THE HON'BLE SMT. JUSTICE T.MEENA KUMARI S.A.NOS.410 AND 411 OF 2008 COMMON JUDGMENT Heard both the counsel. 2. As the suit schedule property in the appeals is one and the same and the appeals are arising out of the common judgment and decree passed by the court of III Additional Chief Judge, City Civil Court, Hyderabad in A.S.Nos. 385 and 386 of 2006, they are being disposed of by this common judgment. 3. Keeping in view the long pendency of the proceedings, initially from 1935, both the counsel consented for final disposal of the second appeals at the stage of admission and accordingly made elaborate submissions. 4. The suit schedule property in the present appeals, is item no.6 of plaint B schedule property in O.S.No.42 of 1992 on the file of First Additional Judge, City Civil Court, Hyderabad. Item no.6 of plaint B schedule property is an extent of Acs.68- 10 gutas covered by Survey Nos.63, 68, 69 and 70, corresponding to old Sy.Nos.62/2 and 66 of Madhapur village, Hyderabad District. 5. The appellants are the legal heirs of one B. Bala Mallaiah and their subsequent purchasers. Bala Mallaiah purchased item no.6 of plaint B schedule property from the 1st defendant in the suit in O.S.No.42/1962. For better appreciation, it is necessary to note brief history of the case. 6. One Nawab Mohammad Nawaj Jung (for short ‘Nawab’) is the owner of vast extent of properties and he died on 25th Isfander 1345 F, at Toli Chouki, Hyderabad. The legal heirs of Nawab, filed suit for partition of the Matruka (estate of the deceased) properties, in the year 1935 on the file of Darul Qazi Court, Hyderabad. However, after number of intermittent proceedings, it came to be numbered as O.S.No.42/62 on the file of First Additional Judge, City Civil Court, Hyderabad. Nawab, had three wives. Through his first wife, he had two sons, including the 1st defendant. Through his second wife, he had three sons and two daughters viz., plaintiffs 1 and 3 and 2nd defendant and defendants 4 and 5 respectively. Through his third wife, he had a son and a daughter, who are defendants 3 and 6 respectively. Besides his three wives, another two ladies also claimed to be his wives, but their claimed was rejected. Plaint A schedule comprises of 7items of double storied house etc., in Toli chowki, Bagh Mohinuddin Pasha and Gouliguda, plaint ‘B’ schedule comprises of 19 items of agricultural lands of about Acs.2200-00 gts. in 19 villages namely (1) Shaikpet, (2) Hakeempet, (3) Asifnagar, (4) Bajpalli, (5) Vatti Nagulapalli, (6) Madhapur, (7) Kottapet, (8) Kalwakunta, (9) Sur Tq. East, (10) Sarveypalli, (11) Solipur, (12) Bangargodh, (13) Palloemal, (14), Donipamlad, (15) Indoorti, (16) Kapartikalan, (17) Talab Chanchalam, (18) Kandikal Baghat, (19) Deshmukhi and plaint ‘C’ schedule comprises of movables properties. 7. Plaintiffs 1 and 2 who are Md. Hasim Ali Khan and Mohammed Ali, filed the suit for partition. Later, the 2nd plaintiff – Mohammed Ali, migrated to Pakistan and he was transposed as defendant no.12. The claim of the plaintiff is that the suit schedule properties are the matruka properties of late Nawab and that the 1st defendant is in possession and enjoyment of Matruka properties and as he was attempting to get patta of the matruka properties, mutated in his name through the Revenue Department, depriving the other shareholders and that in furtherance of his intention, on 10 Teer 1345 Fasli, he refused to distribute the properties. Therefore, the suit was filed for partition of matruka properties. 8. The 1st defendant filed written statement and inter alia stated that the plaintiff has not included in the suit many items of property, left by late Nawab, that the plaintiff has included in the suit many items of property, which do not form part of the estate left by the deceased, that no demand for partition was made, that no such demand was necessary, because the plaintiffs are in possession of the major portion of the estate left by the deceased, that the plaintiffs were also in possession of most of the properties left by the deceased, that he was in possession of patta land, which does not form part of the estate left by the deceased, that the Revenue Department due to his entitlement, have accorded patta in his name without any efforts, that in spite of the petition filed by the plaintiff, their brothers, sisters and mother, even Shikmidari rights were not granted to them, that schedules A, B, C and D annexed to his written statement show the correct list of the properties and that the plaintiffs 2, 5 and 9 are real brothers and sisters and defendant no.7 was their real mother, that the plaintiff is in collusion with their