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Narthar Raj and ors. Vs. Tirupathi Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No.1500 of 1981
Judge
Reported inAIR1982AP115
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 58 to 63; Civil Procedure (Amendment) Code, 1976
AppellantNarthar Raj and ors.
RespondentTirupathi Bibi and ors.
Appellant AdvocateM.L. Ganu, Adv.
Respondent AdvocateB. Udaya Bhaskar, Adv.
Excerpt:
.....21 rules 58 to 63 of code of civil procedure, 1908 and code of civil procedure (amendment), 1976 - receiver took possession of property by reason of court's order - later in appeal order of lower court found to be unjustified and court ordered to return back possession to lawful owner - in the meantime property leased out to petitioner - property continued to be in possession of receiver although its actual possession was in hands of petitioner as lessee - court decided that lawful owner can reclaim property at any time - petitioner who was holding property from receiver cannot legally make any complaint against order of dispossession - court directed restoration of possession to legal owners. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a..........bibi and sri kanan raj seeking partition of the joint family properties did not include this 40 bighas land would show that the 40 bighas of land never belonged to them. the petitioners also argued that even assuming that the property belonged to the joint family of kanan raj and narsing raj the rule against splitting partition actions should have been held to debar smt. thirupathibibi and sri kanan raj from filing this i. a. the next contention that is urged by the present petitioners against the lower court's order is that the finding of this court in c. c. c. a. no. 15 of 1974 confirming the decree of the lower court in o. s. 24 of 68 holding that smt. thirupathibibi and sri kanan raj had no right to the joint family properties had become final and operates to debar the present.....
Judgment:
ORDER

1. The Civil Revision Petition is filed against the order of the learned II Additional Judge, City Civil Court, Hyderabad, dated 31st march, 1981 decreeing I. A. No. 97 of 1971 in O. S. No. 32 of 1959 in part. The effect of it is to put back the petitioners in I. A. in possession of a part of item I of plaint schedule property in the above O. S. 32/59.

2. Late Sri Narahari Prasad, who died in 1299 Hijri had left behind Sri Raja Girdhari Prasad alias Bansi Raja and Sri Khubchand. Sri Raja Girdhari Prasad also called Banji Raja in his turn left behind Sri Keshan Prasad through his first wife and Smt. Silo Bibi his second wife. Sri Khubchand left behind Sri Ganesh Prasad, Sri Parameshwari Prasad. O. S. No. 32 of 1959 was a scheme suit filed by certain Archaka claiming the plaint schedule properties as having been endowed to and therefore belonging to Sri Chenna Keshavaswamy Devasthanam at Keshaogiri alias Chandrayanagutta, Hyderabad City. To that suit Sri Raja Narsing Raj Behadur was a party but none of the decedents of Khubchand were made parties. That suit was decreed by the trial Court holding that the properties mentioned in the plaint schedule were endowed to the temple and did not belong to Shri Raja Narsing Raj Bahadur's family. After the preliminary decree had been passed in that suit the trial Court appointed a Receiver who had been directed to take possession of the properties belonging to the endowment. Accordingly the Receiver had taken possession of all the properties which were annexed to the plaint in O. S. No. 32 of 1959. Of those properties, 40 bias of land worth which we are now concerned in this revision were taken possession of from Shi Kanan Raj, who is the great grand daughter's son of Sri Narahari Prasad through Khubchand. Subsequently these properties had been leased out to Sri Narahar Raj who is the song of Sri Raja Narasing Raj Behadur. Against the decree of the trial Court passed in O. S. 32 of 1959 the defendants filed an appeal to the High Court. In the appeal the High Court vide judgement dated 18-7-68 confirmed the decree of the trial Court in most respects but varied the decree in so far as the aforesaid 40 bigas of land taken possession of from the aforesaid Kanan Raj. The appellate Court held that the 40 bigas of land did not form part of the endowed property. But the Court did not give back the 40 bighas to Kanan Raj. Even thereafter the 40 bighas of land are continuing to be in the possession and enjoyment of Sri Narhar Raj by reason of the lease which he had taken of this property of 40 bighas from the Receiver. Meanwhile Sri Kanan Raj and his mother Smt. Tirupathibibi filed a suit for partition of the joint family properties against Sri Narahar Raj. But in the schedule to plaint filed in that suit these 40 bighas of land were not shown as belonging to the joint family and as available for partition. That suit was dismissed by the trial Court and the dismissal was also, affirmed by this Court in C. C. C. A. No.15/74. But against the order passed by this Court in C.C. C. A. 14 of 1974 Smt. Thirupathi Bibi and Sri Kanan Raj have appealed to the Supreme Court by Special Leave under Articles 136 of the Constitution. That matter order passed by the Supreme Court on 25th March, 1980. The compromise, in material parts, reads that 'the defendants/respondents including legal representatives of respondent No. 4 shall pay a sum of Rs.25,000 to the petitioners/plaintiffs in full and final satisfaction of the claim of the plaintiffs/appellants for the share claimed by them in the suit from which this appeal arises'. Long prior to the aforementioned compromise dated 25th March, 1980 Smt. Thirupathi bibi and Sri Kanan Raj have filed I. A. No. 97 of 1971 claiming that the Received should give them back possession of the 40 bigas of land by putting them back in possession of the 40 bigas of land which had been taken from them by the Receiver in O. S. 32/59. This I. A. was opposed by Sri Narhar Raj. But the trial Court by its order dated 31st March 1971 which is now challenged in this revision had directed that the Receiver should be discharged in so far as these 40 bigas are concerned and that possession of the 40 bighas of land should be restored back to Smt. Thirupathi Bibi and Sri Kanan Raj. It is against that order that the present Civil Revision Petition has been filed b y Sri Narhar Raj and others.

