IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Seetharama Murti, J.
Nischint Constructions Pvt. Ltd. – Appellant
Versus
Khader Nawaz Khan – Respondent
Civil Revision Petition No. 2796 of 2017
Decided On : 18-01-2018
CIVIL REVISION PETITION - PARTITION SUIT - LIS PENDENS - APPOINTMENT OF ADVOCATE COMMISSIONER - CROSS-EXAMINATION - TRANSFER OF PROPERTY ACT, 1882, SECTION 52 - PRELIMINARY DECREE - FINAL DECREE - EXECUTION OF DECREE - JURISDICTION OF COURT - SCOPE OF INQUIRY.
Fact of the Case:
A partition suit was filed in 1987, and after several appeals and review petitions, the preliminary decree became final. During the pendency of the suit, the 12th defendant sold a portion of the property to the petitioners, who constructed a resort on the land. The plaintiffs, who were awarded a 1/4th share in the preliminary decree, filed an application for the appointment of an Advocate Commissioner to partition the property. The trial court appointed the Commissioner, and the petitioners filed a petition to summon the Commissioner for cross-examination, alleging that he was biased and had filed a one-sided report.
Finding of the Court:
The court held that the petitioners' contentions were baseless and that the Commissioner had acted fairly and in accordance with the directions in the warrant. The court also held that the petitioners, as purchasers pendente lite, were bound by the principle of lis pendens and could not claim any equities based on the developments they had made on the property during the pendency of the suit.
Issues: 1. Whether the petitioners could challenge the appointment of the Advocate Commissioner and seek his cross-examination. 2. Whether the petitioners, as purchasers pendente lite, were bound by the principle of lis pendens.
Ratio Decidendi: 1. The court held that the petitioners could not challenge the appointment of the Advocate Commissioner and seek his cross-examination because they had not laid any foundation in their affidavit to support their allegations of bias and unfairness. The court also held that the Commissioner had acted fairly and in accordance with the directions in the warrant. 2. The court held that the petitioners, as purchasers pendente lite, were bound by the principle of lis pendens and could not claim any equities based on the developments they had made on the property during the pendency of the suit.
Final Decision: The court dismissed the petition, holding that the petitioners' contentions were baseless and that the Commissioner had acted fairly and in accordance with the directions in the warrant. The court also held that the petitioners, as purchasers pendente lite, were bound by the principle of lis pendens and could not claim any equities based on the developments they had made on the property during the pendency of the suit.
ORDER :
M. Seetharama Murti, J.
1. This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful petitioners/defendants 14, 15 & 16 is directed against the orders, dated 22.03.2017, of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, passed in I.A. No. 551 of 2016 in I.A. no. 1507 of 2013 in O.S. no. 471 of 1987.
2. I have heard the submissions of Sri P. Sri Raghu Ram, learned senior counsel appearing for Sri P. Sri Ram, learned counsel for the petitioners 1 to 3; Sri Sunil B. Ganu, learned counsel appearing for the 3rd petitioner, with the consent of the learned counsel for the said petitioner; Sri M.V.S. Suresh Kumar, learned senior counsel appearing for Sri M.V. Pratap Kumar & A. Srinivasa Rao, learned counsel appearing for the respondents 2 to 7; Sri Dantu Srinivas, learned counsel for respondent no. 9; Sri M.A.K. Mukheed, learned counsel for respondent no. 16; and of Sri V.L.N.G.K. Murthy, learned senior counsel appearing for Sri P. Nageswara Rao, learned counsel appearing for respondent nos. 18, 20 & 21. I have perused the material record.
3. The parties shall hereinafter be referred to as arrayed in this civil revision petition and also as originally arraigned in the suit, for convenience and clarity.
4. To begin with it is necessary to state the introductory facts, which are as follows: 'The petitioners 1 and 2 herein are the defendants 14 and 15 in the aforestated original suit. The sole plaintiff/Khader Nawaz Khan (since died) brought the suit for partition initially against defendants 1 to 12 for partition of the property, that is, land in Sy. nos. 41, 42 & 43 admeasuring Ac.49.24 guntas at Kokapet village and for allotment of 1/4th share to him. The plaintiffs 2 to 7, that is, respondents 2 to 7 are his wife and children. The trial Court dismissed the suit. While the sole plaintiff's appeal was pending, 13th defendant/Syed Hussain Shaw was impleaded. The first appeal, A.S. no. 734 of 1991, was allowed by this Court, by judgment, dated 25.01.1996, and the suit for partition was preliminarily decreed allotting 1/4th share to the said plaintiffs 2 to 7. 12th defendant/19th respondent/Sri Hari (since died) preferred LPA 72 of 1996 before this Court. A Division Bench of this Court dismissed the said LPA, on 29.12.1998. His review petition in Review CMP no. 3830 of 1999 was allowed, on 13.08.2001, and the judgment of the Division Bench in the above LPA was recalled. Thereafter, the plaintiffs 2 to 7 (LRs of deceased sole plaintiff) filed SLP (Civil) 22591 of 2001 assailing the said orders passed in the review CMP. The said SLP was allowed by the Supreme Court, by order, dated 10.02.2003, giving liberty to challenge the original order, dated 29.12.1998, in LPA 72 of 1996. The SLP (Civil) CC 2962 of 2003 was again filed by the 12th defendant against the original orders in the said LPA. The same was dismissed, on 07.04.2003, by a Bench of three Hon'ble Judges of the Supreme Court. Thus, the preliminary decree and judgment of this Court in A.S. no. 734 of 1991 stood confirmed and became final. Thereafter, the 11th defendant and the 10th defendant filed A.S.M.P. nos. 1188 of 2004, 1098 of 2005 and 1099 of 2005 in A.S. no. 734 of 1991 seeking separation and allotment of their respective shares. This Court had allowed the said petitions by a common order, dated 21.04.2005. Accordingly, the preliminary decree in A.S. no. 734 of 1991 was amended allotting a half share to the 10th and the 11th defendants and 1/4th share to the plaintiffs 2 to 7/respondents 2 to 7 herein. The 12th defendant/19th respondent herein having been aggrieved of the said common order, dated 21.04.2005, had filed SLP (civil) 7734 of 2006 before the Supreme Court. Though status quo orders were granted earlier, later the status quo orders were vacated. The original extent of the plaint schedule land was Ac.49.24 guntas. It was purchased by one Khader Hussain Khan under a registered sale deed. He d
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