partition suit

Supreme Court: While hearing a batch of civil appeals against the Judgment of Division Bench of Telangana High Court wherein the Judgment of Single Judge Bench was confirmed, the Division Bench of V. Ramasubramanian* and Pankaj Mithal JJ., the Court dismissed the set of appeals filed by several companies and private parties and partially upheld the portions of High Court’s Judgment. The Court also held that in a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to fundamental premise of the claim.


The Nizam of Hyderabad had the practice of granting certain lands to people for the purpose of supply and maintenance of Armed Forces. The lands so granted were known as “Paigah Estate.” The matter at hand relates to a Paigah granted to a person by name Khurshid Jah and the grant came to be known as Khurshid Jah Paigah. In the Asaf Jahi dynasty in Hyderabad, the Mohammedan nobles, were granted Jagirs or estates on military tenure and were employed as Gener.

In 1253 H. on the application of Fakhruddin Khan, a regular sanad was granted. That sanad is said to be the foundation of the title of the Paigah family. There was a partial division of family property in 1878 A.D. Thereafter, Asman Jah, Khurshid Jah and Vikar-ul-Umara remained in possession of their respective Paigahs until their deaths.

A Committee had to be appointed for the distribution of the third part of the gross income of the Khurshid Jahi Paigah among the heirs of Khurshid Jah’s two sons. This Committee was presided over by Nawab Mirza Yar Jung, the then Chief Justice of Hyderabad and they submitted their report on 17-01-1929. This Committee, known as the Paigah Committee, gave a definite finding that Nawab Khurshid Jah left no property which was not acquired or purchased out of the Paigah income within the preliminary portion of the Farman. Thus, what was left by Sir Khurshid Jah were (1) the properties or articles purchased or buildings constructed out of the income of the Paigahs and (2) precious stones, jewellery and rare articles which, in accordance with the principles laid down in the Farman are the property of the Paigahs from olden times, or have been purchased with money belonging to the Paigahs which are held by the Paigah Amir in trust as heirlooms of the Paigah family.

Twenty years after this report, the political atmosphere changed and the Jagirs and the Paigahs were abolished by means of the Jagir Abolition Regulations (Hyderabad Regulation No. 69 of 1358 F) with effect from 15-08-1949. The Jagirs and the properties connected with the Jagirs were taken over by the Jagir Administrator and the Jagirdars were declared entitled only to the commutation amount. In the year 1955-56, a lady by name Dildar-Un-Nissa Begum, who was one of the lineal descendants of Khurshid Jah filed a suit in the City Civil Court, Hyderabad, claiming (i) that the Estate left behind by Nawab Khurshid Jah was a Mathruka Estate; and (ii) that she is entitled to the shares.

Eventually, all the applications were disposed of by an order dated 26-10-2004 and ordered that the respondents were found to be holding title and possession of the lands covered by the respective sale deeds in their favour. Inasmuch as the delivery of possession was only symbolic, that too as regards vacant land, it shall be open to them to remain in possession of the said land. The petitioners did not have any right title or interest in respect of the land. Aggrieved by the said order of the learned Single Judge dated 26-10-2004, the assignees of decrees filed a batch of appeals. By a common order on 23-06-2006 the Division Bench of the High Court allowed the appeals holding that the claim petitioners failed to establish their independent right, title and interest much less possession of whatsoever nature. The High Court held that the appellants therein (‘the appellants’) had failed to establish that the land in Hydernagar village is Mathruka property of Khurshid Jah Paigah and that the preliminary decree dated 28-06.-1963 as regards the lands in Hydernagar village was vitiated by fraud. Challenging the common order dated 20-12-2019 passed by the Division Bench of the High Court for the State of Telangana, several parties have come up with the appeals on hand.

How did the Different Parties to the Dispute claim the Title?

