix E and Appendix F; that the
Muntakhab records that the Board of Revenue had dismissed the appeal in respect
of all other claims of the Paigah Asman Jahi; therefore,in respect of
Somajiguda, the appeal was rejected by the Board of Revenue, the competent
authority under the Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952;
consequently, Somajiguda (Item No.236) was not released or restored to Paigah
Asman Jahi; and therefore, there is no question of passing any final decree in
respect of this item.
22. In addition to the above submissions, and in order to establish his interest
in Item No.236 i.e., Somajiguda Maktha in which a final decree is sought in
respect of survey Nos.1 to 40, the applicant pleaded that an extent of Acs.0.10
gts. in Sy.No.20/4 of Somajiguda Village was transferred to him under a hiba
executed by one Raheemunissa Begum alias Hadeesunnisa Begum, W/o.K.A.Latif on    
30.10.1963, which was confirmed by a document dt.12.01.1964; that he constructed
a house bearing No.6-3-1099/1/7 therein in 1974; that there was a proposal to
notify the land for acquisition under the Land Acquisition Act, 1894 in 1983 and
1987 for Buddha Poornima Project, but the land was de-notified in 1991; that the
predecessors-in-title of applicants 1 and 2, applicant No.12, predecessors-in-
title of applicants 23 to 25, the predecessors-in-title of applicants 36, 37,
applicant No.40, 41, predecessors-in-title of applicants 26 to 32, applicant
Nos.42, 45 and 46 in application No.455 of 2009, had filed LGC.No.76 of 2002
before the Special Court constituted under the A.P. Land Grabbing (Prohibition)
Act, 1982 against him and twenty others to declare them as land grabbers in
respect of land in Sy.Nos.20/4, 23 to 25 of Somajiguda village, Ameerpet Mandal;
that it was dismissed on 05.05.2004; this order has become final and binds the
respondents; therefore, the applicants in Appln.No.455 of 2009 were aware of his
possession and enjoyment but deliberately did not make him a party therein; and
since his interests are vitally affected, he is entitled to be impleaded as a
party respondent in Appln.No.455 of 2009.
23. He also filed Appln.No.330 of 2010 to receive certified copies of the
Muntakhab No.3 dt.14.02.1983, order dt.05.05.2004 in LGC.No.76 of 2002, Gazette
Notification dt.24.12.1983, 22.01.1987, etc. to be marked as exhibits B.1 to
B.20.
THE  RESPONDENT'S  CONTENTIONS :      
24. Sri K.V. Satyanarayana, senior counsel appearing for respondent No.70,
contended that since Appln.No.455 of 2009 is an application filed to pass final
decree, and since the Appln.No.210 of 2010 is filed for impleadment of the
applicant therein in Appln.No.455 of 2009, it is not maintainable. He contended
that after passing of preliminary decree, no application to add a party can be
allowed.  He relied upon the decision of the Supreme Court in Shub Karan Bubna
alias Shub Karan v. Sita Saran Bubna and others1 and M. Purnachander Rao v. Sri
Nawab Mazaharuddin Khan (D) Thr. LRs and others2.
25. Sri Satyanarayana Prasad, Senior Counsel appearing on behalf of Sri V.
Vijayaramaraj, counsel for respondent Nos.8 to 10 (legal representatives of D.4)
contended that the applicant in Appln.No.210 of 2010 has not shown his interest
in the subject property at all and therefore, he is not entitled to impleaded as
a party in Appln.No.455 of 2009.  He relied upon Pannala Renuka v. Kavali
(Rajumouni) Venkataiah3, S.D. Samiulla v. K.L. Narayana4, and Saraswati
Industrial Syndicate Ltd. v. Commissioner of Income Tax, Haryana, Rohtak5.  He
further contended that it would open a pandora's box, as any third party having
independent title would seek to get in and dispute the rights of the parties to
the suit; that this Court is acting as a Civil Court and not dealing with a Writ
proceeding under Article 226 of the Constitution of India where concept of locus
is more liberal; that the application of the applicant is traceable to Order
XXII Rule 10 CPC, but since leave for devolution of interest in the applicant's
favour was not obtained by applicant's vendor, he cannot be impleaded as he is
only seeking to advance a private interest.  He contended that at best the
applicant may be allowed to participate in the proceedings as an intervener and
not as a party, so that he may only assist the Court.
26. Sri Vedula Venkataramana, learned Senior Counsel appearing for respondents
(applicants in Appln.No.455 of 2009) opposed the impleadment of the applicant,
contending that the suit being one for partition, parties such as the applicant,
who do not claim through any of the parties in the suit and who set up
independent title, cannot be allowed to be impleaded, as his title cannot be
gone into in this suit.  He further contended that in any event, such an
application is not maintainable as no party can be impleaded after passing of
final decree.
27. The counsel appearing for respondent No.48 (defendant No.22 in CS.No.7 of
1958) contended that the applicant in Appln.No.210 of 2010 is a stranger to the
lis in CS.No.7 of 1958, that he must establish his right, title and interest in
a separate suit, and he cannot be impleaded in the Appln.No.455 of 2009.  She
further contended that the alleged hiba (a Xerox copy of which is filed at
Pg.305 to 307 in the paper book filed along with Appln.No.210 of 2010) contains
the forged signature of the executant Raheemunissa begum alias Hadeesunnisa
Begum through whom the applicant claims and therefore, he cannot be impleaded.
REPLY OF COUNSEL FOR APPLICANT TO RESPONDENT'S CONTENTIONS :                

