M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. versus M. S. MURTHY & ORS. ETC.

Citation: [2023] 8 S.C.R. 283 · Decided: 15-06-2023 · Supreme Court of India · Bench: V. RAMASUBRAMANIAN · Disposal: Disposed off

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Judgment (excerpt)

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283
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC.
v.
M. S. MURTHY & ORS. ETC.
(Civil Appeal Nos. 4049-4053 of 2023)
JUNE 15, 2023
[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]
Suit – Partition suit – Decree – Preliminary decree – Mathruka
property – Whether on facts, the Division Bench of the High Court
was right in declaring that the preliminary decree dated 28.06.1963
was vitiated by fraud and consequently null and void, especially
when there was no pleading and no evidence let in – Held: The
preliminary decree dated 28.06.1963 could not have determined
the claim to title made by the legal heirs seeking partition, as against
third parties – Any finding rendered in the preliminary decree, that
the properties were Mathruka properties liable to be partitioned,
was only incidental to the claim of the legal heirs and such a finding
will not be determinative of their title to property as against third
parties – The manner in which the judgment and preliminary decree
dated 28.06.1963 were sought to be used, abused and misused by
parties to the proceedings as well as non-parties who jumped into
the fray by purchasing portions of the preliminary decree and
seeking to execute them through Court, defeating the rights of third
parties, is what has prompted the Division Bench of the High Court
to hold that the preliminary decree is vitiated by fraud – What was
a simple suit for partition; and the incidental finding recorded that
the properties were Mathurka properties, have been used by parties
and non-parties to assert title to the properties against strangers –
This was definitely an abuse of the process of law – The judgment
and preliminary decree dated 28.06.1963, though may not be vitiated
by fraud, are certainly not binding upon third parties like the claim
petitioners as well as the Government who have set up independent
claims and whatever was done in pursuance of the preliminary decree
was an abuse of the process of law.
Suit – Decree – Preliminary decree – ‘Paigah’ Estate – Mathruka
property – Whether on facts, the concurrent findings of the Single
Judge and the Division Bench of the High Court that Khurshid Jah
[2023] 8 S.C.R. 283
283
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
a ‘Paigah’ grantee, did not leave behind any Mathruka property,
goes contrary to the finding recorded in the Judgment and
preliminary decree that has attained finality – Whether the finding
recorded in the judgment and preliminary decree that the lands in
question are Mathruka property was binding upon third parties –
Held: No finding was ever recorded by the Trial Judge in his
judgment dated 28.06.1963 that the properties left behind by
Khurshid Jah were Mathruka properties – Therefore, the contention
as though there was such a finding and that the finding has attained
finality and that the impugned Judgment goes contrary to such a
finding, is wholly misconceived – The Single Judge as well as the
Division Bench (in the impugned judgment) were right in holding
that the properties were not established to be Mathruka properties –
The effect of the order of the Nazim Atiyat was not examined by the
Trial Judge – In any case, such an examination had to be done
independently and not in a partition suit, keeping in view, the 1955
Act and various subsequent enactments relating to agricultural land
reforms and urban land ceiling – When the entire claim of the
appellants that the properties were Mathruka properties inheritable
by the legal heirs had failed, the question of executing a decree on
the strength of the plea that the property is a Mathruka property
does not arise – The predecessors of the appellants have had
knowledge that faisal patti were recorded in the name of the claim
petitioners in 1978 itself – Even the Receiver was aware of this, as
seen from the letter written by the Receiver on 09.04.1980 to the
Collector – It is too late in the day for the appellants to question as
to how the claim of the claim petitioners stood established.
Code of Civil Procedure, 1908 – Order XXI, rr.97- 101 –
Enquiry under – Scope of – Held: In an enquiry under Order XXI,
rr. 97 to 101, CPC, the Executing Court cannot decide questions of
title set up by third parties (not claiming through or under the parties
to the suit or their family members), who assert independent title in
themselves – All that can be done in such cases at the stage of
execution, is to find out prima facie whether the obstructionists /
claim petitioners have a bon

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