KUMARI S.A.NOS.410 AND 411 OF 2008 COMMON JUDGMENT Heard both the counsel & Ors. v. AYYASWAMI[1]

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.

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.

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.

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.

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.

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.

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.

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.

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.

Based on the above averments, the trial court framed the following issues for trial:

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?

To what relief?

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.

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.

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?

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?

Re-appreciating the entire material available on record, the lower appellate court dismissed the appeals. Hence, the present second appeals.

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]

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 for the said relief. But no such steps have been taken. In support of his contention, he relied on the judgments of the Apex Court reported in VAREED JACOB v. SOSAMMA GEEVARGHESE[2] and also on the Division Bench of this court reported in NANDIPATI RAMI REDDY v. NANDIPATI PADMA REDDY[3]. Therefore, he contended that the sale made by D-1 showing the properties as his own, is valid and the court below is not justified in granting preliminary decree dated 24.11.1970 even for the said lands and the said preliminary decree is not valid and binding upon Bala Mallaiah, as he was not a party in the suit and as the sale is also not hit by the principles of lis pendens.

He further contended that the under the plaint B schedule properties for Madhapur lands, Bala Mallaiah was shown as lessee. The 1st defendant has specifically stated in the written statement that some of the purchasers are in possession of the property. In spite of this specific stand, the plaintiff did not seek for amendment of the plaint for impleading the said purchasers and also did not seek for any declaration for setting aside of the sales made by D-1. Therefore, the plaintiffs and the defendants have to suffering for their conduct.

He alternatively contended that whether the sale is hit by the principles of lis pendens or not, the vendee of D-1 i.e., Bala Malaiah or his legal heirs and alienees have got every right to get impleaded in the final decree proceedings and question the validity of the preliminary decree. Therefore, interlocutory applications filed by the heirs of Bala Mallaiah and their subsequent purchasers, were allowed and accordingly they were impleaded in I.A.No.854/1984 filed for passing of the final decree. Once they were pleaded, they are entitled to question the truth, validity and binding nature of the preliminary decree and also plead that Bala Mallaiah and his successors have prescribed their title by adverse possession in respect of Madhapur lands and that any decree based upon consent that Madhapur lands were matruka lands, by late Hamid Ali Khan or his heirs was invalid and not binding upon them, as late Hamid Ali Kham ceased to be the owner, as he sold the property as his own.

The learned Senior Counsel further pointed out that pending the suit, and also after passing of the ex parte decree and before it was set aside, the 1st defendant sold different properties under plaint A and B schedules to third parties under registered sale deeds, which are marked as Exs.B-2 to B-9, but the plaintiff or the other defendants who are sailing with him, did not choose to challenge the said sales on the ground of lis pendens and claimed share in the said properties. He contended that the said sales were also brought to the notice of the court and the court below held that the 1st defendant has to account for the sale proceeds, but strangely, they did not include the present sale to Bala Mallaiah. Had this item was included, the court below would have made similar observation, which was made in respect of other sales, but purposefully, the present sale was suppressed.

He contended that admittedly the D-1 sold the land in dispute under B schedule to Bala Mallaiah, showing them as his own, under Registered sale deed during the interregnum period of dismissal of the suit and before its restoration. But D-1 failed to give notice to Bala Malaiah about the pendency of the proceedings or seek his impleadment in the suit. This shows the conduct of D-1.

However, he contended that the court below found that there is no dispute with regard to item no.6 of plaint B schedule properties. This assumption of the court below is contrary to the pleadings on record. He contended that if there was no dispute, then both the parties including D-1 would have requested the court not to set aside the ex parte decree in respect of Madhapur lands, but they did not do so, obviously, because it was disputed. Even otherwise also, if there was no dispute with regard to item no.6 of plaint B schedule property, then by virtue of the power conferred under Order IX, Rule 8, the trial court ought to have passed a decree, but it did not do so. Therefore, the court below is not justified in considering that there is no dispute with regard to item 6 of plaint B schedule property.

The learned counsel contended that D-1 sold the property in dispute, as his own and not as matruka property. This stand is fortified by the declarations filed by the plaintiff, D-2, D-3 under Section 8 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. In those declarations, they did not show the Madhapur lands as belonging to them. Therefore, it can be inferred that Madhapur lands belong to Hamid Ali Khan – D-1 only, and not to the plaintiff or other legal heirs of Nawab.

He contended that on 10.8.2004, Hashim Ali Khan – the plaintiff, filed a counter in I.A.No.544/2004, stating inter alia that there was no need to file a declaration under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 as the Madhapur lands were urban vacant lands governed by the Urban Land Ceilings Act and that on 20.12.2003, in proceedings F1/4548/03 notice was issued in the name of Bala Mallaiah calling upon him to file a statement in the form – I of Urban Land Ceiling Act. Therefore, it is clear that the authorities under the Urban Land Ceiling Act, recognized only Bala Mallaiah as the owner of the lands and that notice was given to him only by the authorities and that the plaintiff and other heirs did not protest against the notice being given to B.Bala Mallaiah or filed any declaration under the Urban Land Ceiling Act. Further, before the Supreme Court in BODDAM NARSIMHA v. HASAN ALI KHAN (DEAD) BY LRS AND ORS.[4], to which the plaintiff and others are parties, the Apex Court referred in paragraph no.7 of its judgment to the report of the Mandal Revenue Officer and observed inter alia “It was further reported that Bala Mallaiah was the pattadar, that he was cultivating the lands as pattadar and that he was cultivating the lands as owner under the above sale deed dated 23.11.1950.” Therefore, the learned senior counsel contended that, it does not admit of any doubt that the sale deed dated 23.11.1959 was acted upon by Hamid Ali Kham D-1 as well as Bala Mallaiah and the plaintiffs and other heirs stood by the same that it was the property of D-1 originally and after the sale it was the property of Bala Mallaiah and they did not, as already stated above, show Madhapur lands in their declarations filed under Section 8 of A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or objected to the Urban Land Ceiling Authorities in giving notice to Bala Mallaiah muchless, when they filed declarations under the said Act.

Therefore, for all the above reasons, the final decree, which confirmed the preliminary in respect of item no.6 of plaint B schedule property is liable to be set aside.

He contended that pursuant to the appointment of an Advocate Commissioner he went to the land in dispute and started execution of the warrant. During the said process, he found the present appellants and some others were in possession of the property and they showed him the sale deeds. The Advocate Commissioner in his report held that the possession of the appellants herein is pendente lite and the sale is hit by the doctrine of Lis pendens by virtue of the provisions under Section 52 of the T.P. Act. He stated that the Advocate Commissioner has no authority to make such observations and the courts below are not justified in not considering the authority of the commissioner to make such observations, prejudicial to the interest of the appellants.

He further contended that the lower court wrongly assumed that Bala Mallaiah has knowledge of the suit without any basis. There was no threat to title and possession of Bala Malliah during his life time and there was no threat to title and possession to his heirs who after obtaining permission from HUDA sold the plots till 26.11.1993 when the Advocate Commissioner came to the land and gave notice which was adequately replied on the same day by Sri K.Srinivasa Rao. In the panchanama, as well as in the Advocate Commissioner’s report, it was stated that the third parties were in possession of the lands in Sy.Nos.68, 69 and 70 that they were plotted and that they objected. The Advocate commissioner should have returned the warrant to the Court reporting that it was not possible for him to execute the warrant as the land was already developed that some buildings were also there and in the process of developing. On the other hand, the Advocate Commissioner curiously finds that the sale deed dated 23.11.1959 was hit by lis pendens without any justification or authority and reports that he has given symbolic delivery of the plots earmarked by him. He stated that the court did not ask him to give symbolic delivery.