real brother, sister and mother, that all of them have not been joined as plaintiffs, instead they are impleaded as defendants 2, 5, 7 and 9, in spite of the fact that they are all living in one and the same place, that they have common and similar object and merely to have the plaintiff’s claims admitted by the said defendants and in order to cause loss to the Government by avoiding to pay due court fee, that the plaintiff has deliberately refrained from filing the list of properties in his possession and in the possession of their real brothers, sisters and mother, which act is likely to create complication in the disposal of the suit, that a wife and a daughter of late Nawab have been purposefully excluded, that including them, the total number of heirs of late Nawab, would be 11, that he has no objection to partition, if the estate left by the late Nawab is correctly shown in accordance with the list of properties filed with his written statement and a correct quantum of matruk and the correct number of heirs are shown and that after payment of proper court fee, the property shown in list A and B might be divided according to muslim law. It is further pleaded that the purchasers of the property are the proper and necessary parties who should be impleaded and that the plaint needs amendment. With these averments, the suit was sought to be decreed. 9. The other defendants also filed counters. 10. The court after framing appropriate issues and considering the evidence, both oral and documentary, passed the preliminary decree on 24.11.1970, with regard to plaint A and B schedule properties and held that plaint A and B schedule properties are matruka properties and liable for partition and rejected the claim with regard to plaint C schedule properties, as there is no evidence. For better appreciation, the preliminary decree is extracted as under: 1. That the plaintiff, defendant nos.1 to 7 and D-12 are the legal heirs of late Nawab Mohamad, entitled for the shares in the matruka properties. 2. That the plaintiff, D-1 (now his Lrs.D-23 to D-27) D-2, D-3 and D-12, the sons of the deceased (now custodian of evacuee property) are entitled to 14/104th share each in the matruka properties. 3. That D-4, D-5 (now her Lrs.D-13 to D-17) and D-6 (the daughter of the deceased) are entitled to 7/104th share each in the matruka properties. 4. That D-7 Nurunnisa Begum, the widow, is entitled to 13/104th share in the matruka properties. 5. That the claim of D-8 Ameenabi and D-9 Nurunnisa Begum is dismissed. 6. That the following are the matruka properties liable for division between the sharers: (a) the two storied house and the garden situate in Toli Chowki shown as item nos.1 and 2 in plaint 'A' schedule and also in plaint 'B' schedule. (b) The two storied malgies situate in Mahuddin Pash Bagh Shown as item 4 in plaint 'A' schedule. ( c )The house situate in Mohiuddin Pasha Bagh shown as item 6 in plaint 'A' schedule. ( d ) The house situate at Gowliguda shown as item no.5 in plaint A schedule. (e) The house situate in Aurangabad, Maharashtra State standing in the name of D-12. (f) The house situate near the police station Asifnagar. (g) the land situate in Asifnagar shown as item no.7 in plaint A schedule and item no.3 in plaint B schedule excluding the land covered by the residential house of D-1 and enclosed by the compound wall. (h) the land situate in the villages shown as items 4 to 19 in the plaint 'B' schedule. 7. That D-7 Nurunnisa Begum (now her Lrs) are entitled to Rs.21,875/- towards her dower amount out of the matruka property. 8. That the mesne profits will be determined by way of separate proceedings under O-20, R-12 C.P.C. In the final decree proceedings. 9. That the rest of the claim is dismissed. 10. That the order regarding the costs will be made in the final decree. 11. Challenging the preliminary decree passed by the trial court, the legal heirs of the 1st defendant and the plaintiff, filed C.C.A.Nos.27 and 188 of 1972 and the 6th defendant in the suit, filed cross-objection with regard to item 4 of the plaint A schedule property. By judgment and decree dated 12.11.1976, the appeals were dismissed and the cross-objection was allowed. Aggrieved by the same, the original plaintiff – Mohammed Hashim Ali Khan, filed L.P.A.No.199/1977 and by judgment and decree dated 12.10.1977, the L.P.A. was dismissed. Subsequently, the defendant no.25 – Sirajunnisa Begum, daughter of the 1st defendant, filed I.A.No.854/1984 in O.S.No.42/1962, for passing of the final decree by dividing the properties by metes and bounds by appointment of an Advocate Commissioner as per the preliminary decree and for delivery of separate possession. Similarly, the other legal heris of Nawab, who were held to have share in the maturuka property, filed different interlocutory applications for passing of final decree and for delivery of possession. 