Judgment:
B. Prakash Rao, J.
1. Since these two matters arise out of common order, they are being taken up together for disposal.
2. In the appeal and the revision appellants/petitioners are the plaintiffs, who seek to assail common order passed in the main suit and in I.A. No. 798 of 1998 dated 12-8-1998 on the file of the I Additional Chief Judge, City Civil Court, Hyderabad, allowing an application filed under Order 7, Rule 11(a) C.P.C. and rejecting the plaint in the suit, as has been filed by them.
3. In the suit, the plaintiffs sought for the release of the suit property from attachment and custody from the Defendant Nos. 1 to 6 and to restore the same to the plaintiffs by duly re-fixing the boundaries as per the panchanama or in the alternative to deliver the land as agreed to 3rd defendant vide Memo Dated 2-2-1985; in case of any difficulty in doing so to compensate the plaintiffs by suitable adjustment and allocation of other land nearby or in such other manner as the Hon'ble Court feels just and convenient including delivery of the land mentioned in the panchanama and sketch; to direct Defendants 1 to 6 to render accounts of the income and expenditure during the period of the temporary custody and management; for costs; and for such other reliefs.
4. Soon after the appearance, the respondents i.e., Defendants 1 to 6 filed the present application under Rule 11(a) of the Order 7 of Code of Civil Procedure to reject the plaint, inter alia, on the ground that the suit as has been filed in pursuance of the order of the Supreme Court dated 17-9-1997 is not maintainable in view of the facts; firstly that the person, who was given right to file a suit viz., Azizunnisa Begum, D/o late Ghulam Azimuddin, died and therefore it is only her legal representatives are entitled to file, but the suit having been filed by the present plaintiffs tracing the title from Azizunnisa Begum D/o late Gulam Azimuddin, have no cause of action; secondly, the plaintiffs' claim under the registered sale deed dated 23-3-1985 was not brought to the notice of any Court in the earlier round of litigation; and thirdly, 1st plaintiff claimed to be the G.P.A. of Azizunnisa Begum D/o late Gulam Azimuddin and purchaser from Azizunnisa Begum D/o Azizuddin, who are quite distinct and separate persons and therefore the plaintiffs are not entitled to file any suit. Hence, the plaint is liable to be rejected.
5. Denying the said objections, the claim of the plaintiffs is that the suit has been filed duly in terms of the direction given by the Supreme Court and the plaintiffs being purchasers are entitled to file the suit in view of the death of their predecessor in title, who was given a right to file a suit as per the orders of the Supreme Court and further all the objections as sought to be raised do involve a consideration on facts after an enquiry and therefore it cannot be reject at threshold.
6. Considering all the pleas and objections from both sides, the Court below allowed the application and rejected the plaint, inter alia, holding that the Supreme Court has directed filing of the suit to a named person and since the said named person died, the plaintiffs cannot file a suit and therefore they cannot have any cause of action. Further, the sale deed claimed by the plaintiffs was not brought on record in the earlier proceedings, which was pursued only on a plea that the plaintiffs are the G.P.A. holders but not as an agreement of sale holders and therefore in view of the death of the executant of the power of attorney, the authority no longer subsists. It was also observed that no where in the plaint or in the counter to the present application there is any averment as to the date of death of the late Azizunnisa Begum and no death certificate was also filed and therefore the plaintiffs are not entitled to the benefit under Section 202 of the Indian Contract Act or even under Section 146 of the Code of Civil Procedure. It was also observed that though the legal representatives of the Azizunnisa Begum were added as defendants 7 to 9, no relief is claimed against them. Hence, the suit is liable to be rejected holding that the Hon'ble Supreme Court has granted permission with concession to Azizunnisa Begum to file the suit and therefore the cause of action cannot be based on the agreement of sale or sale deed, executed by her, as she is no more.