He further stated that the moment they came to know about the threat to their title and possession, it is a matter of history that without losing any time, the appellants filed initially suits in O.S.No.289 and 294 of 1993 in the court of the District Munisf, South and West, R.R. District at Saroornagar for a perpetual injunction against Hashim Ali Khan, plaintiff no.1 and others restraining them from interfering with their peaceful possession and enjoyment of the lands. Pending those suits, B.Chinna Mallesha and others also filed L.G.C.No.148/1996 before the Special Court under A. P. Land Grabbing (Prohibition) Act, 1992 against Hashim Ali Khan and others alleging that they were making attempts to grab the application schedule property. However, the said L.G.C. was dismissed and even the suits and the further appeals were also dismissed with liberty to the appellants to get themselves impleaded in O.S.No.42/1962 and work out their remedies.

Therefore, he contended that the lower court is in error in not following the judgment of the Apex Court and dismissing the application resisting for passing of a final decree. He contended that even if the decision of the Apex Court does not operate as res judicata, it operates as a binding precedent having regard to the decision given, upholding the rights of Bala Mallaiah based upon the sale deed dated 23.11.1959. In support of his contention, that the decision of the Apex Court would operate as binding precedent, he relied on another judgment of the Apex Court in SAHU MADHO DAS v. MUKAND RAM[5].

With regard to adverse possession, the learned senior counsel submitted that on 23.1.1959 Bala Mallaiah purchased the Madhapur lands and was put in possession. Till his death in 1975, he was in possession of those lands for over 16 years as owner and his possession being open, adverse, hostile, continuous and exclusive, he prescribed his title by adverse possession even assuming that his title under the sale deed dated 23.11.1959 was imperfect for any reason whatsoever. Further, the Mandal Revenue Officer, Serilingampally Mandal, in is report dated 19.1.1999, submitted to the Revenue Divisional Officer, Chevella Division in connection with the Case No.G/4898 filed by B.Narasimha, s/o Agaiah for issuance of ‘ownership certificate’ stated that as per faisal patta for the year 1960-61, survey nos.63, 68, 69 and 70 admeasuring Acs.11- 20 guntas, Acs.19-17 gts., Acs.18-31 gts and Acs.19-21 gts respectively totaling Acs.69-10 gts. situate at Madhapur village, were mutated in the name of Bala Mallaiah and that he reported that Bala Mallaiah was the pattadar and that he was cultivating the lands as pattadar and that he was cultivating as owner under the sale deed dated 23.11.1959. Therefore, as per the revenue records, Bala Mallaiah became pattadar by 1972-73. After his death, his sons Chinna Mallesha and Chinna Narasimha and his undivided brothers Agaiah and Komaraiah, were recorded as pattadars. They converted part of Sy.Nos.68 and 69 into residential plots and after sanction of lay out from HUDA, entered into an agreement for development for the above said lands. All the I.As. were filed by the purchases of these lands. Therefore, after the death of Bala Mallaih, his heirs were in possession of Acs.69-10 gts. of Madhapur village and asserted their rights of ownership and possession by converting the land into residential plots and sold under registered sale deeds and have delivered possession. Further it is not the case of heirs of late Nawab namely, the plaintiffs and others, that they were ever in possession of the property, or objected to the possession of Bala Mallaiah.

He submitted that the plea of the plaintiffs is that as the sale deed dated 23.11.1959 is hit by lis pendens, their possession would not be adverse depriving them of their title to those lands. He stated that this argument cannot be sustained. In similar circumstances, the Apex Court in RAJENDAR SINGH v. SANTA SINGH[6] rejecting the argument of the present nature, held that Section 52 of T.P. Act does not stop the running of time under the Limitation Act and the defendants/respondents therein, prescribed the title by adverse possession. The Apex Court further held that in these circumstances, the only mode of relief open to the plaintiffs is to have instituted a suit of their own within the period of limitation had expired. Therefore, he submitted that the plaintiff ought to have impleaded Bala Mallaiah in O.S.No.42/1962 or instituted a separate suit for recovery of possession or before 23.11.1971, when the prescribed period of 12 yeas under the Limitation Act for a suit expired. As they have not done so, and allowed Bala Mallaiah who was a third party, to acquired title to their shares also and hence, evening assuming that the sale deed dated 23.11.1959 was hit by lis pendens, as held by the Apex Court, the plaintiffs cannot stop the running of time under the Limitation Act in the absence of any provisio to that effect in the Limitation Act. Hence, on and from 24.11.1971, the sharers lost their title if any, as claimed by them in favour of Bala Mallaiah, thus disentitling them for passing of the final decree in their favour.

With these averments, the impugned common order was sought to be set aside.

On the other hand, Sri Challa Sitaramaiah, Senior Advocate appearing for the respondents – decree holders, while referring to the relationship between the parties and the events resulting for filing of the suit for partition, submitted that as per the Mohammodan Law, the estate i.e., the matruka property devolves on the heirs of late Nawab at the moment of his death. The heirs succeeded to the estate as tenant-in-common in specific shares i.e., shares in proportion ordained by Mohammodam law, a share in each of the items of the property. In tenancy-in-common, there is only unity of possession, unlike joint tenancy. Joint Tenancy has unity of possession, unity of interest, unity of time and unity of title. They become independent owners of their specific shares; one heir cannot represent the others. Any sale by heir of the deceased of any item of property is not binding on the other sharers.

He stated that Nawab died in 1935 and several persons other than the widow, the five sons and the three daughters claimed a share in the property claiming to be the heirs of Nawb.

Hashim Alikhan and Mohammad Alikhan two sons of Noorunnisa Begum filed a suit in 1935, for dividing the properties into three schedules. Schedule A consisted of buildings and lands, schedule B consisted of agricultural lands, and schedule C consisted of movable properties.

The first defendant (D-1) claimed an exclusive right to certain items, items 6 and part of item 7 of A schedule and part of item 1, and items 3,5,7 and 16 to 19 of schedule B. Item 3 of B schedule is the same as part of item 7 of A schedule.

He stated that D-1 applied for mutation of his name to the items of property claimed by him exclusively and other items also in schedule B. D-1 obtained pattas for these lands including items 4 and 6 of B schedule.

But the trial court negatived his claim and held that D-1 does not acquire any special right if patta was granted in his name and that it is matruka left by the deceased and liable for division between the parties. Referring the preliminary decree, he submitted that including item no.6 of plaint schedule was liable for partition.

He stated that the other purchasers of the suit schedule were also not impleaded in the suit and the decree for partition includes the items sold by D-1 pending the suit.

He further stated that the plaintiff, D-3, D-4, D-6, D-16, D-17 and L.Rs. of D-2, assigned the decree, and the assignee filed a petition to execute the decree. It was objected to by the alienees from Mr. Upender Reddy. The claim of the assignee of the decree was upheld in L.P.A.No.104/1997 (12 supra) The SLP No.3558/99 filed against L.P.A.No.104/1997 was dismissed by the Supreme Court) He further pointed out that none of the purchasers from D-1 were made parties and though it is contended that they are the necessary parties, the same was negatived and the trial court held that the suit was not bad for mis-joinder of parties. The 1st defendant died pending the disposal of the suit in 1964. D-23 to D-25 were brought on records as his legal representatives. The said legal representatives of D-1 filed CCCA.No.27/1972 questioning the findings against D-1 in respect of item 6 and part of item 7 of A schedule, items 5, 7, 16, to 19 and some survey numbers in item 1 of B schedule. The 6th defendant filed cross objections in respect of item 4 of A schedule. The appeals were dismissed and the cross-objections were allowed.