28. Sri M.V.S. Suresh Kumar, counsel for the applicant in Appln.No.210 of 2010,
reiterated his submissions in reply and contended that the contentions raised by
the respondents are not correct; that it is permissible to add a party in a
partition suit even after passing of preliminary decree therein provided it is
sought before passing of final decree as held in Ramader Appala Narasinga Rao v.
Chunduru Sarada6.  He further contended that the applicant is also entitled to
invoke Order 1 Rule 8A of CPC and seek to get impleaded in the Appln.No.455 of
2009 because the following questions of law arise for consideration, directly
and substantially in the suit, necessitating in public interest such
impleadment, to enable the Court to present its opinion and take such part in
the proceedings of the suit as the Court may specify :
(a)     Whether there can be schedules appended to a compromise decree without   
such schedule being part of the plaint in CS.No.7 of 1958 ?
(b)     When appeal under the Andhra Pradesh (Telangana Area) Atiyat Enquiries  
Act, 1952, was rejected in respect of Somajiguda Maktha by the Board of Revenue
as stated in the Muntakhab No.3 dt.04.02.1983 of the Commissioner of Survey and 
Settlement (Atiyat Branch) Government of Andhra Pradesh, Hyderabad and the said  
Maktha was not restored or released to the Paigah Asman Jahi, whether an 
application for passing of final decree would be maintainable ?
(c)     Whether a petition for passing of final decree could be filed by the
applicants in Appln.No.455 of 2009, without satisfying the Court that applicants
had succeeded before the Board of Revenue ? 
(d)     In the light of the observations of the Division Bench in OSA.No.30 of
2003 and batch dt.10.06.2003 that no details of property such as survey numbers,
extents or boundaries are mentioned in the plaint or in the preliminary decree,
and several villages/Makthas are included wherein even public properties would
be covered, whether apart from the applicant, officials such as the District
Collector, Hyderabad, Principal Secretary, Revenue Department, Government of
Andhra Pradesh, etc. are required to be impleaded to protect public interest?
29. I have noted the submissions of the respective parties.
THE ISSUES FOR DETERMINATION :      
30. The following issues arise for consideration from the above submissions :
(1)     Whether as a matter of law, a party can be impleaded after passing of a
preliminary decree in a partition suit and before passing of final decree ?
(2)     Whether the applicant is entitled to be impleaded in the Appln.No.455 of
2009 filed by the respondents for passing of final decree in respect of survey
Nos.1 to 40 of Somajiguda Maktha (Item Nos.236 of Schedule 'A') to the
preliminary decree in CS.No.7 of 1958 ?
(3)     Whether it is necessary, in the facts and circumstances of the case, to
implead the District Collector, Hyderabad or the Principal Secretary, Revenue
Department, Government of Andhra Pradesh, the Jagir Administrator, etc. as
parties in Appln.No.455 of 2009 ?