7. The learned Counsel appearing for the appellants strenuously contended that having regard to the nature of objection raised, the very provisions under Rule 11 of Order 7 of the Code of Civil Procedure has no application nor the plaint could have been rejected without proper enquiry and evidence from both sides. Even otherwise, the suit having been filed in terms of the orders of the Hon'ble Supreme Court, the question of rejecting the plaint does not arise unless a regular trial is held by going into the claims and it was also contended that the interpretation as sought to be given to the orders of the Supreme Court to the effect that the permission to file suit only to a named person, but not to any such persons claiming through her, is wholly incorrect and is not sustainable. Even otherwise, the finding that there exists no cause of action is also unsustainable.
8. The learned Government Pleader, appearing on behalf of the respondents herein, sought to sustain the findings of the Court below holding that even on a reading of the plaint, the suit as sought to be filed is not in the terms or directions of the Supreme Court and the plaintiffs for the first time giving out the present claim and therefore there are no rights to file such suit, which was only permitted to be filed by the Azizunnisa Begum and after her death such right looses its enforceability.
9. Considering the submissions made on either side and also on perusal of the material, the question which falls for consideration is, whether on the facts and circumstances the Court below was right in rejecting the plaint in exercise of powers under Rule 11(a) of the Order 7 C.P.C. Before venturing into the said question, it is necessary to consider the allegations as made in the plaint, which reads as follows:
'(3)(a) The Village Khairatabad was formerly held by the Nizam and administered by him through the SarfeKhas Department. It was part of the erstwhile Atraf Balda District. There had been a big Tank called Hussain Sagar in the said village. The said tank is adjoining and spread to other Revenue Village like Kakaram, Bholakpur, Rasoolpura, Begumpet etc., some of which villages were administered through the Diwani of the Nizam Government. Bholakpur is Diwani area under Hyderabad Bhagat District. Some of the foreshore areas of Hussain Sagar including the suit land were un-surveyed but held under the pattas or khathas of individuals Asamies.
(b) One late Sri Gulam Azimuddin held the suit land as a Pattedar under the Sarfekhas. For recovery of Public Revenue of Rs. 185.15 (Rupees One hundred and eighty five and fifteen paise only) the suit land was attached by the Revenue Inspector one Syed Sultan Mohinuddin of V-Zone, Khairatabad under orders of the Tahsildar. The land was taken into temporary custody of the Government and entrusted to the care of one Raghava Reddy, Mukaddam Kotwali Khairatabad (Police Patel). A bond was taken from him (i.e., Jamma Pathrik). The Panchanama, the Zapthi Patti and Jamma Patrik were submitted by the Revenue Inspector to the Tahsildar along with the report dated 8th Mohar 1346 Fasli. A copy of the said letter No. 442 in file No. 236/ 9 of 1344 Fasli evidencing the same is herewith filed as Document No. 1. The leasehold was auctioned on Eksala basis for Rs. 100/- (Rupees one hundred only) for year 1347 Fasli in favour of one Khaja Mia. The yearly auction was continued thereafter and the arrears were recovered. Due to the negligence of the custodian, portions of the land was made by late Azeemuddin to the then Tahsildar to evict the encroachment and release the land and recover the balance due to Government, if any. The Tahsildar issued orders in his Letter No. 6973 dated 20th ABAD 1347 Fasli to the Revenue Inspector to survey and submit report about it, the Revenue Inspector complied and submitted a report with sketch through his Letter 17th Behman 1347 Fasli vide File No. 236/9 (Areas 44F) No. 112 which is filed as Document No. 2. He reported that the suit land is adjoining the boundaries of the cantonment and he prepared two plans showing the encroachment and the location sketch of the suit land.
(c) The Hyderabad Land Revenue Act of 1317 Fasli applied to the recovery of revenue of all lands including the Sarfekhas lands. Section 116 of the said Act as it then stood provide:
Section 116-(c) By distraint and sale of the defaulter's immovable property under Section 120.
(f) By temporary attachment of a non-khala village of part of such village in respect of which the arrear is due under Section 125.
Further Section 125 reads as follows:
'If the land in respect of which arrears are due consists of an entire village or part of a village and the 'Collector' does not consider it expedient to put into effect any of the measures specified about he may, with the sanction of the 'Board of Revenue' attach such village or part of the village'.