12. At this stage, it is to be noticed that the 1st defendant sold some of the plaint A and B schedule properties during the pendency of the suit. During the interregnum period of dismissal of the suit for default, and before its restoration, he has sold the present suit schedule property to one Bala Mallaiah under the registered sale deed dated 23.11.1959 for a consideration of Rs.2,000/-. Though the purchasers of the property from the 1st defendant, were not impleaded, all the sales were brought to the notice of the court and some of the sales were marked as Exs.B-2 to B-9. 13. With regard to the properties sold by D-1, the relevant observation of the trial court in the preliminary decree is extracted as under for better appreciation: “93. It is a fact and also admitted in some cases that D-1 had sold some lands in some villages. Exs.B-2 to B-9 are such sale deeds executed by D-1. It was explained by D-1 that he was to pay the land revenue to the Government and for that purpose he had to sell the lands. I need not go into the question about the lands sold by D-1 and about the sale amounts realized. In the final decree proceedings these facts can be taken into consideration. D-1 would be liable to account for the monies realized.” 14. As noted above, the daughter of the 1st defendant i.e., defendant no.25 filed I.A.No.854/1984 in O.S.No.42/1962 on the file of I Additional Judge, City Civil Court, Hyderabad, for passing of the final decree. 15. The heirs of Bala Mallaiah, and their subsequent purchasers in item no.6 of the plaint B schedule property, were impleaded in the interlocutory applications filed for passing of the final decree and they filed counters. Their claim is that the present suit schedule property was initially leased out by the 1st defendant – Md. Hamid Ali Khan, to Bala Mallaiah and he was the cultivating tenant and as the land holder was holding more than Acs.2,000-00, which is far in excess of the limit prescribed, under Section 37-A of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, he became the protected tenant and he also purchased the said land under registered sale deed, document no.742/1959 dated 23.11.1959. The third parties are the purchasers of different pieces of land in item no.6 of plaint B schedule property from the heirs of Bala Mallaiah. Therefore their claim is that, as they or their vendors, were not made parties to the suit, prior to the passing of the preliminary decree, the said preliminary decree is not binding on them and further as the decree holders who are having vast lands, failed to file declaration before the land ceiling authorities, the preliminary decree is not sustainable. 16. The case of the appellants, who filed petition under Order 7 Rule 11 read with Section 151 of C.P.C. for rejection of final decree proceedings in I.A.No.854/1984 in O.S.No.42/1962 and consequential rejection of the plaint in O.S.No.42/1962 without any further enquiry, is that the 1st defendant who was the Pattadar and in management of the B schedule properties, granted lease in favour of Bala Mallaiah on 1.3.1953 and the claim of the heirs of Bala Mallaiah is that the he is the protected tenant under the provisions of the A,P.(T.A) Tenancy and Agricultural Lands Act, 1950 and that he had acquired a statutory right to purchase the land holder's interest of 40 per cent. The legal heirs of Nawab are also bound by the lease given by the 1st defendant to Bala Mallaiah and with reference to the statutory obligation placed on the 1st defendant, he executed a sale deed in favour of Bala Mallaiah on 23.11.1959 and the appellants (third parties) have purchased the land from the legal heirs of Bala Mallaiah. Therefore, they are claiming absolute right, title and possession over item no.6 of plaint B schedule property mentioned in the suit. Their further case is that the preliminary decree is only declaration of rights of either parties and that does not have the effect of division of properties by metes and bounds and that the real partition would be done only by a final decree. The total agricultural land is more than 2000 acres in and around Hyderabad and that the preliminary decree dated 24.1.1970 show the shares of preliminary decree holders is more than the agricultural ceiling limits prescribed in the areas concerned and as per Section 8(1) of A. P. Land Ceiling Reforms (Ceiling on Agricultural holdings) Act, 1973 every person who holds