Issue No.1 :
31. Co-owners of property can file a suit for partition. The Civil Procedure
Code contemplates the passing of a preliminary decree in which the Court will
decide (i) who are the parties entitled to a share, (ii) what are the shares,
(iii) what are the joint liabilities on the property and (iv)  what are the
properties to be divided. This presumes that there is a schedule of properties
shown for division.
32. The next stage is the stage when the property will be divided by metes and
bounds allocating distinct parts of the property to each of the co-owners.
33. Now, if at the stage when the final decree proceedings are pending and the
parties are still co-owners, if a third party comes to know that the co-owners
have included in the schedule to the plaint in their suit, an item belonging to
him, can he not intervene at that stage and seek exclusion of his property?; or
should he invariably be asked to come before the court only after the final
decree is passed by way of an application under Or.21 R.97 CPC?; or should he be
compelled to file a civil suit separately to protect his possession and prove
his title ?
34. It is obvious that the third party has no concern whether the claim by the
co-owners against his property is made by these persons as co-owners or by any
one of them to whom this disputed property is allotted, after the final decree
is passed.
35. The following rulings support the contention of the applicant that even
though he is a third party, and not claiming any interest through a party to the
suit C.S.No.7 of 1958, he is entitled to be impleaded even after passing of a
preliminary decree therein, since final decree has not yet been passed :
                Syed Mohiddin (died) and another v. Abdul Rahim and others7, Ramader  
Appala Narasinga Rao v. Chunduru Sarada8, Sriramula Ramachandram v. Sriramula    
Bhoodamma9, Ch.Yashoda Devi v. B.Dayakar Reddy10, Krishna Aiyar v. Subrahmania     
Aiyar11.
36. In Ramader Appala Narasinga Rao (8 supra), a Division Bench of this Court
held that the Executive Officer of a charitable institution is entitled to be
impleaded, after passing of an ex-parte preliminary decree, in a suit filed by a
daughter of the executor of the Trust creating the said institution, against him
and other trustees, to        
 (i) declare the Trust deed as a sham and nominal
transaction and not binding on her and 
(ii) for specific performance of an
agreement allegedly executed in her favour by the executor of the Trust agreeing
to give her a half share in the 'A' schedule properties therein. 
 It held that
as no final decree was passed when the application for impleadment was made by 
the Executive Officer, the suit is still pending, and hence a petition under
Order I Rule 10 CPC is maintainable.  
It further held that he can also maintain
an application under Section 151 CPC to set aside the ex-parte decree. 
 It
observed that extensive and valuable property belonging to a public trust were
involved in the suit and there was obviously collusion between the plaintiff and
the trustees. This decision completely supports the applicant and is also
binding on me.
37. However, the counsel for the respondents placed reliance upon the
observations in para.6 of Shub Karan Bubna (1 supra) that "a partition of a
property can be only among those having a share or interest in it and a person
who does not have a share in such property cannot obviously be a party to a
partition", and contended the applicant, not being a member of the family of
Late Nawab Moinuddowla Bahadur and of Late Asman Jah Bahadur, cannot be    
impleaded in the suit.  I am unable to accept this contention because the
observations therein refer only to who can be a party to a "partition", but
cannot be construed as laying down the law as to who can be a party to a
"partition suit".  Instances of transferees prior to suit, transferees pendente
lite, tenants of properties which are subject matter of the partition suit,
legal representatives of deceased share holders, sometimes even Official
Receiver etc., being impleaded in a partition suit are too numerous to be cited
and it cannot be presumed that the Supreme Court was oblivious of these
instances when it rendered the above judgment.
38. The other judgment relied upon by the respondents M.Purnachandra Rao (2
supra) also has no application. There the application for impleadment was made
by a purchaser of property which was subject matter of C.S.7 of 1958 (Item
No.234) after a final decree was passed in respect of the said item on 26-12-
2003 in I.A.No.1409 of 2003. The Supreme Court held that the appellant before it
being a stranger to the proceedings, he is not entitled to be impleaded and he
can initiate a separate proceeding to establish his right in the property. This
judgment has no application as Appln.No.210 of 2010 has been filed by Syed
Mujtaba Ali to implead him before passing of final decree and not after passing
of final decree in respect of item No.236 of the schedule A to the preliminary
decree.
39. Order I Rule 10(2) CPC permits the Court, at any stage of the proceedings in
the suit, to implead a party, either upon or without the application of either
party in order to enable the Court effectively and completely to adjudicate upon
and settle all the questions involved in the suit or to strike off the name of a
party improperly joined.  Section 2 (2) of CPC defines the term 'decree' and the
explanation appended thereto states :
        "Explanation: - A decree is preliminary when further proceedings have to
be taken before the suit can be completely disposed of.  It is final when such
adjudication completely disposes of the suit.  It may be partly preliminary and
partly final."

