THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.8549 OF 2001 23.09.2010 Between: Habeeba Sulthana …Petitioner AND Mr. Ealtaruddin Khan And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.8549 OF 2001 ORDER: The petitioner alleges that her great grandfather Sir Vicar-Ul-Umra, a paigah Noble, died in 1902 leaving behind huge properties including the lands in an extent of Acs.144.04 guntas in survey Nos.194/1 to 194/12 (Makta Begumpet), Hyderabad. There was a dispute among legal heirs or of late Nawab. The committee appointed by Hyderabad Ruler, the Nizam, was asked to look after the properties in 1912. The said committee nominated an officer to look after the properties. In 1929, a Board of Trust took possession of the properties in the place of Nizam’s Committee. In 1947, Lady Vicar also died leaving behind her estate. The unending internecine property disputes necessitated entrustment of all assets to Court of Wards under Andhra Pradesh (Telangana Area) Court of Wards Act, 1350F (Wards Act, for brevity). A notification was issued to that effect. In 1959, the legal heirs applied to the Government for release of the properties from custodian legis. The Government issued favourable orders in G.O.Ms.No.341, Revenue, dated 17.02.1959. These were published in the Gazette. All the properties left behind by Sir Vicar and Lady Vicar Jahanderunnisa Begum including Makta Begumpet were released. In 1961, the Government issued notification No.3 dated 26.01.1961 withdrawing the superintendence of the Court of Wards under Section 53(d) of the Wards Act, in favour of legal heirs of Sir Vicar. A condition was imposed that the properties be handed over to legal heirs who were advised to enter into compromise within a period of two months from the date of notification. It was also directed that in the event of failure on the part of the legal heirs to do so, the Court of Wards will approach the civil Court for settling the disputes. The Makta Begumpet property was also mentioned in Schedule A thereto at serial No.12 of the Statement showing the lands under supervision of Court of Wards belonging to Sir Vicar. In 1964, however, the Government issued notification No.9, dated 27.02.1964 under Section 12 of the Wards Act to the effect that the estate of Sir Vicar shall be deemed to be continued under the control of Court of Wards from 26.01.1961. The Government duly rescinded its earlier notification No.3, dated 26.01.1961. Nawab Basheer Yar Zung, grandson of Sir Vicar filed O.S.No.47 of 1965 on the file of the Court of the Additional Chief Judge, City Civil Courts, Hyderabad, for partition of the estate. The petitioner’s mother was allegedly arrayed as defendant No.49. A preliminary decree was passed on 10.08.1979. It is not clear from the material as to the consequences after preliminary decree. In 1998, some of the legal heirs approached the Government for restoration of Makta Begumpet properties to the legal heirs of Lady Vicar. The Government issued Memorandum No.37293/JA3/92-19, dated 22.04.1998 advising the Court of Wards represented by Commissioner of Survey and Settlement, Government of Andhra Pradesh not to exercise any authority over Begumpet properties. The petitioner alleges that she came to know about this aspect only when some of the legal heirs went on selling the property at Begumpet. Aggrieved by the Government memorandum, she filed the instant writ petition on 25.04.2001. The District Collector, Ranga Reddy has filed counter affidavit, opposing the writ petition. It is stated that the property at Begumpet village is inam land belonging to Lady Vicar but it does not form part of the estate of Sir Vicar as held by civil Court in O.S.No.47 of 1965. The Government also clarified the similar effect in the Memo dated 22.04.1998 and these properties are not under the management and superintendence of the Court of Wards. It has become functus officio in respect of the properties of Lady Vicar which were already released vide orders in G.O.Ms.No.341, dated 17.02.1959. The fourth respondent who was impleaded by order, dated 06.11.2008 in W.P.M.P.No.30768 of 2008 filed separate counter. Her case is as follows. She is daughter of Nawab Eqtedaruddin Khan. Sir Vicar had two sons and two daughters through his wife Jahandarunisa Begum. As eldest son Sultan ul Mulk was incapable of managing the estate after death of Sir Vicar in 1902, the management was taken over by Lady Vicar in 1907. In 1912, Sir Brian Egerton was appointed as Inspector General of Paigah, to manage the estate of Lady Vicar at Begumpet, Rasheedguda and Nayabagh. Lady Vicar sought redressal from Nazim Atiyat besides contesting succession case relating to estate of Sir Vicar. Nazim Atiyat upheld the claim of Lady Vicar and issued Muntakab No.9 of 1950 recognising her as owner for the properties including those at Begumpet. After death in 1947, her legal heirs were granted succession in 1959. In the meanwhile, the estate of Sir Vicar was taken over by Court of Wards vide Gazette Notification dated 21.08.1950. The estate of Lady Vicar was also taken over by the Notification No.61/8214 dated 19.11.1953. Subsequently, by orders dated 17.02.1959 in G.O.Ms.No.341, the properties of Lady Vicar were released. Similarly, the estate of Sir Vicar was also released by Court of Wards vide notification dated 26.01.1961, but the properties were taken back by the Government as per orders dated 27.02.1964 reversing earlier decision. Eqtedaruddin Khan and others made application and the Government issued favourable orders by orders dated 22.04.1998 confirming that the properties in Begumpet had been