The Collector may divest the superior holder or sharers of the management of the land so attached and either manage in himself or through an agent whom be deems for and shall recover all rent and profits from the Asamies. The property shall be restored to its superior holder after the payment of arrear.
(d) The plaintiffs submit that the Collector (Statutory Authority and the Agent) to whom the custody is entrusted have to take care of the property. He has to hold the property as a constructive Trustee having the same obligations, duties, liabilities and disabilities of a trustee. He is bound to protect the title and take care of the property and keep an accurate account of property and furnish full accurate information and state of the trust property. The Collector and the Tahsildar neither took action under Section 57 or Section 157 of the Hyderabad Land Revenue Act to evict the trespassers and to render accounts. But they indulged in bureaucratic wrangles of procedure in safeguarding and returning the property.
(e) Immediately thereafter political changes like the II World War occurred. Thereafter the proclamation of Independence by the Nizam followed by Police Action took place and the Sarf-e-Khas were abolished and merged in Diwani with effect from 8-2-1949 as per the Sarf-e-Khas (Merger) Regulations 1358-I (Regulation No. KL 1 of 1358). Section 4 of Regulation provides that the claims by or against the Sarf-e-khas in respect of movable or immovable property shall be made by or against the Government and suits relating to such claims, if any, pending at the commencement of the Regulation shall be deemed to have been filed by or, as the case may be, against the Government.
(f) The Government Revenue Department after perusal of the Sarf-E-Khas records which were delivered to them by the Sarf-E-Khas authorities, prepared a Pahani in the year 1949 showing the several holders of the land in village of Khairatabad in 1359 Fasli. A certified copy of the same is filed as Document No. 3. The land of Azimuddin is shown as Survey No. 9/ 13 and the total extent of land is shown as Ac.10.00 excluding the Poat Kharab and the assessment of Rs. 25/- (Rupees twenty five only) is indicated under Dast Garda i.e., suspense account. The patta and title of Azizmuddin is thus recognized. During the period of Custodia Legis the lease hold alone was auctioned and he continued to be owner and pattedar. The obligations to restore the land and tender account thus devolved on the State Government.
(g) On 25-1-1950, the Nizam acceded to the Indian Union. The Indian Constitution of 1950 applied. Hyderabad became a part 'B' state. Under Article 372 of the Constitution of India all the existing Laws contained. Hence, the Sarf-E-Khas merged regulations of 1358 Fasli and Hyderabad Land Revenue Regulation 1317 Fasli continued to be in force and rights and obligation arising under the said Acts continued.
(h) On 8-3-1951 Azeemuddin again submitted an application to the then Tahsildar, Hyderabad West expressing that he would repay the arrears, if any, due in instalments and the land attached should be released in his favour free of encroachments which were caused due to collusion of the Police Patel who was the Custodian of the property. An enquiry was held as could be seen from file No. B2/ 2397/61 of Tahsildar Hyderabad West. But without applying his mind to the records the Tahsildar rejected it by his order dated 28-2-1953. An appeal was filed against the same to the Deputy Collector, Hyderabad West, who by his order dated 29-3-1954 in File No. 17-NUMERI/1954 allowed the appeal. He held that once the attachment has been accepted, the duty to identify the land and to restore it exists. He directed the Tahsildar to re-enquire in the matter and identify the land (vide paper Book filed before Supreme Court of India by the Collector).