40. Section 75 (d) of CPC enables the Court to issue a Commission to make a
partition.  Order XX Rule 18 states :


"Decree in suit for partition of property or separate possession of a share
therein : --

        Where the Court passes a decree for the partition of property or for the
separate possession of a share therein, then, --
(1)     if and in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall declare the rights of the
several parties interested in the property, but shall direct such partition or
separation to be made by the Collector, or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with such declaration and
with the provisions of Section 54.
(2)     if and in so far as such decree relates to any other immovable property or
to movable property, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring
the rights of the several parties interested in the property and giving such
further directions as may be required."

Order XXVI Rules 13 and 14 CPC state :
        "13.    Commission to make partition of immovable property : --
                Where a preliminary decree for partition has been passed, the Court
may, in any case not provided for by Section 54, issue a commission to such
person as it thinks fit to make the partition of separation according to the
rights as declared in such decree.
        14.     Procedure of Commissioner : -
        (1)     The Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directed by the order under
which the commission was issued, and shall allot such shares to the parties, and
may, if authorised thereto by the said order, award sums to be paid for the
purpose of equalizing the value of the shares.
        (2)     The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one person and they  
cannot agree) shall prepare and sign separate reports appointing the share of
each party and distinguishing each share (if so directed by the said order) by
metes and bounds.  Such report or reports shall be annexed to the commission and
transmitted to the Court, and the Court, after hearing any objection which the
parties may make to the report or reports, shall confirm, vary or set aside the
same.
        (3)     Where the Court confirms or varies the report or reports it shall
pass a decree in accordance with the same as confirmed or varied; but where the
Court sets aside the report or reports it shall either issue a new commission or
make such other order as it shall think fit."
41. All these provisions indicate that a preliminary decree does not close the
suit and until a final decree is passed, the suit cannot be said to have ended.
42. Therefore it has to be held that a third party who has a claim against the
co-owners, can get impleaded at any stage of the proceedings i.e., even after
preliminary decree, where final decree proceedings are pending. He cannot be
told by the co-owners, "you wait till we get a final decree and the property
which you are claiming is allotted to one of us in the final decree, and then
file an application under Or.21 R.97 CPC or go and file a separate suit".
43. The courts have also held that if such third party is impleaded, the burden
of proving that the property in question is the property of the co-owners should
be discharged by the co-owners and only then the burden shifts to the other
party (the third party) to prove his title (see Rangammal Vs. Kuppuswami and
Anr12).
44. In the present case only a preliminary decree is passed and Appln.No.455 of
2009 has been filed to pass a final decree in respect of Item No.236 of the
Schedule 'A' to the preliminary decree.  As the final decree has not been
passed, an application for impleadment under Order I Rule 10 CPC is
maintainable.
45.  Therefore, I hold on issue No.1 that as a matter of law, a party can be
impleaded after passing of a preliminary decree in a partition suit and before
passing of final decree.
Issue No.2 :
OR.22 R.10 CPC IS NOT ATTRACTED :    
46. Order XXII Rule 10 CPC deals with assignment, creation or devolution of any
interest during pendency of a suit and thereby implies that such assignment etc.
would by a party to the suit or flowing from a party to the suit, on his death.
Admittedly, the applicant in Appln.No.210 of 2010 is not claiming through any of
the parties to C.S.No.7 of 1958.  He has not alleged that he has acquired title
on account of a transfer made in his favour by a party to the above suit.  That
was why he did not invoke Order XXII Rule 10 CPC.  Therefore, I do not agree
with the contention of the counsel for respondents that this application has to
be treated as an application under Order XXII Rule 10 CPC, and because
permission of the Court was not sought for the transfer in favour of the
applicant, as held in Raj Kumar v. Sardari Lal13, he cannot be impleaded.