released from the superintendence of Court of Wards. Fourth respondent does not dispute the proceedings in O.S.No.47 of 1965 but held that the Makta Begumpet properties are not available for partition as they were exclusive properties of Lady Vicar. The judgment of the civil Court has become final and therefore, Begumpet properties do not form part of estate of Sir Vicar. The properties are in exclusive possession of the legal heirs of Sir Vicar which were also recognized by the Government. Therefore, the petitioner and other legal heirs of Sir Vicar through his first wife are not entitled for any notice before issue of impugned order. The counsel for petitioner submits that all the properties including Makta Begumpet properties belong to Sir Vicar, and therefore, the legal heirs are entitled to share in the same. When they have interest in the property, the Government could not have issued impugned memo dated 22.04.1998 without notice to petitioner and others. Per contra, Assistant Government Pleader for Revenue (TA) and fourth respondent rely on the decision of this Court in Ekhtedaruddin Khan v Revenue Divisional Officer, Chevella[1] and unreported order dated 12.12.2008 in W.P.No.4225 of 2003 (Ektedaruddin Khan v Mandal Revenue Officer) to submit that as the property exclusively belongs to Lady Vicar, all the legal heirs of Sir Vicar through his first wife are not entitled to the property and that it is only the legal heirs of Lady Vicar Jahandarunnisa, who are entitled. The counsel for contesting respondents contends that the properties are very much in possession of the legal heirs of Lady Vicar as accepted by the Government in Memo dated 19.02.2008. The petitioner claims that she is great granddaughter of Sir Vicar. Except making an allegation, no proof is produced before this Court. In a case involving the disputed question of title or claim to the property allegedly in the custody of Court of Wards, proof of right to such property is essential especially when the property belongs to a Ruler or a Noble and the disputes are more than a century old. Secondly, it is not clear whether petitioner’s grandfather late Nawab Wali-ud-Dowla was son of Sir Vicar through his first wife or through the second wife Lady Vicar. In the absence of any such material before this Court, this Court cannot consider the claim of petitioner. Thirdly, the impugned memo was issued by Government on 22.04.1998 accepting the past situation with regard to property or estate of Lady Vicar, the petitioner approached this Court after long delay of three years. Indeed as per the impugned memo, Begumpet properties were released in favour of the legal heirs of lady Vicar pursuant to the preliminary decree in O.S.No.47 of 1965. There is no dispute that the said suit was filed Nawab Basheer Yar Zung was grandson of Sir Vicar, presumably the legal heir of Sir Vicar through his first wife. Therefore, the petitioner’s contention that she is entitled to share in the property exclusively belonging to Lady Vicar or that the Begumpet properties also formed part of Sir Vicar cannot be accepted. In W.P.No.4225 of 2003, Ektedaruddin Khan and four others claimed to be legal heirs of Lady Vicar sought a writ of Mandamus preventing the Mandal Revenue Officer, Balapur and Revenue Divisional Officer, Chevella from forcibly taking possession of property in survey No.194/1 to 12. The same was disposed of observing as follows. When this matter is called, learned counsel for petitioners has placed before this Court a copy of Memo No.37293/JA.(1) 92-32, dated 19.02.2008, of Government of Andhra Pradesh. By said order, Government clarified that pending due of errata notification published in Andhra Pradesh Gazette dated 26.01.1961, lands in survey Nos.194/1 to 194/12 at Begumpet village in Ranga Reddy District stand released in favour of lady Vicar-ul-Umra, in terms of which, government passed orders on 22.04.1998. In that view of the matter, the Government cannot have any claim over land, which now stands released in favour of legal heirs of Lady Vicar. Probably for this reason, learned Government Pleader for Revenue (Telangana Area) submits that writ petition is filed on mere apprehension. While stating that there are many encroachments in the land, he further submits that respondents never tried to interfere with the land. The same is recorded. The above order would show that the petitioner herein was nowhere in the picture when the legal heirs of Lady Vicar were exercising their right, title and interest over the property and also making efforts to protect the property from illegal interference by the official and non-official parties. After considering the material on record and the background of the case, this Court is convinced that the petitioner approached this Court making all unfounded and unsubstantiated allegations. The litigation is frivolous and vexatious. Applying the principle adumbrated in Section 35A of Code of Civil Procedure, 1908, this Court is of considered opinion that the petitioner shall be mulcted with exemplary compensatory costs. An amount of Rs.25,000/- (Rupees twenty five thousand only) would be appropriate in the facts and circumstances of the case. In the result, for the above reasons, the writ petition is dismissed with exemplary costs of Rs.25,000/- (Rupees twenty five thousand only) payable by the petitioner to fourth respondent within a period of three months. If the amount is not paid within time, it shall be open to fourth respondent to execute ‘rule absolute’ as a decree of civil Court. __________________ (V.V.S.RAO, J) 23.09.2010 Pln [1] 2001 (4) ALD 197