3. The petitioners have argued that the lower Court had erred in ordering the I. A. Their main argument is based upon a contention that I. A. No. 97 of 1971 is a pro interesse suo proceeding which is discretionary in nature which the lower Court ought to have rejected having regard to the facts and circumstances of the case. According to them the application should not have been ordered by the lower Court and that the petitioners in the I. A. ought to have been referred to file a regular suit. It is argued by the revision petitioners that the fact that O. S. N.24 of 1968 filed by Smt.; Thirupathi Bibi and Sri Kanan Raj seeking partition of the joint family properties did not include this 40 bighas land would show that the 40 bighas of land never belonged to them. The petitioners also argued that even assuming that the property belonged to the joint family of Kanan Raj and Narsing Raj the rule against splitting partition actions should have been held to debar Smt. Thirupathibibi and Sri Kanan Raj from filing this I. A. The next contention that is urged by the present petitioners against the lower Court's order is that the finding of this Court in C. C. C. A. No. 15 of 1974 confirming the decree of the lower Court in O. S. 24 of 68 holding that Smt. Thirupathibibi and Sri Kanan Raj had no right to the joint family properties had become final and operates to debar the present claim made in the I. A.

4. The further contention urged on behalf of the petitioners is that the compromise entered into in the Supreme Court would extinguish all claims, rights and interests of Smt. Thirupathibibi and Sri Kanan Raj to all the joint family properties and any further claim such as the one which they are now putting forth in the I.A. cannot be upheld. It is also in argued that an application in the nature of pro interesse suo cannot be filed in relation to a property which was the subject matter of O. S. No. 39 of 1962 and C. C.C. A. 39 of 1962 long after the suit had been disposed of on 18th July, 1968. The argument of the revision petitioner is that an application of this nature can be filed if at all only before the Courts have finally deleted the 40 bigas of land were subject to any lis or litigation in the Courts. It is said for the revision petitioner that when that property was not available to be dealt with in the above O.S. 39/62, no application could be entertained in relation to the property. It is also argued that the very foundation for the pro interesse suo application is not established in this case, because it is highly doubtful from the facts and circumstances of this case that the Receiver had ever taken possession of the 40 bigas of land from Sri Kanan Raj. It is argued that the Receiver's report never mentioned that at the time when the property was being taken possession of there was any protest from Sri Kanan Raj or Smt. Thirupathibibi and that the words 'under protest' to be found in the panchnama Ex. A-16 are highly suspicious and appear to be interpolations. It is also said that this property of 40 bigas of land was a Crown grant made to Sri Bansi Raja and that therefore it would not form part of the joint family property.

5. Pro interesse suo proceedings though not common are not unknown to law. These proceedings are instituted by a party who claims a paramount title to the property that has been dealt with by the Court adversely to the applicant but without his being a party. Pro interessee so means according to his interest; to the extent of his interest (see Black's Law Dictionary'). In Prahlad Pd. v. T. F. Kumari, : AIR1956Pat233 a Division Bench described these proceedings in the following words (Para 23):-

'A third party is possession having a bona the fide paramount title is not affected by the appointment of a receiver in a suit relating to that property. In case his possession is interfered with either by the Court, which appoints the receiver, or the receiver himself, he has two remedies open to him to redress his grievance (I) either to place his claim before the Court, which has appointed a receiver for his examination 'pro interesse suo' or (ii) to institute a regular suit with the leave of the Court. In case the third party claimant follows the first remedy and for the court to test the claim judicially so that, the court shall not by its dominant power hold the property on which the parties to the suit have no claim and hold it in despite of the real owners.'

In Union of India v. Kashi Prasad, 0043/1962 : AIR1962Cal169 a Division Bench of the Calcutta High Court observed that pro interesse suo proceedings are used especially to allow a party to intervene for his own interest in a proceeding instituted between other parties and that the nearest Indian equivalent of a pro interesse suo application is the procedure prescribed in Rr.58 to 63 of O. 21 of the Civil P.C. dealing with investigation of claims and objections to attachment. It is, therefore, clear that the pro interesse suo proceedings are a judicial device intended to protect the rights of the persons who are not parties to the proceedings in a suit but who suffered a legal injury because of the dominant court action. For the grant of relief to such a third party who makes an application pro interesse suo it must first be found that the property that has been dealt with the Court earlier did not form part of the subject matter of the previous litigation and that the third party now applying has a paramount interest which should not be allowed to be simply affected by the superior might of the court. It, therefore, becomes necessary to find whether the two petitioners in I. A. who applied pro interesse suo have a paramount interest in the above 40 bighas of land. It is admitted that by reason of the appellate order that property of 40 bighas was not the subject matter of the litigation in O. S. No. 32 of 59. From the narration of facts which I have made above, the appellate Court held that the 40 bighas of land was not part of the property endowed and accordingly that extent of property was deleted from the purview of the confirming decree passed by the appellate Court. It follows therefore that taking possession of that property of 40 bighas by the Receiver from Kanan Raj who was not a party to O. S. 32/59 was not the result of judicial adjudication but the result of the superior power of the Court. It follows from the above that Kanan Raj and Tirupathi Bibi are entitled to institute the present pro interesse suo application for the protection of their rights and interests in the estate of 40 bighas and this Court should grant them by putting them back in possession.