THE APPLICANT IS ALSO NOT A TRANSFEREE  PENDENTE LITE :            
47. As stated supra, the applicant is not claiming any right, title or interest
through a party to the suit C.S.7 of 1958. His claim in Appln.201 of 2010 is an
independent one. So he cannot be treated in stricto sensu as a purchaser
pendente lite either.  Therefore the contentions of the respondents that he is
to be considered as a transferee pendente lite cannot be accepted.
EVEN IF HE CONSIDERED AS A PURCHASER PENDETE LITE , STILL HE IS ENTITLED TO BE                
IMPLEADED :  

48. In my opinion, even assuming for the sake of argument without conceding that
he is a purchaser pendente lite, on the ground that he acquired title to the
property claimed by him after the suit, he can still maintain an application
under Or.1 R.10 CPC and get impleaded.
49. It is settled law that a co-owner can sell his undivided interest in joint
property to a stranger to the family, and that the only right of the purchaser
is to sue for partition of the property and ask for allotment to him, of that
which on partition might be found to fall to the share of his vendor.  He is not
entitled for possession of what he has purchased. (Manikyala Rao v.
Narasimhaswamy14 and Khemchand Shankar Chaudhari v. Vishnu Hari Patil15)    

50. A case where Or.1 R.10 CPC was applied and a purchaser pendente lite was
impleaded after passing of preliminary decree is Dhanlakshmi v. P. Mohan16. The
apex court held that transferees pendente lite from co-owners in a partition
suit are necessary parties to the suit and a preliminary decree passed by trial
court in their absence cannot stand. It observed :
"5. Section 52 deals with a transfer of property pending suit. In the instant
case, the appellants have admittedly purchased the undivided shares of
Respondents 2, 3, 4 and 6. It is not in dispute that the first respondent P.
Mohan has got an undivided share in the said suit property. Because of the
purchase by the appellants of the undivided share in the suit property, the
rights of the first respondent herein in the suit or proceeding will not affect
his right in the suit property by enforcing a partition. Admittedly, the
appellants, having purchased the property from the other co-sharers, in our
opinion, are entitled to come on record in order to work out the equity in their
favour in the final decree proceedings. In our opinion, the appellants are
necessary and proper parties to the suit, which is now pending before the trial
court...."

51. A three Judge Bench of the Supreme Court in Savitri Devi Vs. District
Judge17 held that in a suit for a decree of maintenance filed by the appellant
against her sons and for creation of charge over ancestral property of the
family, purchasers from a share holder, provided they are bonafide transferees
for value in good faith, could be impleaded in order to avoid multiplicity of
proceedings.  It followed Khemchand (15 supra) and Ramesh Heerachand Vs.  
Municipal Corporation of Greater Bombay18 . It held that though the plaintiff is
a "dominus litis" and not bound to sue every possible adverse claimant in the
same suit, the Court may at any stage of the suit direct addition of parties and
that it is a matter of judicial discretion which is to be exercised in view of
the facts and circumstances of a particular case.  It reiterated that the test
for impleading parties prescribed in Razia Begum Vs. Sahebzadi Anwar Begum19  
that the person concerned must be having a direct interest in the action, has to
be applied.
52. Recently, in  Thomson Press (India) Ltd. v. Nanak Builders & Investors (P)
Ltd20, the Supreme Court summed up the law  as under:
"55.... Decisions of this Court have dealt with similar situations and held that
a transferee pendente lite can be added as a party to the suit lest the
transferee suffered prejudice on account of the transferor losing interest in
the litigation post transfer."

Several decisions of the Supreme Court were considered there.