The assignees of the decrees (Cyrus Investments Pvt. Ltd. /Gold Stone/Trinity Infraventures Ltd. (‘trinity’)) claimed title to the land of extent of about 98 acres Hydernagar primarily on the basis that:

i. it was the Mathruka property of Khurshid Jah;

ii. Dildar-Un-Nissa Begum sought partition of this property along with other properties on the basis that it was inheritable;

iii. in the judgment and preliminary decree passed on 28-06-1963 the Court had adjudicated that the property was a Matruka property;

iv. even the proceedings before the Nazim Atiyat and the Muntakhab issued thereafter confirm the entire village of Hydernagar as Inam Altamgha in the name of Khurshid Jah;

v. Inam Altamgha is hereditary and transferable;

vi. pursuant to the preliminary decree, Receiver-cum-Commissioner appointed by the Court sought directions from the Court to the Collector to hand over possession of the land by filing an application;

vii. on 23-02-1967, HEH Nizam sold his decretal rights to Cyrus by way of a registered sale deed;

viii. on 05-11-1970 the High Court passed an order in the application filed by Khasim Nawaz Jung and Cyrus for partition of the property into half amongst themselves holding that immediately after allotment of shares, D-157 and 206 may exercise their choice and move the commission to take steps in this regard;

The claim of the State was that:

i. Khurshid Jah left no Mathruka property at the time of his death in 1902;

ii. he only had Paigah/Jagir property at that time;

iii. such Jagir property vested in the State by virtue of Jagir Abolition Regulations, 1949;

iv. that these facts were confirmed by the Paigah Committee through the then Chief Justice of Hyderabad-Mirza Yar Jung in 1929;

v. the determination by the Paigah Committee is conclusive and binding on the parties;

vi. the findings of the Paigah Committee were further confirmed by the royal prerogative of Nizam, as seen from Farman; that it is settled law that all Jagir lands vest in the State and they are inalienable and non-heritable;

vii. as held by the High Court in the impugned judgment, the preliminary decree itself was vitiated by fraud and hence no findings recorded therein can be relied upon

The case of the claim petitioners was that:

i. their predecessors were the original cultivators of the land of Hydernagar village;

ii. they became pattadars for the extents of land under their cultivation by operation of law, namely Rules 2 and 3 of the Rules Relating to Grant of Pattadari Rights in Non-Khalsa Villages;

iii. a Zamina Sethwar was also issued to that effect in 1947 itself with tonch map and Pote numbers by sub-dividing Survey No. 172 into Survey Nos. 172/1 to 172/25;

iv. the original Sethwar was obtained by the Collector from the State archives and forwarded to the Tehsildar (West), Hyderabad for recording the same in the revenue records vide the letter dated 19-05-1979, as evidenced by Faisal Patti;

v. the portions of the land in Survey No. 172 were developed into a colony of residential plots by Cooperative Housing Societies and that the claim petitioners bought individual housing plots from the Cooperative Housing Societies; and

vi. the claim petitioners thus became the owners of individual plots.

Analysis of the Issues

1. Whether the Division Bench of the High Court was right in declaring that the preliminary decree dated 28-06-1963 was vitiated by fraud and consequently null and void, especially when there was no pleading and no evidence let in?

2. What is the scope of the enquiry under Order XXI, Rules 97101, Civil Procedure Code?

The Court said that it was rightly contended that no one had pleaded that the preliminary decree was vitiated by fraud. Further, the Court said that allegations of fraud require special pleadings in terms of Order VI, Rule 4 CPC. The Court noted that fraud was not one of the issues framed by the Single Judge Bench. The Court said that the difficulty with the findings of the Division Bench was that none of the parties to the preliminary decree challenged the same on the ground that it was vitiated by fraud. Further, the Court said that an application under Order XXI Rule 97 Civil Procedure Code, 1908 is to be filed by the decree-holder (or purchaser in execution of the decree), as can be seen from the statutory provision. In contrast, an application under Order XXI Rule 99 is to be filed by the person dispossessed of immovable property, by the holder of a decree for possession. In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent titles in themselves. What was filed by Dildar-Un-Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim. Therefore, the Court viewed that the preliminary decree dated 28-06-1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties. Further, the Coury said that any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties.

3. Whether the concurrent findings of the single Judge and the Division Bench of the High Court that Khurshid Jah did not leave behind any Mathruka property, goes contrary to the finding recorded in the Judgment and preliminary decree that has attained finality?

4. Whether the finding recorded in the Judgment and preliminary decree that the lands in Hydernagar are Mathruka property binding upon third parties?