(i) The Hyderabad Record of Rights Regulation 1358 Fasli came into force during the year 1954. The Kasra Pahani for the year 1954-1955 was declared as Record of rights under the said Act. The copy of the same is filed herewith as Document No. 5. The suit land was described as 9/13 'VOO' ( ) and its location is described as being behind Nallagutta and it is patta land of Azeemuddin, The extent is shown as Ac.10.00. Nallagutta is towards Secunderabad side of the lake abutting towards Ronald Ross Road. The Sesaila Pahani for the year 1955 to 1958 contains the same particulars. Section 13 of the above Regulations says:
Any entry in the record of Rights shall be presumed to be true until the contrary is provided. Thereafter, with effect from 1-11-1956 under the States Re-organisation Act of 1956, Part 'B' states were abolished and the Telanagana part of erstwhile Hyderabad State has become part of State of Andhra Pradesh and the existing laws continued. (j) As per the order of remand referred to in Paragraph 3(h) above, the case was enquired and in spite of the elaborate report of the Deputy Tahsildar in File N.B2/2397/61 of Tahsildar Office, Hyderabad West, the Tahsildar again rejected on 11-12-1962. An appeal was filed to the Joint Collector who rejected the same on 19-5-1966. A further 2nd appeal was preferred to the Board of Revenue. As per Section 3 of the Land Revenue Regulation of 1317 Fasli the Board is the Chief Controlling Authority in all the matters pertaining to Land Revenue. The appeal was considered under Section 158 of the Hyderabad Land Revenue Act and the Government was made a party. The board by its order dated 16-11-1970 held that:
'There is no doubt that some land was taken over by Government from the Appellant for land Revenue arrears, but what that land was. It is unfortunately not at all clear, the appellants has taken his own time to ask for the return of the land. Though his request is not barred by time, it is not fully supported by the required particulars to enable any verification'. The appeal was therefore dismissed subject to a direction that the appellant may make further claim before the Revenue Authorities with further evidence. The effect of the order is that the land of Azimuddin was attached for recovery of Revenue and claim for return of the land is upheld, but for want of further particulars the appeal cannot be straight way be allowed but a direction for further enquiry was ordered. The order of the Board was passed after hearing the Government Pleader. Had the Government Pleader placed before the Board the Pahani Patrik of 1949, Khasra Pahani of 1954-55, Sesala Registers from 1955 to 1958 and Chowfasla Registers of the years 1964-65 and 1965-66, the Board of Revenue would have passed consequential order itself, instead of driving Sri Azeemuddin to a fresh bout of enquiry, as to the identify of land. The finding regarding the title and attachment and custody of the land of Azeemuddin, is thus resjudicate it being a Quasi-Judicial Enquiry.
4. Azeemuddin then filed W.P. No. 5834 of 1971 in the Hon'ble High Court of A.P. against the Board, Collector and Tahsildar for restoration of land and for rendition of accounts. The Hon'ble High Court of A.P. by its order dated 31-1-1972 held that:
'The Board of Revenue has clearly conceded that it is the responsibility of the Government to restore the possession of the land taken over from the petitioner. But possession could not be given because the land could not be localized, The Board of Revenue thought that it was not possible from the data placed before it to put back the petitioner in possession of his land. There is no denial of the right of the petitioner to the recovery of the possession of the land. But the restoration of the possession can be done only on the precise ascertainment and localization of the land that has been taken from him. For that purpose the Board of Revenue has directed the petitioner to make an application to the Collector and has also given liberty to the petitioner to place fresh and clear date before the Collector. The petitioner cannot be said to have been aggrieved by the order of Board of Revenue. The petitioner may make an application immediately to the Collector for localizing his land, which is in possession of the Government'. 'Counsel submitted that the Government must be having in their possession the record relating to the attachment and taking over of possession by the Government, it will be open to the petitioner to call for such records to enable the localization to be made'.
The order of the Hon'ble High Court dated 31-1-1972 in W.P. No. 5831 of 1971 confirmed the findings of the Board. Though the writ petition was dismissed at the administrative stage it is a speaking order. The findings are binding as res judicate.
5. The above proceedings were acted upon. In pursuance of the above order Sri Azeemuddin filed a petition for restoration of land and for accounts along with other documents. The Collector in his order dated 30-6-1973 in file No. I B6/6774/72 directed the Tahsildar to take necessary action for restoration of land and for rendering accounts. On 16-5-1972 Azeemuddin died. His daughter Azizunnisa Begum appeared before the Collector. The Collector advised her through his letter dated 30-6-1973 in File No. E4/6774/ 72 to appear before Tahsildar. Subsequently, as usual the Tahsildar passed on the matter to Revenue Inspector on vis-a-vis and no further action was taken and all action for identification of the land was kept in cold storage.