Therefore, the position is that, D-1 had no exclusive title to any of the items of property claimed by him in B schedule. He further contended that D-1 did not claim any exclusive right to item 4 and 6 of B schedule. He obtained patta for this land along with the other lands in different items of B schedule. He stated that the finding that the patta in the name of D-1 is ineffective and it is Matruka and liable for division, had become final.

He contended that the decree in appeal supersedes the decrees of the trial court. It makes no difference whether the appeal relates to the entire subject matter or only to a part thereof. In support of this contention, he relied on the judgments reported in KRISTNAMA CHARIAR (Decree Holder) v. MANGAMMAL[13], KANNIAMMAL v. BALAKRISHNA[14] and KUNJAMMAL v. KRISHNA CHETTIAR BY AGENT, VELAYUDHAM PILLAI[15].

With regard to lis pendens he submitted that in 1935 suit for partition was laid and in 1951 the suit was sent to the City Civil Court, Hyderabad and the 2nd plaintiff migrated to Pakistan. He was declared as an evacuee. Some of the witnesses were examined in 1953 and 1954. The record was sent to the custodian of the evacuee properties. Subsequently on 8.1.1955, the suit was closed. He stated that there is distinction between the order ‘closed’ and the order of ‘dismissal’. Relying on the judgments reported in VELUSAMI NAICKEN v. BALASUBRAMANIA CHETTIAR[16], MADRAS PERIANAN CHETTIAR v. LAKSHMANAN CHETTIAR[17], SREENIVASALU v. NATARAJA[18] a n d PENTAPATI CHINA VENKANNA v. PENTAPATIBANGARARAJU[19].

He further submitted that during the pendency of the suit for partition, it was alleged that D-1 leased out the lands in item 6 of B schedule to one Bala Mallaiah in 1953 and subsequently sold the land to the statutory tenant, on 23.11.1959 after obtaining permission under Sections 47 and 48 of the A.P.(TA) Tenancy and Agricultural Land Act, 1950. He contended that this sale dated 23.11.1959 was during the pendency of the suit and hence not binding on the parties and a alienee pending a suit even if he is not a party, is bound by the decree. He, the alienee, has no right to seek addition to the proceedings. It is the court’s discretion. In support of this contention, he relied on the judgment reported in SANJAY VERMA v. MANIK ROY AND ORS.[20] and PARMESHARI DIN v. RAM CHARAN[21] and CHAPPIDI SUBBAREDDY (died) v. CHAPPIDI NARAPUREDDY[22].

He further contended that a representation by a party to the suit that he was the sole owner and that no suit was pending in respect of the property and the purchaser on the strength of that representation purchased the property will not make any difference. In support of this contention, he relied on the judgment reported in RAJ KUMAR v. SARDARILAL[23]. He contended that even the plea that he was a bona fide purchaser for value without notice, will not make any difference.

He contended that tenancy created pending the suit and recognized by the authorities and entered the name of Bala Mallaiah in the record of rights will not take it out of Section 52 of T.P. Act. In support of his contention, he relied on the judgments of the Apex Court reported in VENKATRAO ANANTDEO JOSHI v. MALATIBAI[24] and RAM HARAKH v. HAMID AHMED KHAN[25]. He further contended that Pending a suit if a party to the suit alienates the property and the parties compromise the subject matter, even then Section 52 operates. In support of his contention, he relied on the judgment reported in GOURI DUTT MAHARAJ v. SUKURMOHAMMED[26].

He further contended that the proposition canvassed on the assumption of fact that the order was one of dismissal for default and a sale between the dates of dismissal of suit for default and restoration is not affected by lispendese, cannot be accepted and in support of contention, he referred to Section 52 of T.P. Act and Order 21, Rule 102 of C.P.C.

Therefore, he contended that the alienation pending the suit is bad and is not binding, the position of subsequent alienees is still worse.

With regard to report of the Advocate Commissioner, he submitted that on 22-12-1993 a warrant was issued to divide the property in item 6 of B schedule in accordance with the decree and deliver possession. The Commissioner gave notice to all the persons in possession. They refused the notices. The property was divided and symbolical possession was given to the parties. The report said it was a stretch of open land. The advocate for Surya Developers filed Xerox copies of documents including the sale deed dated 23.11.1959. The Advocate Commissioner observed that it was ‘pendente lite’. He contended that the Advocate Commissioner did not decide the issue and further the report along with the notices were filed in court on 28.11.1993. The report forms part of the record in the suit. The proceedings and the repot shall be evidence in the sit. No one contradicted the contents of the report. Therefore, he contended that the the contention of the appellant’s counsel that the Advocate Commissioner exceeded his jurisdiction, is not tenable. He drew the attention of this court to Order 26, Rules 10(2), Rule 12(2), R 12, R,14 and R-16 of C.P.C. He stated that the appellants filed a petition to implead themselves in the proceedings only in 2001 i.e., I.A.No.978/2001. The Advocate Commissioner was not called and cross-examined.

He further submitted that Bala Mallaiah’s son and others filed suit in the year 1993 in O.S.No.294/1993 on the file of the City Civil Court, Hyderabad for an injunction against some of the defendants and others, restraining them from interfering with their possession of the property sold under the sale deed dated 23.11.1959 an extent of Acs.68-10 guntas.

The specific allegation was that they entered into development agreement with some developers and the land handed over to them was a total extent of Acs.13-17 guntas in S.No.68/P and Acs.12-31 gts. in 69/P and another Acs.6-00 in 69/P, the total extent of Acs.31-08 gts. They sold an extent of Acs.6-00 in S.No.70 to one Peda Ramulu. They further allege that an extent of Acs.6-00 in S.No.68, Acs.13-22 gts in S.No.70, Acs.11-20 gts in S.No.63 is in their possession and enjoyment. This total area comes to Acs.31-02 gts. The suit was dismissed on 8.6.1998. There was an appeal and a second appeal in S.No.465/2001. Pending the second appeal, the family members, sons of Bala Mallaiah and others filed I.A.No.978/2001 in I.A.No.854/84 in O.S.No.42/62 on 16.7.2001 to implead them as parties to the final decree proceedings and they repeat the allegations made in O.S.No.294/93. It was repeated that they were in possession of Acs.31-02 gts in S.No.63, 68 part and 70 part.

He further pointed out that Bala Mallaiah was not the statutory tenant and the same was also noticed by the Apex court in BODDAM NARSIMHA v. HASAN ALI KHAN (4 supra).

The sale deed was during the pendency of the suit. That D-1 had no right to sell beyond his share. His share is only Acs.9-13 gts. That their suits and the land grabbing cases were all dismissed. They could be added as parties as they are entitled to an extent of Acs.9-13 gts.

He contended that the courts below have rightly considered that the plea raised by the appellants that the decree holders have not complied with A.P. Land Reforms (Ceiling and Agricultural Land) Act, 1973 and rejected the same. He stated that in the final decree dated 7.7.2005, the court directed ’the vendees and his alienees rights will have to be worked out within the share of D-1 allotted to him by the Commissioner in the report. He stated that as per the report of the Commissioner, the legal heirs of 1st defendant are entitled to Acs9-13 gts and the appellants have to work out their claim within the said share.

The final decree has been engrossed on judicial stamp worth Rs.100/- and the remaining stamp duty of Rs.4,47,600/- has been deposited.

