Page 1

JUDGMENT

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4731-4732 OF 2010

T. Ravi & Anr.

… Appellants

Vs.

B. Chinna Narasimha & Ors. etc.

… Respondents

With

[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of 2010,

6536-37 of 2010, 4276-77 of 2011, Civil Appeal No. 4319-20 of 2017 (@ SLP(C)

Nos.23864-23865 of 2011), Civil Appeal Nos.1196-97 of 2012 and Civil Appeal

Nos.7105-06 of 2010.]

J U D G M E N T

ARUN MISHRA, J.

1.

Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.

2.

In the appeals, the final decree which has been drawn up in a partition suit

with respect to item No.6 of Schedule ‘B’ pertaining to land admeasuring 68 acres

10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur,

District Ranga Reddy, Hyderabad is in question.

Page 2

JUDGMENT

2

3.

The property was matruka property of Late Mohd. Nawab Jung who passed

away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd. Hashim Ali

Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of

matruka properties of Late Nawab comprised in Schedules ‘A’, ‘B’ and ‘C’. The

suit was contested, inter alia, by defendant No. 1. Darul Qaza Court was abolished

in the year 1951. On abolition of original jurisdiction of the High Court, the case

was assigned to the City Civil Court. It appears that later on as the file was not

received by the City Civil Court from the Custodian, it passed order dated 8.1.1955

to the effect that the file of the case was not yet received, the plaintiff was also

absent, as such the case be closed for the time being and be revived only on receipt

of the file and on an application to be filed by the plaintiff. The city civil court

understood the order to be of dismissal of suit in default. The plaintiff moved an

application for revival of the suit. The city civil court directed the plaintiff vide

order dated 1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid

by 15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the cost

within the stipulated time and prayed for extension of time which was not

extended. The order was questioned by the plaintiff in the High Court by way of

filing an appeal. The High Court decided the appeal vide order dated 23.1.1962 and

held that vide order dated 8.1.1955, the suit was not dismissed for default. It was

an order adjourning the suit with a direction that it may be revived only on receipt

Page 3

JUDGMENT

3

of the file from the Custodian, therefore, there was no necessity for the plaintiff to

file an application under Order 9 Rule 9 CPC for restoration. Thus the trial court

had no jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the cost

of Rs.50 to the defendants on or before 15.12.1955 as a condition precedent. The

appeal was allowed and the order dated 1.12.1955 was set aside. The order passed

by the High Court attained finality. Thereafter, the suit was re-numbered as Civil

Suit No.42/1962 in the city civil court. Hamid Ali Khan, defendant No.1 sold Item

No.6 of Schedule ‘B’ property in area 68 acres 10 guntas on 23.11.1959 to Bala

Mallaiah vide registered sale deed. He sold the share inherited by other co-heirs

also to Bala Mallaiah. It was found in the preliminary decree for partition dated

24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104^th share

in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also

having 14/104^th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104^th

share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant

No.7 was entitled to 13/104^th share in matruka properties.

4.

Aggrieved by the preliminary decree for partition determining the shares to

the aforesaid extent, the plaintiff and legal heirs of defendant No.1 i.e. defendant

Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the

High Court. Cross