more than 10 acres of wet and 25 acres of dry agricultural lands as on the notified date, shall file a declaration under the provisions of the said Act and as the declarations have not been filed, the final decree based on the preliminary decree, cannot be proceeded and if it is made, it will be null and void. It is further stated that it is settled law that the partition suit is deemed to be pending till a final decree is passed and as such O.S.No.42/62 is deemed to be pending as no final decree has been passed in respect of item no.6 of plaint B schedule property and hence the provisions of land ceiling laws have to be abided. As the decree is passed in violation of the Land Ceiling Act, it is liable to be rejected. 17. It is further stated that on 28.11.2993, an Advocate Commissioner stated to be appointed by the Court in I.A.No.854/1984 in O.S.No.42/1962 came to the above said property and tried to measure the same and coming to know about the same on 28.11.1993 itself, some plot owners gave a representation to the said Advocate Commissioner through one Mr.K.Srinivasa Rao, stating that all of them are the owners and are in possession of the said property, having purchased the same through registered sale deed from the legal heirs of late Bala Mallaiah and his brothers Komaraiah and Agaiah and opposed demarcation. The Advocate Commissioner received the said representation, acknowledged the same and left the property without measuring. Further, on 24.12.1993 when one Mr.Hasim Ali Khan and others made an illegal attempt to dispossess the third party purchasers - respondents 61 to 78, from the respective plots, they filed O.S.No.289/93 on the file of the Principal District Munsif (West and South) Court, R.R. District in respect of their respective plots for a decree of perpetual injunction against Mr. Hashim Ali Khan and others, as per the advise of their counsel. The vendors of these respondents i.e., the legal heirs of Bala Mallaiah, also filed another suit in O.S.No.294/1993 for a decree of perpetual injunction against the said Hasim Ali Khan and others in respect of their remaining land out of Sy.Nos.63, 68/part and 70/part out of item no.6 of plaint B schedule property on the file of the same court. Though temporary injunction was granted and made absolute, finally on 8.6.1998, both the above said suits were dismissed directing the plaintiffs therein to implead themselves in the present proceedings and work out their remedies. The appeals in A.S.Nos.72 and 73 of 1998 filed against the judgment and decree in O.S.Nos.289 and 294 of 1993 respectively on the file of the Second Additional District Judge, Rangareddy District, were also dismissed on 20.7.2000 holding that all the appellants may implead themselves in these proceedings and work out their remedies. 18. With the above averments, the passing of the final decree in respect of item no.6 of plaint B schedule property, was sought to be dismissed. 19. The respondents/sharers in matruka property of late Nawab, filed counter and stated that the present petition is not maintainable as the appellants who are claiming absolute title and possession of the part of the land in item no.6 of plaint B schedule property, have purchased the said property during the pendency of the suit and hence hit by lis pendens and the vendor – D-1 has no exclusive right over any part of item no.6, yet the petitioners are claiming their right through D-1 - Hamid Ali Khan, whose share in the suit property has been declared as 14/104. It is stated that the property in item no.6 of plaint B schedule property is not hit by the provisions of A. P. Land Reforms Act, as the same is not governed by the said Act and hence the prayer for rejection of the final decree on the said ground is not maintainable. It is stated that the petition in I.A.No.854/1984 is filed for passing of the final decree in terms of preliminary decree in O.S.No.42/1962, which has been confirmed by the High Court in C.C.C.A.Nos.87/1976 and 181/1976 dated 12.11.1976 and pointed out that the decretal property is not only a landed property, but also house property, which was described in A schedule and as such they are not governed by the A. P. Land Reforms Act, 1973 and, therefore, under Order 7, Rule 11 of C.P.C. the suit claim cannot be rejected. They further pointed out that the land covered under item no.6 of plaint B schedule property ceases to be an agricultural land within the meaning of A. P. Land Reforms Act, as the same is covered under Hyderabad Urban Development Authority. Their case is that the preliminary decree in O.S.No.42/1962 is passed on 24.11.1970 much before the Land Ceiling Act came into force and even otherwise, the partition is a vested right and the provisions of A.P. Land Reforms Act will not affect the vested right. They further stated that unless and until the properties are declared as matruka and are divided amongst the members as per the specific shares, the question of vacant land or reaching any excess of ceiling limit does not arise. They denied that most of the vacant land in item no.6 of plaint B schedule, is covered under 2(q) of the Urban Land Ceiling Act. With these averments, the petition was sought to be dismissed. 