He contended that the preliminary decree had become final. The final decree regarding all the other items had become final except item 6 of the B plaint schedule, as the present appeals were filed.

With regard to adverse possession, he submitted that the estate of Nawab vested in the heirs as tenants-in-common. The possession of one co sharer is the possession of all the co sharers. The person in possession is a trustee. D-1 sold the property to Bala Mallaiah. The transferee stands in the shoes of the alienor – D1. The purchaser of the property acknowledges the title of his vendor. Possession of the vendee will be referred to such title and would not be treated as the possession of a trespasser. The concept of co-parcener interest of a coparcenery, bear no analogy to a tenancy in common and a co-sharer especially when the co-sharers are muslims. He stated that there is no plea of ouster. No evidence was lead to prove ouster.

With these averments, the appeals were sought to be dismissed.

Having regard to the above facts and circumstances and rival contentions, the second appeal is admitted in view of the following substantial questions of law:

1. Whether the registered sale deed dated 23.11.1959 in favour of Bala Mallaiah made by D-1 in O.S.No.42/1962 is hit by doctrine of ‘lis pendens’ under Section 52 of the Transfer of Property Act?

2. What would be the effect of the decision of the Apex Court dated 25.1.2007 in Civil Appeal No.3429 of 2002 regarding the finding of inter se dispute between Bala Mallaiah and others?

3. Whether the respondents herein, being the plaintiffs in O.S.No.42/1962, are entitled for any relief for their own conduct, without amending the plaint in O.S.No.42 of 1962, in not asking for setting aside the sales in favour of the purchasers in possession, in spite of the plea taken by D-1 in his written statement that some of the purchasers are in possession of the property?

Whether the respondents/plaintiffs are entitled for any relief in the absence of any plea questioning the sales made in favour of the subsequent purchasers?

Whether the appellate court in A.S.No.387 of 2006 is right in not considering the authority of the Commissioner in holding that the possession of the appellants herein is “PENDENTELITE” and hit by doctrine of Lis Pendens under Section 52 of T.P. Act as observed in his report, without he being authorized by law?

Whether the findings arrived at by the Courts below are not based on the evidence on record? 7. Whether the post decree events be considered to do justice either in fact or in law, which has supervened since the judgment was entered?

Whether the appellants acquired title by adverse possession?

In order to consider the first substantial question of law, it is necessary to note the contentions of the respective counsel and few admitted facts and the relevant provision under T.P. Act and the case law.

The legal heirs of Nawab filed suit in the year 1935 for partition of matruka properties and the present suit schedule property is item no.6 of plaint B schedule properties. There is no dispute that late Nawab was the owner of all these properties. Though the suit was filed in the year 1935, before it was finally numbered in the year 1962, several interlocutory proceedings have taken place. The relevant portion in the judgment of the trial court is extracted as under for better appreciation: “25. The suit is pending from last 35 years and it is proper that the brief history of the pendency is arrayed. The suit was filed on 1st Amardad (1935 AD) in Darul Qazi Court, Hyderabad. The then Presiding Officer of the Court, Noorul Hasan moved the High Court for the transfer of the suit to any other court for the reason of his being the relative of late Md. Nawaj Jung. The High Court did not accept his proposal and he was directed to try the suit. He framed the charge on 19.3.1947 F. He decided the issue regarding the court fee against the plaintiffs and as the deficit court fee was not paid, so the plaint was rejected on 25.3.1347F. The plaintiffs went to appeal to the High Court. The High Court had set aside the order regarding the court fee on 26.4.1353F. D-1 went to appeal to the judicial committee against the order of the High Court. The appeal was dismissed in default in 1357F.

26. After the return of the file from judicial committee, D-1 did not appeal in the court and the ex parte judgment was passed against him on 7.3.1358F. The ex parte judgment was later set aside by the court on 11.3.1359F. The first plaintiff was examined as P.W.1 on 28.8.1950. Further proceedings could not take place, as the Darul Qaza Court was abolished and the file was sent to the High Court. The High Court had sent the file to the Chief Judge, City Civil Court in 1951 when the original jurisdiction of the High Court was abolished.

27. The then Chief Judge, City Civil Court, recorded the evidence of sworn witnesses during 1953 and 1954. There were some proceedings before custodian of the evacuee properties. The record was sent to him. The plaintiff did not appear in the court and the suit was dismissed on 8.1.1955. The plaintiff went in appeal to the High Court. The appeal was allowed in August, 1962.

28. When the suit came up for trial D-6, Sharefunisa Begum filed I.A.No.367 of 1963 on 23.3.1963 for permission to file additional written statement stating that she was minor at the time of the institution of the suit and that she was not properly represented by the court guardian who was a court Nazir. The application was allowed on 17.10.1963. D-6 submitted the additional written statement on 12.11.1963. D-6 filed I.A.No.63 of 1967 for permission to recall and cross examine the witnesses already examined. It was allowed on 5.8.1967. The witnesses were recalled and examined in the year 1968. The trial proceeded and other witnesses were examined in 1969. Subsequently some documents were sent to the hand writing expert for examination. The report was received in the year 1970. Finally the suit has come to the final stage now.”

From the above it could be seen that though the suit was instituted in 1935, due to dismissal of the suit for number of times and for other reasons, it could be numbered only during the year 1962 when the dismissal of the suit on 8.1.1955 for non-prosecution of the plaintiff, was set aside in August, 1962. Therefore, there is long duration of seven years after the dismissal of the suit for default on the part of the plaintiff and before its restoration in the year 1962.

Here the case of the appellants is that the 1st defendant in the suit – Md. Hamid Ali Khan sold the lands in item no.6 of the plaint B schedule properties to one Bala Mallaiah, who was a lessee to the said lands, on 23.11.1959 under a registered sale deed, for a consideration of Rs.2,000/-. This sale is during the interregnum period of dismissal of the suit for default on 8.1.1955 and before its restoration in August, 1962. Therefore, the case of the appellants is that as on the date of the sale, no suit is pending, and hence the sale is not hit by the principles of lis pendence. In support of this contention, he relied on the judgments of the Apex Court reported in JAYARAM MUDALIAR v. AYYASWAMI (1 supra), VAREEDJACOB v. SOSAMMA (2supra) and NANDIPATI RAMI REDDY v. NANDIPATI PADMA REDDY (3 SUPRA). On the other hand, the contention of the learned counsel for the respondents – plaintiffs – decree holders is that the sale dated 23.11.1959 was during the pendency of the suit and hence the sale is not binding on the parties to the suit and Lis pendens operates. There is no dispute with regard to the contention of the counsel for the respondents with regard to operation of lis pendens if the sale is made during the pendency of the suit. But there is subtle difference in the facts of the present.

In order to the see whether the sale is hit by lis pendense, it is necessary to first note Section 52 of T. P. Act. The same is extracted as under for ready reference:

52. Transfer of Property pending suit relating thereto:-- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceedings which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any part to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation:--For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”

From the above provision it is clear that during the pendency of the suit or proceedings, which is not collusive and in which immovable property is directly and specifically in question, such property cannot be transferred or otherwise dealt with by any party to the suit or proceedings, except with the authority of the court and on such terms as it may impose and as per the explanation the ‘pendency of the suit or proceeding’ shall be deemed to commence from the date of presentation of the plaint or its institution in a competent jurisdiction and to continue until the suit or other proceedings has been disposed of by a final decree.

