NARTHAR RAJ Vs. TIRUPATHI BIBI

JUDGEMENT

(1.) The Civil Revision Petition is filed against the order of the learned II Additional Judge, City Civil Court, Hyderabad, dated 31/03/1981 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 I of plaint schedule property in the above O. S. 32/59.

(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 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 Behadur was a party but none of the decedents 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 Shri Raja Narsing Raj Bahadurs family. After the preliminary decree had been 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 bias of land worth which we are now concerned in this revision were taken possession of from Shi Kanan Raj, who is the great grand daughters son of Sri Narahari Prasad through Khubchand. Subsequently these properties had been leased out to Sri Narahar Raj who is the song of Sri Raja Narasing Raj Behadur. Against the decree of the trial Court passed in O. S. 32 of 1959 the defendants filed an appeal to the High Court. In the appeal the High Court vide judgement dated 18-7-68 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 bighas to Kanan Raj. Even thereafter the 40 bighas of land are continuing to be in the possession and enjoyment of Sri Narhar Raj by reason of the lease which he had taken of this property of 40 bighas from the Receiver. Meanwhile Sri Kanan Raj and his mother Smt. Tirupathibibi filed a suit for partition of the joint family properties against Sri Narahar Raj. But in the schedule to plaint filed in that suit these 40 bighas 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 the dismissal was also, affirmed by this Court in C. C. C. A. No.15/74. But against the order passed by this Court in C.C. C. A. 14 of 1974 Smt. Thirupathi Bibi and Sri Kanan Raj have appealed to the Supreme Court by Special Leave under Articles 136 of the Constitution. That matter order passed by the Supreme Court on 2 5/03/1980. The compromise, in material parts, reads that

(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. N.24 of 1968 filed by Smt.; Thirupathi Bibi and Sri Kanan Raj seeking partition of the joint family properties did not include this 40 bighas land would show that the 40 bighas 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 Courts 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. 24 of 68 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.