6. After the death of Azeemuddin his brother Jeelani made a representation to the defendants in addition to the representation made by Azizunnisa Begum, the daughter, sole legal hirer of late Azimuddin Jeelani also died in the year 1977. After due enquiries the name of Azizunnisa Begum was mutated as the pattedar in the Pahani Patrika in 1980-1981 in respect of Survey No. 9/13 ( ) of Khairatabad Village but its localization and restoration to her was postponed. The said Azizunnisa Begum having been vexed with merambulations round the offices of the defendants, entered into agreement on 1-9-1981 to sell the suit properly to the plaintiffs and to assign her rights and also executed on the same day a registered power of attorney in favour of the plaintiffs authorizing them to take all legal actions for recovering the land and to deal with the land.
7. Due to administrative changes of Taluq Hyderabad West into Hyderabad Urban and later into Golconda and Musheerabad Taluq, the 1st plaintiff had to make enquiries in the several offices of Government and obtained certified copies of the report of Revenue Inspector, copy of the Khasra Pahani and of other Pahanies Chowfasia mentioned in paragraphs above. The 1st plaintiff then filed W.P.No. 7098 of 1983 on 26-8-1983 in the Hon'ble High Court against the Collector and the Tahsildar for issue of writ of mandamus for recovery of land.
In pursuance of the Rule Nisi in the writ petition, the Collector by his letter dated 30-9-1983 in his file No. B1/8196/ 83 called for a report from the Deputy Director of Survey Hyderabad to localize the suit land with reference to material furnished in the writ petition. He also called for remarks and records of the Tahsildar, Golconda, who was then having jurisdiction over Khairatabad Village. The Tahsildar, Golconda, in his letter D/5456/83 dated 17-11-1983 informed the Collector that the suit land has been later included in Bholakpur Village of Musheerabad Taluq. The survey Inspector Waheeduddin Sufi also localized the suit land as having been ultimately included during the Revision Survey as Survey No. 43 of the adjoining Bholakpur Village and that during the subsequent town survey operations Ac.8.00 of the land is included in Town Survey No. 4 (part) Block 'A' Ward 100 and the remaining extent as being under the encroachment vide a file No. F/1757/82 of Deputy Director of Survey.
8. In the course of Revision Survey of the subsequent Town Survey, no notice was given either to the pattedar Azeemuddin to his daughter Azizunnisa. The land was in the temporary custody of the Government and it was wrongly assumed as Government land and described as such in the town survey land register. On coming to know about the same the 1st plaintiff filed an application on 18-12-1994 before the Collector for correction of the entries and restoration of possession. It was mentioned as being under Section 87 of Hyderabad Land Revenue Act 1317. It is open to the authorities to treat it as an application (or appeal) under the appropriate provision of law. The Collector is the statutory authority under the Hyderabad Land Revenue Act to enquiries and also to restore possession of attached land after the attachment ceases when the amount is recouped. He is also District Survey Officer both under Hyderabad Land Revenue Act as well Andhra Pradesh Survey and Boundaries Act, 1923 and Rules thereunder and pass quasi judicial order either on appeal or reference.
9. On 16-1-1985 the Counsel for plaintiffs were heard and an order was passed directing the Deputy Director of Survey to localize the suit property in Bholakpur Village. The said report was received on 29-1-1985. The defendant No. 3 heard the Plaintiff No. 1 and his Counsel and later on issued order under memo dated 2-2-1985 bearing No. F/2376/84 to the Plaintiff No. 1 to express whether he is willing to accept the Ac.10.00 free from encroachment instead of his claim for Ac.10.26 guntas as mentioned above. It was duly accepted. The plaintiff asked for a plotted sketch, which was furnished along with panchanama demarcating the land. Thus the Ac.8.00 of land in T.S.No. 4 (Block 'A' Ward 100 identified as part of the original land and Ac.2.00 of the adjoining Government land to compensate the loss of Ac.2.26 guntas. The matter was thus settled and compromised and defendants are thus bound by the same. Azizunnisa Begum also acted upon the same and suffered determent. It is not open to 3rd defendant by rule of estoppel to reside from same. The 3rd defendant being a statutory agent of 1st defendant, they are also bound by rule of promissory estoppel.