Interpreting the concept of lis pendens enunciated under Section 52 of the T. P. Act, the Apex court in the decision reported in Jayaram Mudaliar case (1 supra) held at paragraphs 46 to 49 as under: “46. It has been pointed out, in Bennet “On lis Pendens”, that, even before Sir Fransis Bacon framed his ordinances in 1816” for the better and more regular administration of justice in the chancery, to be daily observed” stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and enforced by Common Law Courts. Bacon’s Ordinance on the subject said:

No decree bindeth any that commenth is bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor the order; but, when he comes into pendenti lite, and, while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice

. The doctrine, however, as would be evident from Bennett’s work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim: “Ram de qua controversia probibemur in acrum dedicate” (a thing concerning which there is a controversy is prohibited, during the suit from being alienated). Bell, in his Commentaries on the Laws of Scotland, (2 Bell’s Com. On Law of Scotland, P.144) said that it was grounded on the maxim: “Pendentilite nihil innovandum”. He observed:

It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendency of an action, of which the objects is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced.

47. In the Corpus Juris Secundum (Vol.LIV P.570), we find the following definition: “Lis Pends literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit, pending the continuance of the action, and until final judgment therein”.

48. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous.

49. It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down: “During the pendency in any Court . . . . . of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.”

The Apex Court in another judgment in AMIT KUMAR SHAW v. FARIDA KHATOON[27] held at paragraph no.15 as under: “15. Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendentelite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This Section is based on equity and good conscience and is intended to protect the parties to litigation against alienation by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present: 1) There must be a suit or proceeding pending in a Court of competent jurisdiction; 2) The suit or proceeding must not be collusive; 3) The litigation must be one in which right to immovable property is directly and specifically in question; 4) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation; 5) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.”

The quintessence of the above judgments is that if as on the date of transfer or dealing with the immovable property, the suit which is not collusive and in which such property is directly and specifically in question, is pending before a court of competent jurisdiction, then such transfer or dealing with the improvable property by the parties to the litigation, without the leave of the court, is prohibited and hit by the principles of lis pendens.

The main criterion for the application of the doctrine of lis pendens is that the suit in respect of such immovable property, shall be pending. In the present case, as already noted above, the suit was dismissed on 8.1.1955 for default on the part of the plaintiff and it was restored only in August, 1962 i.e., after a period of about seven years.

Whether the defendant no.1 can sell the property beyond his share is another question to be discussed, vis-à-vis the conduct of the parties, but presently, it is necessary to decide the question whether the suit is hit by lis pendens.

During the pendency of the suit for partition, D-1 leased out the lands in item 6 of B schedule to one Bala Mallaiah in 1953. The plaintiff in the item no.6 of plaint B schedule also has shown that it is leased. Subsequently the 1st defendant sold the land on 23.11.1959 after obtaining permission under Sections 47 and 48 of the A.P.(TA) Tenancy and Agricultural Land Act, 1950. This sale is during the interregnum period of dismissal of the suit for default and before its restoration. Therefore, it is clear that as on the date of sale transaction, no suit was pending pertaining to the land in question. In such circumstances, the question arises is whether the sale in favour of third parties is valid after the suit is restored to file, in the absence of any amendment to the plaint seeking declaration for cancellation of such sale deed.

Considering a situation of the similar nature, a Division Bench of this court in NANDIPATI RAMI REDDY v. RANDIPATI PADMA REDDY (3 supra) held as under:

9. In regard to the illustrations given by Sri Bapi Raju, the position stands differently. When the suit stood dismissed and before restoration if the defendant has made some alienations, the alienations would not ipso facto become invalid and unenforceable on the restoration of the suit. The plaintiff will have to take other appropriate proceedings to avoid that alienation. That is because when the alienation was made it was in accordance with law and not contrary to any order of the Court. Further, the rights of strangers or third parties are brought into play during that time and simple restoration of the suit would not ipso facto effect the validity of the alienation. Likewise, when there was an injunction before the dismissal of the suit, if the defendant enters upon possession of the suit land after the dismissal of the suit for default, no proceedings for contempt of Court can be taken against him after the restoration of the suit. That is also because the defendant entered upon possession of the land after the suit was dismissed and when the injunction order was not actually in force though it was revived later with the restoration. But these instances or illustrations cannot affect the general rule that when the suit is restored the interlocutory orders and their operation during the period of interregnum are revived.

The Apex Court in another judgment reported in VAREED JACOB v. SOSAMMA (2 supra) held at paragraph no.18 as under:

18. In the case of Saranatha Ayyangar vs. Muthaiah Moopanar and others reported in AIR 1934 MAD. 49, it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as the matter of general rule on restoration of the suit dismissal for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.

From the above decisions of Division Bench of this court and the Apex Court (2 and 3 supra) it is clear that if the suit stood dismissed for default and before its restoration, if any alienations are made, the same will not get automatically invalid and unenforceable on the restoration of the suit, since as on the date of the sale transaction, no suit was pending and such transaction is not contrary to any orders of the court. During such interregnum period, by sale transaction pertaining to the property in litigation, the rights of third parties are brought into play. Therefore, after the restoration of the suit, unlike other interlocutory orders, which stands restored, the affected parties will have to take appropriate proceedings to avoid that alienation. Therefore, the Apex Court held that

that as the matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived, unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.

In the present case, after the suit was restored to file, the plaintiffs or the other defendants, did not take any steps for getting the sale deeds declared as null and void in accordance with law and they kept quiet. It is also well settled that registration is a notice to public in general, as per explanation to Section 3of the T.P. Act.

Therefore, following the above judgments of the Apex Court and the Division Bench of this court, as the plaintiff and other defendants did not take any steps for declaring the sale made during the interregnum period, as null and void, the sale made by 1st defendant in favour of Bala Mallaiah, after obtaining necessary permission under Sections 47 and 48 of the A.P. (TA) Tenancy and Agricultural Land Act, 1950, cannot be said to be hit by the ‘principles of lis pendens’ and the substantial question of law framed in this regard, is answered in favour of the appellants and the findings of the courts below that the sale made in favour of Bala Mallaiah is hit by lis pendens, cannot be sustained and the said findings are liable to be set aside.

The next substantial question of law framed is with regard to the decision of the Apex Court in Civil Appeal No.3429 of 2002 regarding the findings of the inter se dispute between Bala Mallaiah and others.

During the pendency of the suit, the 1st defendant leased out the Madhapur lands to Bala Mallaiah and these lands are shown as item no.6 of plaint B schedule property. In the said item of the schedule, it is specifically shown that these lands are leased out. However, the 1st defendant sold these lands under registered sale deed dated 23.11.1959 to Bala Mallaiah. Bala Mallaiah died in the year 1975. His nephew one Boddam Narsimha after making unsuccessful attempts before the revenue authorities and in a revision before this court, eventually approached the Apex Court in Civil Appeal No.3429 of 2002 for grant of ownership certificate under Section 38-E on the ground that Bala Mallaiah was a protected tenant and that he was cultivating along with his brothers. To the said proceedings, the present plaintiff and other defendants were parties. The Apex Court rejected the claim of the nephew of Bala Mallaiah that he was a protected tenant, on the ground that Bala Mallaiah became pattadar by virtue of the sale deed dated 23.11.1959.

2. Pursuant to the preliminary decree, an Advocate Commissioner was appointed in the final decree proceedings vide I.A.No.854/84 in sit No.42/62. On 28.11.1993 the said Commissioner came to the suit site to measure the lands. At that stage the L.Rs. of Bala and his 2 brothers instituted a suit for permanent injunction against the respondents herein being suit no.294/93 which was dismissed on 8.6.1998. The important fact to be noted is that the plaintiffs in the said suit did not allege Bala to be a protected tenant. Bala had two brothers, namely, Agaiah (father of the appellant) and Komariah.