The Court said that the sanad merely stated that the Government lands and land of Khurshid Nagar were acquired for the Railway Road and that the acquired land was the purchased land of Khurshid Jah. If on account of the said statement, the land must be construed as Mathruka, it cannot be ascertained how and why after the death of Khurshid Jah these lands also went into the hands of Paigah Committee. Therefore, the Court said that in any case, these are the questions which could not have been decided by the Court in a suit for partition.

The Court said that the entire basis of the claim of the appellants was that as per the preliminary decree these properties were Mathruka properties. But the same was not borne out by the findings recorded by the Trial Judge in Judgment dated 28-06-1963. Much was sought to be made, out of the finding recorded by the Nazim Atiyat Court that the lands in Hafeezpet and Hydernagar included in the order of Nazim Atiyat was Inam-al-Tamgha. Further, the Court said that the order of the Nazim Atiyat was not before the Trial Judge. The Trial Judge did not record the finding that it was Inam-al-Tamgha. In any case, it was only a suit for partition. Therefore, if at least the order of Nazim Atiyat and the Muntakhab had come into existence before the preliminary decree and they had been produced as exhibits in the suit, the Trial Judge could have had an opportunity to apply his mind to find out the effect of the Hyderabad Abolition of Inams Act, 1955 (‘1955 Act’) on Inam-al-Tamgha. Since everyone focused attention only on Hyderabad Jagir Abolition Regulations, 1948 and a contention was raised that the personal properties of the Jagirs were exempt under Section 18, no one ever examined the impact of 1955 Act. Even if the property in question escapes the guillotine under the Jagir Abolition Regulations, it may meet its fate under the 1955 Act. Thus, the Court held that the Single Judge as well as the Division Bench in the impugned judgment were right in holding that the properties were not established to be Mathruka properties. The effect of the order of the Nazim Atiyat was not examined by the Trial Judge. In any case, such an examination had to be done independently and not in a partition suit, keeping in view, the 1955 Act and various subsequent enactments relating to agricultural land reforms and urban land ceiling.

5. Whether the State of Telangana has any legitimate claim and whether any such claim would still survive after a series of setbacks to the State Government?

The Court noted that the High Court recorded a finding that pattas were granted to cultivating Ryots prior to 1948 and that therefore, the land did not vest in the State Government after the Hyderabad Jagir Abolition Regulations. The Court also noted that the the High Court also held that the Revenue Department of the subsequent State Government accepted these pattas as genuine and implemented the sethwar issued in 1947 and faisal patti issued in 1978-79. Therefore, the High Court had declared that the land did not vest in the State Government after the Hyderabad Jagir Abolition Regulations. Further, the Court noted that the State was not a party before the Division Bench of the High Court. Therefore, the findings of the High Court were not binding upon the State of Telangana. The Court also said that in fact, the State of Telangana need not have filed any appeals against the impugned judgment, as the declaration by the High Court should be understood as a finding with regard to the claim of the claim petitioners qua the appellants.

The Court said that if in a suit for partition, the title to a property cannot be decided in favour of the parties claiming partition qua strangers, the same logic would apply even to the claim petitioners qua the State Government. If the claim petitioners had title to a portion of the land in Hydernagar (roughly working out to about 11 acres out of a total of acres 196.20), the question as to who holds title to the remaining part of the land would remain at large, if the assignees of the decree go out. If the appellants have no title to the rest of the lands on account of the Jagir Abolition Regulations and if the claim petitioners have title only to one portion of the land on account of the pattas granted prior to 1948, there must be somebody who owns the remaining extent of land. The Court said that assuming that somebody else owned the land, the effect of agricultural land reforms and urban land ceiling enactments were still there to be considered. Therefore, the Court held that the findings recorded, and the conclusion reached in the impugned Judgment, were not binding on the State Government.

Thus, on basis of analysis of the above issues the Court dismissed the appeals filed by Trinity, the State of Telangana, the legal representative of Sahebzadi Hameedunnissa Begum, along with all the other appeals filed by other private parties against the impugned Judgment.

[Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738, Decided on 15-06-2023]

*Judgment Authored by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

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