10. In pursuance of the above the plaintiffs asked the Defendant No. 3 for permission to fence the land demarcated and to give possession. The matter was referred to Special Deputy Collector for land enquiries Banjara Hills and District Revenue Officers and after hearing the parties concerned an order was passed on 5-9-1985 affirming the above identification and allocation of land but declining to deliver possession in view of pendancy of WP.No. 5893 of 1983.
11. The 3rd defendant is both an appellate Authority as well as Arbitration Authority under A.P. Survey Boundaries Act of 1923 in addition to his functions under the Hyderabad Land Revenue Act. His order is quasi judicial, statutory and binding on all parties including Government as submitted above. The erroneous description in the revision survey of Bholakpur Village and of the subsequent town survey showing the name of the Government in the land register is null and void and is to be modified in the light of the above stated supra facts.
12. The Writ Petition No. 7098 of 1983 in the Hon'ble High Court came up for hearing on 30-9-1985. Instead of filing a counter, the Government Pleader Sri N. Subba Reddy produced before the Court the parawise remarks dated 10-4-1985 of the Law Officer and he also furnished a copy to Plaintiff No. 1. (Copy enclosed as Document No. 6). In the parawise remarks it is admitted that the suit land is part of Survey No. 43 of Bholakpur Village and shown as Government land in the settlement records and this was done during the revision survey and that as per the Pahani Patrika and as per Vasool Baqi register of 1979 of the Town Survey, the whole Survey No. 9/13 ( ) of Khairatabad village is Ac.10.00 alone and that in the subsequent town survey it is marked as T.S.No. 4 of Block 'A', Ward 100 of Bholakpur Village, out of which Ac.8.00 is vacant and the balance is encroached by others.
13. On the above material and after hearing the Government Pleader, the writ petition was allowed on 30-9-1985 directing Defendants 3 to 5 to deliver the land and demarcate T.S. No. 4 Block 'A' Ward 100 of Bholakpur Village within 4 weeks and to deliver. By that time the Tahsils were divided into Mandals and Bholakpur is in Secunderabad Mandal and Khairatabad has its own Mandal. The respective Mandal Officers are therefore impleaded as defendants. The 3rd defendant filed on 10-11-1985 a petition for review before the Single Judge. It was dismissed on 15-11-1985. On 18-11-1985 the 3rd defendant filed a W.A. No. 1195 of 1985 in the Hon'ble High Court questioning the judgment of Single Judge. On 4-12-1985 the Joint Collector issued a notice to the 1st plaintiff to show-cause why the Memo dated 5-9-1985 should not he annulled, and the notice further states that pending the hearing of the case, the execution of the order given in Memo No. 2376 dated 5-9-1985 is stayed until further orders. He allowed the Review on 25-6-1986. The said order is illegal for reasons stated below:
(a) The earlier order is not an administrative order but a judicial order and cannot be reviewed.
(b) That the order being one relating to identification of land with reference to the boundary fall under A.P. Survey and Boundaries Act of 1923 as applied in 1959 and is final under the provisions of the said act and cannot be reviewed under the Hyderabad Land Revenue Act.
(c) That the order went beyond the scope of the rejection of the request to fence the suit land pending the writ petition and is not an operative order as it is incapable of being reviewed. The writ appeal was heard and was rejected on 6-12-1986. The Bench disagreed with the review order of Joint Collector.
14. The 3rd defendant preferred the SLP No. 1126 of 1986 and which was numbered as C.A.No. 1905 of 1987 before the Supreme Court of India. It was disposed on 17-9-1997. The main grievance urged is that 1st defendant was not a party as such in the writ petition and writ appeal, the Supreme Court by order dated 17-9-1997 allowed the appeal on that ground and set aside the judgment in writ petition and writ appeal directing the Plaintiff No. 1 to file a suit before the end of calendar year of 1997 adding the 1st defendant as a party and the entire period from 1972 onwards till the date of suit will be excluded for the purpose of limitation and the requirement of Section 80 C.P.C, notice is waived and the suit if filed within the calendar year of 1997 be disposed of on top priority within six months from the date of filing and nothing contained in the judgment be taken into consideration. for the purpose of determination on merits of the case.