3. Subsequently, the Vendees (K.Sambasiva Rao and Ors.) who claimed title through the L.Rs. of Bala and his two brothers institued another suit for permanent injunction against the respondents herein. The suit was dismissed on 8.6.1998.

4. The L.Rs. of Bala and his two brothers filed one more application before the special Court under the Land Grabbing (Prohibition) Act, 1982, which was dismissed by the Special Court vide order dated 13.5.1997.

5. Having failed in the above two proceedings, an application was moved on 16.12.1998 before the Tribunal (R.D.O.) Ranga Reddy District seeking a declaration of protected tenancy under Section 37-A of the Tenancy Act. This application was moved by the present appellant. In the said application, it was alleged for the first time that late Bala was a protected tenant. By the said application, the appellant also asked for an Ownership Certificate under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (“the Act’) as amended from time to time. In other words, the appellant herein invoked the said Act for the first time on 16.12.1998 though Section 37-A stood incorporated in the tenancy law by way of an (Amendment) Act, 1955, which came into force on12.3.1956.

12. For the following reasons, we do not find any merit in the above contentions.

13. Bala was a kaul who had taken an annual lease from Hamid Ali Khan. He was a tenancy-at-will. This was during the pendency of the partition suit. He became a pattadar vide conveyance dated 23.11.1959. The kaul itself indicates, that Bala was to cultivate in his individual capacity; that at the end of the year, Bala had to return the lands to the owners; that Bala was not given the right to include any other cultivator. Therefore, there is no merit in the contention of the appellant that Bala was jointly cultivating the suit lands with his two brothers Agaiah (father of the appellant) and Komarraiah. Further, between tenancy and the conveyance, there was a time gap. Hamid Ali Khan was a pattedar. His rights were purchased by Bala vide conveyance dated 23.11.1959, therefore, on 1.1.1973, when the notification came to be issued, Bala was not the tenant. He was a pattedar. Moreover, appellants herein is not the L.R. of Bala. Bala was his paternal uncle. At no point of time, even the LRs. Of Bala had claimed that Bala was a protected tenant. It is evident from Section 38-E that the said section has been enacted for those protected tenants who are declared to be protected tenants and included in the Register prepared for that purpose. A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to a ownership certificate under Section 38-E. . . . .” . . . . . .

From a reading of the above judgment it could be seen that the Apex Court rejected the claim of the nephew of Bala Mallaiah for grant of ownership certificate under Section 38-E, on the ground that Bala Mallaiah was not the protected tenant and by virtue of the conveyance deed dated 23.11.1959, he had become the pattadar. Therefore, the Apex Court in the said judgment, has recognized that Bala Mallaiah was the pattadar of the land in question. Before the Apex Court, the plaintiffs and others were the parties and the finding of the Apex Court to this effect, binds the parties.

It was further observed by the Apex court that the 1st defendant in the suit was the pattadar and his rights were purchased by Bala Mallaiah through the conveyance deed dated 23.11.1959 and therefore, when the notification came to be issued, Bala Mallaiah was not the tenant and he was the pattadar. The dispute before the Apex Court in the above Civil Appeals was an inter se dispute between Bala Narasimha, nephew of said Bala and subsequent purchasers under the tenancy rights, which has no bearing on the subject matter herein, for the reason that the Apex Court has categorically held that Bala Mallaiah was the pattedar having purchased the lands from D-1 in the suit. Therefore, the judgment of the Apex Court with regard to the declaration of Bala Mallaiah as patteda,r would bind on all the parties, which has become final and more so when the plaintiffs have not taken any steps to get the sale transactions cancelled in accordance with law. Further, the lower appellate court erroneously observed that either the lease granted to Bala Mallaiah in the year 1952 or the subsequent sale deed executed by D-1 in favour of Bala Mallaiah, are not brought for consideration of the court. This observation, is contrary to the material on record, in view of the averment made by the 1st defendant in his written statement that he sold certain suit schedule properties to Bala Mallaiah and also to some others and the purchasers are in possession of the same. So, from the above it can be observed that the dispute with reference to Section 38-E certificate in the said proceedings is an inter se dispute between the nephews of Bala Mallaiah and the subsequent purchasers. Further, the said entries in any of the revenue records were not challenged by the plaintiff nor the contesting defendants, even though they had the knowledge about the sale transactions and both parties failed to take appropriate steps. Therefore, the judgment of the Apex Court in Civil Appeal No.3429/2002 dated 25.1.2007 reported in BODDAM NARSIMHA v. HASAN ALI KHAN (DEAD) BY LR AND ORS. (4 supra), with regard to ownership of Bala Mallaiah, is binding on all the parties, which has attained finality.

Therefore, though the judgment of the Apex Court in Civil Appeal No.3429/2002 dated 25.1.2007 reported in BODDAM NARSIMHA v. HASAN ALI KHAN (DEAD) by LR AND ORS. (4 supra), will not operate as res judicata with regard to ownership of Bala Mallaiah, the courts below ought to have taken this factor into consideration as judicial precedent, while dealing with the rights of third parties, whose purchase was during the time, when no suit pertaining to the suit schedule property was pending and even after its restoration, the plaintiff who was deemed to have knowledge of the sale transaction, failed to take appropriate steps. In view of these circumstances, the substantial question of law framed in this regard is answered accordingly in favour of the appellants.

The next substantial question of law is with regard to the conduct of the parties. In the present case, as already held above, the sale made by D-1 in favour of Bala Mallaiah was not hit by lis pendens and the plaintiffs ought to take appropriate steps for getting the sale set aside by making necessary amendments to the plaint.

Apart from that it is to be noticed that the defendant no.1 in his written statement has categorically averred that he is possession and enjoyment of patta lands which are not matruka properties and that the patta was granted in his name in spite of the objection by the plaintiff. However, the claim that the defendant no.1 was the pattadar, was negatived in the preliminary decree. But certain facts are to be carefully noticed to find out the conduct of the parties and their entitlement for a final decree in respect of item no.6 of plaint B schedule property. The defendant no.1 sold the Madhapur lands admeasuring Acs.69.10 guntas under registered sale deed dated 23.11.1959. Under the explanation 1 of Section 3 of the Transfer of property Act, the plaintiffs and other heirs of late Nawab, are deemed to have knowledge of sale, since the said provision contemplates constructive notice in case of registration of a document. Further when the suit was dismissed and thereafter restored to file, the plaintiffs ought to have impleaded Bala Mallaiah to the suit and they cannot seek decree behind his back. Since Bala Mallaiah is not a party to the suit, as his purchase is not hit by lis pendense, he cannot be said to be bound by the decree. However, the court found that the purchasers of the suit land are not necessary parties and the defendant no.1 has to account for the monies realized. Therefore, it is clear that the other purchasers under Exs.B- 2 to B-9 were allowed to enjoy the title to the property and the 1st defendant was mulcted with liability to account for the monies realized by virtue of those sales. It is to be further noticed that the defendant no.1 brought to the notice of the court other sale deeds, and he had also submitted in his written statement that he sold some of the lands and purchasers are in possession. The defendant no.1 has not suppressed the sales. The plaintiffs have the knowledge of sales. They did not act in accordance with law to set aside the sales. They kept quiet for such long years.

