NARHAR RAJ Vs. THIRUPATHIBIBI

JUDGEMENT

(1.) This civil revision petition is filed against the order of the learned II Additional Judge, City Civil Court, Hyderabad, dated 31st March, 1981 decreeing I. A. No. 97 of 1971 in O S. No. 32 of 1959 in part. The effect of it is to put back the petitioners in I. A. in possession of a part of item . of plaint schedule property in the above O. S. No. 32 of 1959.

(2.) Late Sri Narahari Prasad, who died in 1299 Hijri had left behind Sri Raja Girdhari Prasad alias Bansi Raja and Sri Khubchand. Sri Raja Girdhari Prasad also called Banji Raja in his turn left behind Sri Keshan Prasad through his first wife and Smt. Silo Bibi his second wife. Sri Khubchand left behind Sri Ganesh Prasad, Sri Mahendra Prasad, Sri Prasad and Sri Parameshwari Prasad. O. S. No 32 of 1959 was a scheme suit filed by certain archaka claiming the plaint schedule properties as having been endowed to and therefore belonging to Sri Chenna Keshavaswamy Devasthanam at Keshaogiri alias Chandrayanagutta, Hyderabad City. To that suit Sri Raja Narsing Raj Bahadur was a party but none of the descendants of Khubchand were made parties. That suit was decreed by the trial Court holding that the properties mentioned in the plaint schedule were endowed to the temple and did not belong to Sri Raja Narasing Raj Bhahadur's family. After the prelimary decree had passed in that suit the trial Court appointed a Receiver who had been directed to take possession of the properties belonging to the endowment. Accordingly the Receiver had taken possession of all the properties which were annexed to the plaint in O. S. No. 32 of 1959. Of those properties, 40 bigas of land with which we are now concerned in this revision were taken possession of from Sri Kanan Raj, who is the great grand daughter's son of Sri Narahari Prasad through Khubchand. Subsequently these properties had been leased out to Sri Narhar Raj who is the son of Sri Raja Narasing Raj Bahadur. Against the decree of the trial Court passed in O. S. No. 32 of 1959 the defendants filed an appeal to the High Court. In the appeal the High Court vide judgment dated 18th July, 1968, confirmed the decree of the trial Court in most respects but varied the decree in so far as the aforesaid 40 bigas of land taken possession of from the aforesaid Kanan Raj. The appellate Court held that the 40 bigas of land did not form part of the endowed property. But the Court did not give back the 40 bigas to Kanan Raj. Even thereafter the 40 bigas of land are continuing to be in possession and enjoyment of Sri Narhar Raj by reason of the lease which he had taken of this property of 40 bigas from the Receiver. Meanwhile Sri Kanan Raj and his mother Smt. Thirupathibibi filed a suit for partition of the joint family properties against Sri Narhar Raj. But in the schedule to the plaint filed in that suit these 40 bigas of land were not shown as belonging to the joint family and as available for partition. That suit was dismissed by the trial Court and was also affirmed by this Court in C. C. C. A. No. 15 of 1974. But against the order passed by this Court in C. C. C. A. No. 14 of 1974 Smt. Thirupathibibi and Sri Kanan Raj have appealed to the Supreme Court by Special Leave under Article 136 of the Constitution. That matter ended up in a compromise recorded in an order passed by the Supreme Court on 25th March, 1980. The compromise, in material parts, reads that "the defendants/respondents including legal representatives of respondent No. 4 shall pay a sum of Rs. 25,000 to the petitioners/plaintiffs in full and final satisfaction of the claim of the plaintiffs/appellants for the share claimed by them in the suit from which this appeal arises". Long prior to the aforementioned compromise dated 25th March, 1980 Smt. Thirupathibibi and Sri Kanan Raj have filed I. A. No. 97 of 1971 claiming that the Receiver should give them back possession of the 40 bigas of land by putting them back in possession of 40 bigas of land which had been taken from them by the Receiver in O. S. No. 32 of 1959. This I. A. was opposed by Sri Narhar Raj. But the trial Court by its order dated 31st March, 1971, which is now challenged in this revision had directed that the Receiver should be discharged in so far as this 40 bigas are concerned and that possession of the 40 bigas of land should be restored back to Smt. Thirupathibibi and Sri Kanan Raj. It is against that order that the present civil revision petition has been filed by Sri Narhar Raj and others.

(3.) The petitioners have argued that the lower Court had erred in ordering the I. A. Their main argument is based upon a contention that I. A. No. 97 of 1971 is a pro interesse suo proceeding which is discretionary in nature which the lower Court ought to have rejected having regard to the facts and circumstances of the case. According to them the application should not have been ordered by the lower Court and that the petitioners in the I. A. ought to have been referred to file a regular suit. It is argued by the revision petitioners that the fact that O. S. No. 24 of 1968 filed by Smt. Thirupathibibi and Sri Kanan Raj seeking partition of the joint family properties did not include this 40 bigas of land would show that the 40 bigas of land never belonged to them. The petitioners also argued that even assuming that the property belonged to the joint family of Kanan Raj and Narsing Raj the rule against splitting partition actions should have been held to debar Smt. Thirupathibibi and Sri Kanan Raj from filing this I. A. The next contention that is urged by the present petitioners against the lower Court's order is that the finding of this Court in C. C. C. A. No. 15 of 1974 confirming the decree of the lower Court in O. S. No. 24 of 1968 holding that Smt. Thirupathibibi and Sri Kanan Raj had no right to the joint family properties had become final and operates to debar the present claim made in the I. A.