15. As submitted above Azizunnisa Begum succeeded to the right of her father Azeemuddin who was owner and pattedar of the suit land. Unable to pursue the matter with the defendants she entered into an agreement of sale dated 1-9-1981 in favour of the plaintiff and also executed a power of attorney to safeguard the interest covered by the agreement and received consideration. The power is thus irrevocable and in pursuance of the same Azizunnisa Begum conveyed and assigned all her rights in the sale deed dated 23-3-1985 in favour of the plaintiffs and their nominees and also presented if for registration. It is still in the custody of Registrar for technical reasons. The plaintiffs are thus entitled to file the suit for custody and for other reliefs mentioned hereunder.
16. After the attachment of the suit property on 8th Mehar 1346 Fasli the suit properties were in the custody of the 3rd defendant and his agents. Due to their negligence part of it was allowed to be encroached by others without any statutory action for eviction being taken. Due to political and violent administrative changes of jurisdiction and of repeated surveys and revision surveys of Khairatabad and Bholakpur Villages and other adjoining villages, the official defendants allowed the boundaries to be erased and blurred and merged in the adjoining Government land needing re-determination of the boundary and consequent restoration. The official defendants have the duties of a Trustee to re-determine the suit scheduled property and to restore it or its equivalent and render accounts of income. To lack of supervision by the official defendants during the custody of suit lands after attachment, the water from the cantonment drain is allowed to percolate and flood the suit land and submerge the same causing immense loss to the owners. The Board of Revenue is the statutory chief controlling agent of the Government and the 3rd defendant is the authority under the Hyderabad Land Revenue Act and A.P. Survey and Boundaries Act of 1923 to identify and restore the property. The official defendants or their subordinates, who are in charge and the custody of the record and they are impleaded the last three defendants the non-official defendants are the sons of late Azizunnisa Begum and are impleaded as parties. The defendants are thus answerable to the suit. The suit is within the time as per directions of the Hon'ble Supreme Court in C.A. No. 1905 of 1987. No notice under Section 80 C.P.C. is issued since it is waived by the Hon'ble Supreme Court of India.
Cause of Action:
The cause of action for the suit arose on 8th Meher 1316 Fasli when the suit property was taken into custody and the temporary management of the official defendants and leased on by auction on Eksala Basis for recovery of the public revenue of Rs. 185.15 (O.S.) (Osmania Sikka), when subsequently the defendants neglected to supervise and protect the properties and subsequently who they allowed in a identity to be submerged along with the land in the neighbouring villages of the Bholakpur and on 16-11-1970 when the 2nd defendant upheld the rights of Azeemuddin to the suit property and directed his subordinate officers to identify and when on 31-1-1972 when the Hon'ble High Court of A.P. upheld the said right in W.P.No. 5831 of 1971, on 30-6-1973 when the 3rd defendant after accepting the judgment directed its implementation and on 2-2-1985 when the land was identified and the sketch and panchanama dated 26-6-1985 were delivered but the defendants failed to release the land from attachment and to restore the said land and finally on 17-9-1997 when the Hon'ble Supreme Court of India directed the suit to be filed making the 1st defendant as the party. The cause of action arose in Khairatabad, where the land was originally situated and now relocated in Bholakpur Village within the limits of Secunderabad and thus falling in the Secunderabad Division within the Territorial jurisdiction of this Hon'ble Court.'