Coming to the case of the plaintiffs, they can be deemed to have notice of sale made by the 1st defendant by virtue of the explanation 1 to Section 3 of the Act. Even apart from that, the defendant no.1 had categorically stated that some of the purchasers are in possession of the property. Further as per the plaint B schedule property, the plaintiffs have shown that item no.6 of the plaint B schedule was leaded out and that it is in the possession of the tenants. In spite of these facts, the plaintiffs did not implead the persons in possession of the property and even after the sale made by D-1 in favour of Bala Mala Mallaiah, during the interregnum period of dismissal of suit for default and before its restoration, they did not make any amendment to the plaint and sought for any declaration for setting aside the sale made in favour of Bala Mallaiah. Therefore, having knowledge of the events and keeping quiet and inviting a finding from the court and during the course of events, inviting a finding even for the Apex Court that Bala Mallaiah was the pattadar, and thereafter agitating about the rights, cannot be appreciated. As the plaintiffs did not seek for setting aside the sale made in favour of Bala Mallaiah and also the subsequent purchases, they are not entitled for any relief for their own conduct. Accordingly 3rd and 4th substantial questions of law are also answered in favour of the appellants.

It is to be noticed that Bala Mallaiah was in possession of the property during his life time upto 1975 and during his life time there was no threat to his title and possession and further his heirs after obtaining permission from HUDA, sold the plots till 26.11.1993. The heirs of Bala Mallaiah and the subsequent purchasers were not aware of the suit proceedings between the heirs of late Nawab. When the Advocate Commissioner who was appointed by the trial court came to the land and gave notice, they came to know about the proceedings and immediately they resorted to filing of the suits and other proceedings, which ultimately ended, directing the parties to work out their remedies in the final decree proceedings to be passed. Accordingly they filed I.As and got impleaded. It is to further to noticed that during the process of execution of the warrant by the Advocate Commissioner, he found that the property is in possession of the third parties and objections were filed before him. In such circumstances, as contended by the counsel for the appellants, the Advocate Commissioner ought to have returned the warrant to the court. In stead of this, the Advocate Commissioner in his report held that the sale deed dated 23.11.1959 was hit by lis pendens, without any justification and authority. This report of the Advocate Commissioner, though not objected to in the proceedings before the trial court, is clearly an excess exercise of jurisdiction.

The other contention of the counsel for the appellants is that the appellants perfected the title by adverse possession. He submitted that the plea of the plaintiffs is that the sale deed dated 23.11.1959 is hit by lis pendens, and that their possession would not be adverse, depriving them of their title of those lands, cannot be sustained for the reasons that the plaintiffs failed to implead Bala Mallaiah in the suit and that he continued in his own right as pattadar since

23.11.1959 and continued as such till death in the year 1975 and that he is in possession of those lands for over 16 years as owner and his possession being open, adverse, hostile, continuous and exclusive, he perfected his title by adverse possession, even assuming that his title under the sale deed dated 23.11.1959 was imperfect. While referring to orders of the Mandal Revenue Officer and the Joint Collector, he submitted that the Bala Mallaiah was in possession and revenue records also show his possession as pattadar and after his death, his heirs converted the land into plots with the permission of HUDA and, therefore, as Bala Mallaiah and his heirs were in possession by asserting their ownership, they perfected the title by ownership. Further, it is not the case of heirs of late Nawab that the plaintiffs were ever in possession or objected the possession of Bala Mallaiah. Therefore, he contended that Bala Mallaiah perfected the tile by advese possession.

The contention of the learned counsel for the respondents is that heirs of Nawab are the tenants in common and that possession of one co sharer is the possession of all the co sharers and the person in possession is a trustee and that transferee from one co-sharer stands in the shoes of such sharer i.e., D-1 and the purchase of the property is acknowledging the title of the vendor. There is no dispute with regard to this proposition. But the facts in the present case do not strictly fit into the proposition raised by the learned senior counsel and they are slightly in a different angle.

As already noted above, the defendant no.1 sold the property as his own and that the sale was during the interregnum period of dismissal of the suit for default and before its restoration. Further as per the explanation to Section 3 of the T.P. Act, registration is a constructive notice to the plaintiffs and they did not take any steps to implead the purchasers. Therefore, since the date of purchase, Bala Mallaiah was in possession and upto his death in the year 1975, there was no threat to his possession and his heirs and their subsequent purchasers were also in possession in their own right and the revenue records also show that Bala Mallaiah was in possession since 23.11.1959 and it is not the case of the plaintiffs that they were ever in possession of the property. Bala Mallaiah was pattadar since 23.11.1959 and continued as such till death in the year 1975 and that he is in possession of those lands for over 16 years as owner and his possession being open, adverse, hostile, continuous and exclusive, it can be said that he perfected his title by adverse possession. Further, the plaintiff and the defendants in the suit sailing with him, cannot plead lis pendens and as per the judgment of the Apex Court to be referred below, pendency of the litigation, cannot arrest the running of limiting for the claim under adverse possession.

The Apex Court in the decision reported in RAJENDAR SINGH v. SANTA SINGH[28] held at paragraph nos. 16 to 19 as follows: “16. It is very difficult to view the act of taking illegal possession of immovable property or continuance of wrongful possession, even if the wrong doer be a party to the pending suit, as a ‘dealing with, the property otherwise than by its transfer so as to be covered by Section 52 of the Transfer of Property Act. The prohibition which prevents the immovable property being “transferred or otherwise dealt with” by a party is apparently directed against some action which would have an immediate effect’ similar to or comparable with that of transfer; but for the principle of lis pendens. Taking of illegal possession or its continuance neither resemble nor are comparable to a transfer. They are one sided wrongful acts and not bilateral transactions of a kind which ordinarily constitute ‘deals’ or dealings with property (eg. contracts to sell). They cannot confer immediate rights on the possessor. Continued illegal possession ripens into a legally enforceable right only after the prescribed period of time has elapsed. It matures into a right due to inaction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed. This it’s the only mode of redress provided by law for such cases. Section 52 of the Transfer of Property Act was not meant to serve, indirectly as a provision or a substitute for a provision of the Limitation Act to exclude time. Such a provision could and would have been there in the Limitation Act, where it would appropriately belong, if the policy behind the law was to have such a provision.

17. The policy underlying statutes of limitation, spoken of as statutes of “repose” or of “peace”, has been thus stated in Halsbury’s Laws of England Vo. 24, p.181 (para 330): “330. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitation namely, (1) that doing dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.

18. The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence’ or laches.

19. If Section 52 of the Transfer of Property Act was really intended to strike at the running of the period of limitation, based on the considerations mentioned above, it would have made it clear that the law excludes the period spent in any litigation from computation. Exclusion of time in computing periods of limitation is a different subject altogether to which the whole of Part III of Limitation Act is devoted. There, we find Section 14, which deals with “exclusion of time of proceeding bona fide in Court Without jurisdiction”. There are certain conditions for the applicability of Section 14 of the Limitation Act. One of these is that the plaintiff should have prosecuted, with due diligence, civil proceedings “founded upon the same cause of action”. In the case before us, the cause of action arose, according to the plaintiffs, after the decision of the previous suit. The cause of action is the previous suit was entirely different. Indeed, it was the defendants-respondents who had sought relief there and set up a cause of action. Section 14 of the Limitation Act of 1908, which is the only provision of the statute specifically dealing with exclusion of time spent in another litigation, could not obviously apply to the case now before us. The only mode of relief open to the plaintiffs was to have instituted a suit of their own within the prescribed period of limitation. They did institute the suit now before us but did so long after the period of limitation had expired. In such a case Section 52 of the Transfer of Property Act could not, in our opinion, apply at all. The matter could only be covered, if at all by some provision of the statute of limitation which, as already observed, makes no provision for such a case. Mere effect of Section 3 of Limitation Act is that it expressly precludes exclusion of time on a ground outside this Act even if it parades under the guise of a doctrine which has no application whatsoever here.”