53. Summing up the legal position, it is clear that in order to be impleaded, a
party seeking impleadment must have a direct and substantial interest in the
subject matter of the suit and his presence before the Court is considered
necessary in order to enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the suit.  He may be a transferee
pendente lite also. If so, notwithstanding Section 52 of the Transfer of
Property Act, 1882, he may be impleaded.  Such addition of parties is a matter
of judicial discretion and is to be exercised in view of the facts and
circumstances of the case.  This would avoid multiplicity of proceedings.
CASES CITED BY RESPONENTS ARE DISTINGUISHABLE :            
54. In Pannala Renuka (3 supra), relied on by counsel for respondents, this
court held that it is impermissible to implead pendente lite transferees. It
relied on Ramesh Chawla v. N.Srihari21 which in turn had relied on Surjit Singh
v. Harbans Singh22, Bibi Zubaida Khatoon v. Nabi Hassan Sahab23, Sarvinder Singh
v. Dalip Singh24. Firstly, Pannala Renuka (3 supra) is a suit for declaration of
title and recovery of possession and not a suit for partition. Secondly, Surjit
Singh (22 supra), was a case where an alienation pendente lite was made in a
partition suit by one of the co-owners, violating an injunction granted by the
Court against the parties prohibiting alienation. Sarvinder Singh (24 supra) is
also not a suit for partition and in that case a suit for declaration of title
and injunction was filed basing on a Will. Bibi Zubaida Khatoon
(23 supra) also would not apply, as in that case it was a suit for redemption of
a mortgage and a finding was given therein that alienation was not bonafide. The
observation in Pannala Renuka              (3 supra) that an alienation pending
suit violates S.52 of the Transfer of Property Act, 1882 and such alienee has no
enforceable right, is in my opinion, not correct in law. This is because S.52
makes an alienation pendente lite, subject to the result of the suit and does
not prohibit alienations. (see A.Nawab John v.N.Subramaniam25, Jayaram Mudaliar
v. Ayyaswami26). Therefore, I respectfully disagree with the said decision and
hold that in view of Dhanalakshmi (16 supra), it is no longer good law.
55. In S.D.Samiulla (4 supra), relied on by respondents, this Court held that
purchasers of property, pending a suit for specific performance of an agreement
of sale relating to the said property, are not entitled to come on record. It
relied on Mumbai International Airport Pvt. Ltd v. Regency Convention centre and
Hotels27.  In this case the Supreme Court held:
"Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding
striking out or adding parties. The said sub-rule is not about the right of a
non-party to be impleaded as a party, but about the judicial discretion of the
court to strike out or add parties at any stage of a proceeding. The discretion
under the sub-rule can be exercised either suo motu or on the application of the
plaintiff or the defendant, or on an application of a person who is not a party
to the suit. The court can strike out any party who is improperly joined. The
court can add anyone as a plaintiff or as a defendant if it finds that he is a
necessary party or proper party. Such deletion or addition can be without any
conditions or subject to such terms as the court deems fit to impose. In
exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the
court will of course act according to reason and fair play and not according to
whims and caprice."