20. Based on the above averments, the trial court framed the following issues for trial: 1. Whether the final decree proceedings in I.A.No.854/1984 in O.S.No.42/1962 can be rejected, consequently rejecting the plaint in O.S.No.42/1962? 2. To what relief? 21. Appreciating the respective contentions, the trial court held that the petitioners or their supporting respondents have not made out any ground before this court to reject the final decree proceedings in I.A.No.854/84 in O.S.No.42/62, consequently the plaint in O.S.No.42/62 and accordingly the I.A. Thereafter, the trial court proceeded and passed the final decree by diving the property by metes and bounds and allotting the parties their respective shares as per the preliminary decree. 22. Aggrieved by the passing of final decree,, the legal heir of Bala Malliah and their purchasers/third parties, filed appeals in A.S.Nos.385 and 386 of 2006. 23. The lower appellate court considering the material on record, framed the following issues for consideration: 1. Whether the sale in favour of appellants vis a vis Bala Mallaiah are effected by Section 52 of the Transfer of Property Act? 2. Whether the final decree is not in accordance with the preliminary decree? 3. Whether the final decree is in violation of provisions of any law? 4. Whether the final decree granted by the trial court is not sustainable for any other reason? 24. Re-appreciating the entire material available on record, the lower appellate court dismissed the appeals. Hence, the present second appeals. 25. The learned senior counsel Sri N.V.Suryanarayana Murthy, appearing for the appellants submitted that the suit in O.S.No.82/1958 was dismissed for default on 8.1.1955 and the it was restored in August, 1962 i.e., after a period of about seven years. During this interregnum period, the 1st defendant – Hamid Ali Khan, sold an extent of Acs.69-10 guntas, in Sy.Nos.62/2, 66, situate at Madhapur, village, showing that the said lands are his own and not matruka, to Bala Malliah for a consideration of Rs.2,000/- under registered sale deed dated 23.11.1959. The said land is item no.6 in plaint B Schedule. The contention of the learned senior counsel is that as per the explanation –I of Section 3 of Transfer of Property Act, the plaintiffs and other heirs of late Nawab, are deemed to have knowledge of the sale deed. But no steps were taken to implead Bala Malaiah. When they have knowledge about the sale and that when the suit is not pending as on the said date and when the suit was restored to file, they ought to have impleaded Bala Maliah and they cannot seek any decree behind the back of Bala Malaiah and the sale is not hit by lis pendens. In support of his contention, he relied on the judgment of the Apex court reported in JAYARAM MUDALIAR v. AYYASWAMI[1] 26. He further submitted that the sale was during the interregnum period of dismissal of the suit for default and restoration of the suit to file. As per Section 52 of T.P. Act, in order to contend that the sale transaction is hit by lis pendens, the suit shall be pending as on the date of sale transaction. In the present case, as the sale transaction was after the dismissal of the suit for default and before restoration of the suit to file, the same cannot be said to be hit by the principles of lis pendence and further it cannot be said to be invalid and unenforceable on the restoration of the suit, since there is no proviso to Section 52 of the T. P. Act, to the effect that consequent upon the restoration of a suit dismissed for default, any transfer or dealing with the property after such dismissal of the suit for default and before its restoration, shall be deemed to be a transfer or dealing with the property pending the suit. Further, the plaintiffs will have to take appropriate steps for declaration and consequential cancellation of the sale deed, stating that the property was not the personal property of D-1 Hamid Ali Khan and that it was Matruka Property, in which they have a share and that as such it was not binding on them and that they have to pay advolorem court fee