From a reading of the facts of the above judgment of the Apex Court it could be seen that the respondents therein were the defendants in the suit filed by the plaintiff for recovery of possession. It was alleged in the suit that the defendants-respondents had taken illegal and forcible possession of the property after the decision of the High Court on

21.11.1958, dismissing their defendants/respondents earlier suit filed against the appellants for declaration of title and recovery of possession. It was found in that case that the case set up by the appellant/plaintiffs that the defendants/respondents took forcible possession after the High Court’s judgment on 21.11.1958 was not true, that the case of the defendants/respondents was that they were in possession for over 12 years prior to 16.4.1959 when the appellants/plaintiffs filed the suit for recovery of possession was there. Then the plaintiffs/appellants sought to contend for the first time before the first appellate Court that the possession of the defendants/respondents during the period of their earlier suit of 1940 was hit by lis pendense. The Apex Court, as already stated above, rejected that argument holding that Section 52 of the T.P. Act does not stop the running of time under the Limitation Act and held that the defendants/respondents therein prescribed their title by adverse possession. The Apex Court in the above decision, held that the only mode of relief open to the plaintiffs was to have instituted a suit of their own within the prescribed period of limitation had expired.

Following the analogy in the above judgment, the position that emerges is that the plaintiffs should have impladed Bala Mallaih in O.S.No.42 of 1962 or instituted a separate suit for recovery of possession or before 23.11.1971 when the prescribed period of 12 years under the Limitation Act for a suit expires. Since, they have not done so and on account of their inaction, they allowed Bala Mallaiah, who was a third party, to acquire title to their shares also, even assuming that the sale deed dated 23.11.1959 was hit by lis pendens, and as held by the Apex Court, the pendency of the proceedings, cannot stop the running of time under the Limitation Act in the absence of any provision to that effect in the Limitation Act itself. Hence, on and from 24/11/1971, the sharers lost their title if any, as claimed by them in favour of Bala Mallaiah, thus disentitled them to the passing of a final decree in respect of their shares as per the preliminary decree dated 24.11.1970. Further it is to be noticed that both the courts below did not advert to the aspect of adverse possession, though raised by the appellants. Therefore, the substantial question of law, is answered in favour of the appellants.

Further, as already noted above, with regard to the conduct of the parties to the suit, it is to be noticed that they brought to the notice of the court all the sales, which are made pendente lite under Ex.B-2 to B-9 and invited a finding at paragraph no.93 of the trial court judgment in O.S.No.42/1962. Further it is not a case that the plaintiffs were not aware of the sales by defendant no.1, as he himself as stated in the written statement that he sold some of the lands and purchasers were in possession of the land and the said purchasers were not impleaded. With regard to aspect of lis pendens, conduct of the parties, effect of judgment of the Apex Court in the Boddam Narsimha’s case (4 supra) and the aspect of adverse possession were dealt with. But certain other aspects are also required be noticed, which have supervened after the passing of the preliminary decree, in order to do substantial justice between the parties and to mould the relief accordingly.

In the decisions reported in RAICHARAN v. BISWANATH[29] NURI MIAH v. AMBIKA SINGH[30] it is observed that the doctrine has been recognized that there are cases where it is incumbent upon a court of justice to take notice of events which have happened since the institution of the suit and to mould the decree according to the circumstances as it stands at the time the decree is made. The principle will be applied where it is shown that the original relief claimed has by reason of subsequent change of circumstances become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten the litigation or to do complete justice between the parties.

In the decision reported in SURINDER KUMAR v. GAIN CHAND[31] it is observed that the hearing of an appeal is under the processual law of the country and is in the nature of rehearing and therefore in moulding the relief to be granted in appeal, an Appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed. In determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.

The Apex Court in LAXMI & Co. v. ANANTARAM DESHPANDE[32] held that: “Where the original relief has become inappropriate by subsequent events, the court can take notice of such changes. If the court finds that the judgment of the court cannot be carried into effect because of change of circumstances, the court takes notice of the same. If the court finds that the matter is no longer in controversy the court also takes notice of such event . . . . The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.

In view of the above judgments, as already noted, certain facts and events which have supervened since the judgment was entered, are required to be noticed.

As contended by the counsel for the plaintiffs, and also as evident from the judgment of the court below, the plaintiff, D-2, and D-3 filed declaration under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and in those declaration, they did not show that Madhapur lands i.e., the present lands in dispute, belong to them and further it is also admitted that notice under the Urban Land Ceilings Act were issued to legal heirs of Bala Mallaiah on 20.12.2003 in proceedings F1/4548/03 calling upon them to file a statement in form no.1 of Urban Land Ceiling Act. Therefore, it can reasonably be inferred that all the parties acquiesced that D-1 was the pattadar of lands in dispute and they did not also protest for issuing of notice under the Urban Land Ceiling Act. Further the sales were made upto the year 1993 and the third party purchasers came into possession of the property and when their possession was sought to be disturbed, they filed suits and though unsuccessful, they were given liberty to implead themselves in the final decree proceedings in O.S.No.42/1962 and agitate their rights. Further it is well settled that unless the final decree is passed, the suit is said to be pending and the preliminary decree only determines the rights of the parties and per the directions, the third party purchasers, got impleaded and raised the above substantial questions of law, which are answered in their favour and these events have made the passing of the decree in respect of item no.6 of plaint B schedule, impracticable.

Further, at the cost of repetition, it is to be noticed that had the plaintiffs and other defendants, brought to the notice of the court about the present sale by D-1 to Bala Mallaiah, it would have been covered by the direction of the trial court under paragraph no.93, mulcting the liability on the 1st defendant to account for the monies realized by him and Bala Mallaiah would have been made entitled to enjoy the title and possession. In view of the above facts and circumstances and the other events, which have supervened since the date of passing the decree, I am of the considered view that the appellants herein are entitled to claim their title through Bala Mallaiah, who was the pattadar through the sale deed dated

23.11.1959, as held by the Apex Court and all subsequent sales through the heirs of Bala Mallaiah. The respondents herein being the plaintiffs, are not entitled for any relief, as they have slept over their rights in not asking for cancellation of the sale deed dated 23.11.1959. Secondly their inaction in filing a suit for recovery of possession from the said Bala Mallaiah, more so when Bala Malliah was declared as pattadar by the Apex Court, would disentitle them in seeking for passing of a final decree.

Therefore, I am of the considered view that both the courts below without considering the material evidence available and the without adverting to the pleas raised by the appellants, have erroneously passed the final decree even with regard to item no.6 of the plaint B schedule in O.S.No.42/1962 and hence the same is set aside.

For the foregoing reasons, all the substantial questions of law are answered in favour of the appellants and the common judgment and decree dated 27.4.2007 passed by the court of III Additional Chief Judge, City Civil Court, Hyderabad, in A.S.Nos. 385 and 386 of 2006 in confirming the judgment and decree dated 7.7.2005 passed by the court of I Senior Civil Judge, City Civil Court, Hyderabad in I.A.No.854/1984 in O.S.No.42/1962, is set aside and the second appeals are accordingly allowed as prayed for. No costs. AVS ----------------------------- 15—04—2010