6. Mr. Ganu, however, suggested that there was no evidence to show that this property of 40 bighas was taken possession of from Kanan Raj. But, I am not prepared to act up[on that argument for more than one reason. Firstly, the lower Court in these proceedings found as a fact that the Receiver did take possession of these 40 bighas from Kanan Raj. That being a question of fact and not without factual support, I am not prepared to disturb that finding. Secondly, Mr. Ganu admitted very fairly that in earlier proceedings also it was found by the Courts that the possession of this property had been taken from Kanan Raj. It is not the case of the present revision petitioners before me that possession of 40 bighas had been taken from them. In fact they have been enjoying this property as lessees from the Receiver. They had never made any claim to these properties after they had been deleted from the scope of O. S. No. 32 of 59. In those circumstance, I hold that the lower Court committed no error in basing its finding that this property of 40 bighas was taken possession of by the Receiver from Kanan Raj. It is well known that the appointment of a Receiver is of no legal effect against a stranger to the action who is in actual possession of the property. It is observed in Amulya Chandra v. Kashinath, AIR 1927 Pat 297 that 'the rule is firmly established that as against a stranger to the action, who is in actual possession, the appointment of a Receiver is of no effect. But by reason of the appellate Court judgement deleting the aforesaid 40 bighas from the scope of O. S. 32 of 1959, the Receiver's continued possession of that property is wholly unauthorised. Kanan Raj from whom possession has been taken has a paramount right to claim back the possession of that property.

7. But it is argued that pro interessee suo is a discretionary remedy and that remedy should not be granted to the petitioners in this case. I must say that the suggestion that any discretion a court of law might have should be used against an applicant cannot be right. I find from Gibbon's 'The Decline and Fall of the Roman Empire' that the discretion of the Judge is the first engine of tyranny. Where a court finds a citizen's valuable right have been illegally interfered with by the superior might of the State. I do not see any justification to drive the complainant from pillar to post and from application to suit and appeal. Where this harm is unintended result of a failure to follow-up the judgement of the appellate Court, unasked the Court should remedy the wrong. it is no doubt true that in O. S. No. 24 of 68, these properties had nor been claimed by the present I. A. petitioners as belonging to the joint family. But that does not in law debar the I. A. petitioners from maintaining this application. Further, no absolute rule was shown to me forbidding the parties from bringing partition actions in parts in all circumstances. I agree that it is generally desirable that suits for partition should cover the entire partible estate. But that rule does not lay down that in no circumstance, partition action can be brought in parts. No special circumstances are shown in this case. Above all, I cannot treat pro interesse suo proceedings as partition action. I do not, therefore, agree with this contention.

8. The next argument urged by this petitioners also does not appeal to me. This argument turns upon the meaning that should be given to the compromise entered into in this suit. That compromise in terms does not relate to these 40 bighas of land. On the other hand it is confined to the dispute then raging between the parties and it reads so. Therefore, I cannot agree that that partition would have the effect of extinguishing the rights of the present petitioners.

9. The next argument that pro interesse suo proceedings cannot be instituted after O. S. No. 39/62 had been finally disposed of cannot be accepted. No statutory provision prescribing any period of limitation for the institution of these proceedings has been brought to my notice. In the absence of any such statutory bar of limitation, the extent of 40 bighas taken possession of by the Receiver from Kanan Raj by reason of the Court's order, can be reclaimed back at any time by their lawful owner. Any time is good time for rendering penitence. Doing right cannot be stopped on the ground of time. This property even to this day continues to be in the possession of the receiver although its actual possession is in the hands of the present revision petitioners as lessees. No third party interests had intervened. In fact, I find that these revision petitioners who are holding the property of 40 bighas from the Receiver cannot legally make any complaint against the present order. All that I. A. order does is to dispossess the Receiver and to give back possession to the I. A. petitioner from whom the Receiver took possession. The revision petitioners cannot complain at all. In view of the paramount duty of the court to protect the rights of the person from whom the Receiver has taken possession which was subsequently found to be unjustified I dismiss this application with costs. The result of this order would only be to direct the restoration of the possession of the 40 bighas to Karan Raj and Tirupathi Bibi to be enjoyed by them jointly with the present petitioners in this C.R.P. adjudicated upon in a properly brought suit as and when it is so bought. The Civil Revision Petition is accordingly dismissed with costs.

10. Revision dismissed.


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