It held on facts that a person, who expects to get a lease from the defendant in
a suit for specific performance in the event of the suit being dismissed, cannot
be said to be a person having some semblance of title in the property in
dispute. He therefore cannot be impleaded in a suit for specific performance.
Such is not the situation here. So this decision also has no application.
56. On facts , in this case, the Decree Holders or persons claiming through them
have applied for passing of a final decree in respect of item No.236 of
schedule-A to the preliminary decree dt.05-04-1959 in C.S.No.7 of 1958.  It was
not a preliminary decree passed on contest but was the result of a compromise
recorded by the Court in Appln.No.126 of 1958.  In the order dt.10-06-2003 in
O.S.A.No.30 and 31 of 2003 and batch, the Division Bench dealing with this item
and also other items observed that they had perused the original plaint with the
assistance of Official Translator and also the translated copy thereof and
observed that in the body of the plaint,  or elsewhere the details of properties
were not mentioned.  For the first time the details of the properties and
schedules are mentioned in the memorandum of compromise.  The preliminary decree  
dt.05-04-1959 mentions item No.236 as Somajiguda Maktha.  No details of the
Sy.Nos., boundaries or extents are mentioned in it.  In Appln.No.455 of 2009,
filed by the respondents to pass final decree for the said item, for the first
time Sy.Nos.1 to 40 of Somajiguda Maktha are referred to.  No boundaries and
extent are given.  When questioned on this aspect, Sri Vedula Venkata Ramana,
Sr.Counsel for the respondents stated that these details would come through the
Advocate Receiver -cum-Commissioner and the Court need not concern itself with
it.
57.   Normally in any suit for partition, there would be an allegation that the
properties in respect of which partition is sought are in the possession and
enjoyment of one of the defendants to the suit.  Strangely there is no such
averment in Appln.No.455 of 2009.    The Division Bench in the above O.S.As.,
considered these facts and wondered whether the Decree Holders would be entitled
to all public roads, lanes, parks, bridges, ditches, rivers, streams, tanks,
ponds, canals, lakes etc., which would otherwise vest in the Government.  This
observation was made after noticing that the Decree Holders are claiming
villages after villages in Rangareddy District and localities after localities
of twin cities of Hyderabad and Secunderabad and that apart from the State,
there could be thousands of private properties in the villages which are
included by the Decree Holders in the schedule to the preliminary decree.  The
Bench observed that a person in possession thereof would be thrown out under
orders passed by this Court without any notice to any of them. Precisely for
this reason the Division Bench in OSA No.30 and 31 of 2003 impleaded the
applicant herein as a party to the IA.No.1456 of 2000.
58. Even in respect of this item no.236, the applicant is contending that
respondents are aware of his possession in Sy.No.20/4, since some of them or
their predecessors are parties in L.G.C.No.76 of 2002 which was dismissed on 05-
05-2004.  It is the primary contention of the applicant that Somajiguda Maktha
has not been released or restored to Paigah Asman Jahi by the Board of Revenue
in the appeal filed under the A.P. (Telangana Area ) Atiyat Enquiries Act, 1952
and this fact is clear from the Muntakhab No.3 dt.14-02-1983 issued by the
Commissioner of Survey, Settlement and Land Records, Atiyat Branch, Government  
of Andhra Pradesh, Hyderabad. He has filed certified copies of the order in
L.G.C. and also the Muntakhab apart from several other documents.  He contends
that in view of this, there cannot be any final decree in this suit in respect
of the said item. Prima facie, there is substance in the contention of the
applicant. Although this Court may not probe his title to the land in Somajiguda
in detail, as it is prima facie evident that he has a direct and substantial
interest in the above item, his presence is necessary to decide, whether or not
this item 236 is available for passing of a final decree and to completely and
effectually adjudicate upon and settle the questions involved in relation
thereto. So, in my opinion, he can be impleaded as a party to the
Appln.No.455/2009.
59. This Court cannot be oblivious of the facts set out above and proceed to
pass a final decree without first verifying whether or not this item is
available for passing such a decree. All the time and effort of the
parties/counsel and the Court would go waste, if this issue is not thrashed out
and decided first. Therefore since the Court is seized of the matter, even after
passing of preliminary decree in this partition suit, it is certainly open to it
to go into the issue whether the property in respect of which final decree is
sought is available for passing of such a decree. To decide this issue, the
participation of the applicant is necessary.
60. The recent decision of the Supreme Court in Rangammal Vs. Kuppuswami and  
Anr28 holds that in a suit for partition, plaintiff should include only those
properties which are unambiguously those belonging to the family. It held that
if a third party's property is included, he can get impleaded in the suit. Then
the burden is first on the plaintiff to prove that the property belongs to the
joint family and is partible. It held:
        "31. It hardly needs to be highlighted that in a suit for partition, it is
expected of the plaintiff to include only those properties for partition to
which the family has clear title and unambiguously belong to the members of the
joint family which is sought to be partitioned and if someone else's property
meaning thereby disputed property is included in the schedule of the suit for
partition, and the same is contested by a third party who is allowed to be
impleaded by order of the trial court, obviously  it is the plaintiff who will
have to first of all discharge the burden of proof for establishing that the
disputed property belongs to the joint family which should be partitioned
excluding someone who claims that some portion of the joint family property did
not belong to the plaintiff's joint family in regard to which decree for
partition is sought".

The Court did not say that such enquiry cannot be done if this issue crops up
after the preliminary decree. If such issue can be raised in a proceeding under
Or.21 R.97 CPC by a third party or in a separate suit filed by him, there is
really no reason why it cannot be done after passing of a preliminary decree,
but before a final decree.
61. The Supreme Court had declared in Phoolchand v. Gopal Lal29, that events
which transpire after a preliminary decree necessitate a change in shares of co-
owners after passing of a preliminary decree. It held:

"So far therefore as partition suits are concerned we have no doubt that if an
event transpires after the preliminary decree which necessitates a change in
shares, the court can and should do so; and if there is a dispute in that
behalf, the order of the court deciding that dispute and making variation in
shares specified in the preliminary decree already passed is a decree in itself
which would be liable to appeal."

62. Similar view was expressed in Ganduri Koteshwaramma v. Chakiri Yanadi30.  In
that case, the Supreme Court upheld change in shares made after preliminary
decree in a partition suit by applying the Hindu Succession Amendment Act,2005
stating :
"A preliminary decree determines the rights and interests of the parties. The
suit for partition is not disposed of by passing of the preliminary decree. It
is by a final decree that the immovable property of joint Hindu family is
partitioned by metes and bounds. After the passing of the preliminary decree,
the suit continues until the final decree is passed. If in the interregnum i.e.
after passing of the preliminary decree and before the final decree is passed,
the events and supervening circumstances occur necessitating change in shares,
there is no impediment for the court to amend the preliminary decree or pass
another preliminary decree redetermining the rights and interests of the parties
having regard to the changed situation."

