(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.
(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 21.1962 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 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 211.1959 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 14/104th share in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.
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