63. Also in Maddineni Koteswara Rao v. Maddineni Bhaskara Rao31, it reiterated :
"It is competent for the court to examine the validity of the transfers, testate
or intestate successions in the final decree proceedings, of which examination
had not been done before the passing of the preliminary decree, to take into
consideration the changes occurring on account of death of a party or transfer
made by him. Therefore, the High Court and the trial court were justified in
taking into account the will of the deceased father while passing the final
decree in the partition suit."
The Court upheld the action of the High Court which went into the validity of a
Will executed by a party to the suit in final decree proceedings after passing
of preliminary decree, when it's validity was not gone into  prior to passing of
preliminary decree in a partition suit, since it's executant was alive then.
64. Therefore where it comes to the notice of a court seized of a final decree
petition in a partition suit, that certain facts have come to light which prima-
facie throw a serious doubt as to whether the property in respect of which a
preliminary decree has been passed, may not belong to the co-owners who are
parties to the suit, but might belong to third parties, the Court cannot be
expected to fold it's hands and ignore the facts brought to it's notice. It not
only has the power but also a duty to determine the said issue.
65. Therefore the contention of counsel for respondents that if this course is
followed, it would open a pandora's box; that it would amount to converting the
civil suit into a writ proceeding, cannot be accepted. More so, when this Court
is seized of the matter, and as a Court of Record, it's powers are plenary. So
technical pleas of the nature raised by respondents cannot stand in it's way to
implead the applicant, considering the facts narrate supra.
66. Therefore, issue no.2 is also answered in favour of the applicant and
against the respondents.
Issue No.3 :
67. This issue assumes importance for the following reasons.
 In the order dt.10-
06-2003 in O.S.A.No.30 and 31 of 2003 and batch, the Division Bench as noted
supra had observed that they had perused the original plaint with the assistance
of Official Translator and also the translated copy thereof and observed that in
the body of the plaint, or elsewhere the details of properties were not
mentioned.  For the first time the details of the properties and schedules are
mentioned in the memorandum of compromise.  The preliminary decree dt.05-04-1959
mentions item No.236 as Somajiguda Maktha.  No details of the Sy.Nos.,
boundaries or extents are mentioned in it.  In Appln.No.455 of 2009, filed by
the respondents to pass final decree, for the first time Sy.Nos.1 to 40 of
Somajiguda Maktha are referred to.  No boundaries and extent are given.
Normally in any suit for partition, there would be an allegation that the
properties in respect of which partition is sought are in the possession and
enjoyment of one of the defendants to the suit.  There is no such averment in
Appln.No.455 of 2009.  The Division Bench in the above O.S.As., considered the
same facts and wondered
whether the Decree Holders would be entitled to all
public roads, lanes, parks, bridges, ditches, rivers, streams, tanks, ponds,
canals, lakes etc., which would otherwise vest in the Government. 
 This
observation was made after noticing that the Decree Holders are claiming
villages after villages in Ranga Reddy District and localities after localities
of twin cities of Hyderabad and Secunderabad. Thus, apart from those of the
State, there could be thousands of private properties in the villages which are
included by the Decree Holders in the schedule to the preliminary decree.
Sy.No.1 to 40 of Somajiguda in respect of which the application for final decree
is filed, might conceivable include Government properties, public roads, many
private buildings, (residential or commercial), lanes, parks, bridges, ditches
etc.
68. Therefore the larger public interest justifies the suo moto impleadment
under Or.1 R.10(2) CPC of the District Collector, Hyderabad, the Principal
Secretary, Revenue Department, Government of Andhra Pradesh, the Jagir  
Administrator, Govt. of Andhra Pradesh, Hyderabad as party respondents to
Appln.455 of 2009 apart from the applicant in Appln.no.210 of 2010. Therefore
they are also impleaded as respondents in Appln.No.455 of 2009. They shall file
their affidavits and properly assist the Court in arriving at a just and proper
conclusion. Issue no.3 is therefore answered accordingly.
69. For all the aforesaid reasons, Appln.No.210 of 2010 is allowed.
___________________________________    
JUSTICE M.S. RAMACHANDRA RAO        

Date: 12-12-2013

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