10. No written statement has been filed by any of the defendants and it is only the Defendants 1 to 6 have filed the present application to reject the plaint mainly on the premise that there exists no cause of action nor any right to file such a suit, in spite of the directions of the Supreme Court. The objections raised and the findings ultimately given by the Court below on the respective submissions made from both sides mainly to the effect that in spite of earlier round of litigation, the plaintiffs would not have filed the suit, as the permission given by the Supreme Court is only to the named person i.e., late Azizunnisa Begum and a serious identity dispute is also raised in regard to the said lady vis-a-vis the predecessor in title of the plaintiffs. At this juncture, it is also necessary to note the orders of the Supreme Court in C.A. No. 1905 of 1987 dated 17-9-1997, which reads as follows:
'Having arrived at this cross road, we have consulted learned Counsel for the parties. On so doing we have got on to the view that a civil suit is the only answer where the parties can put their claims, defence and counter claims respectively so that nothing is left uncertain. It is suggested by Mr. P.A. Choudhary, learned Senior Counsel appearing for the appellants, that the named respondent be conferred the liberty to file a suit against the State as also the present appellants for appropriate relief and that no plea of limitation would be raised by the defendants. But despite these concessions, the law enjoins on the Court not to entertain a time barred suit under Section 3 of the Indian Limitation Act. Mr. B.N. Naik learned Senior Counsel appearing for the named respondent is not repellant to the idea of the matter going to the Civil Court at the instance of the respondents but he says that there being no impediment to the suit should be ensured. Taking that in view we go to hold that should be respondent move the civil Court in a suit, the period spent by her in initially initiating proceedings on 8-4-1972 before the Tahsildar until today shall be a period which shall be deducted from reckoning the period of limitation as she had bona fidely proceeded not only against the appellants, but in a manner against the state too though not in the appropriate and legal manner. Thus, the totality of circumstances goad us to allow this appeal, set aside the impugned orders of the High Court be those of the Single Bench or that of the Division Bench and relegate the respondent to a civil suit the limitation for which we have secured in the earlier few sentences. She could be at liberty to claim the original land or other land in the alternative as also to stake any other claim, which may legitimately be due to her in the facts and circumstances.
We have also consulted learned Counsel as to the necessity of the respondent of sending a statutory notice under Section 890 of the C.P.C. The object of such notice is to disclose the opposite side the claim of the plaintiff. The claim substantially is now well known to the state and the appellants. It would be wastage of time to insist on its observance in the facts and circumstances. Mr. Chaudhary, the learned Senior Counsel candidly waives the condition of notice under Section 80 CPC. The respondent can straightaway proceed with the suit. And expecting that the suit would be filed within this calendar year we put the Trial Court duty bound to give a top priority to it so that this old claim of the respondent does not sink deeper any further in the long march of time. Before parting with the judgment, we need to caution that we have not expressed anything on the merits of the matter. The Whole cause as such is open to the parties.'
It is this direction which is being placed reliance from both sides, one to the effect that the suit is only in terms thereof and another is that the said permission to file a suit is only a named person but not to any other person claiming in other capacity. In the Court below and also in these proceedings, there is no serious dispute to the fact that if any such suit is being filed by the legal representatives, such objection is not sustainable and they could have pursued the matter. The only distinction sought to be drawn on behalf of the defendants is that the plaintiffs now claim through an agreement of sale and also a registered sale deed, and having claimed themselves as a G.P.A. holders in the earlier litigation, cannot avail the said benefit of the orders of the Supreme Court, as the said permission is only to a named person and in the event of her death to the legal representatives. There is no dispute to the fact that the plaintiffs were parties, though in the capacity of a General Power of Attorney in the earlier proceedings, and the proceedings were being pursued in the name of late Azizunnisa Begum and ultimately the Supreme Court by taking into consideration the submissions made across the bar, permitted her to file a suit with further observation that she would be at liberty to claim the original land or other land in the alternative and also to state any. other claim, which may legitimately due to her in the facts and circumstances. It was also further observed that the 'We have not expressed anything on the merits of the matter'. Therefore, by reading of the orders of the Supreme Court the parties were relegated to the Civil Court for the purpose of establishing their right, title and interest whatsoever of nature to consider the same afresh on merits. However, having regard to the death of the party, to whom such right has been conferred, there cannot be any dispute that anyone who claims through such party either by it a legal representativeor as a assignee or predecessor can always take advantage thereof. The question of such restricted interpretation, as sought to be done by the Court below, does not arise, more so in the absence of any such expression being put by the Appellate Court in its order. On death of a party to the proceedings, the successors in interest, in any capacity, by inheritance or otherwise are entitled to pursue the remedies or the proceedings as contemplated under the law. Further, the Court below went on to proceed on the ground that there exists no cause of action and in its support virtually the lower Court has gone into the merits and facts and upheld the objection. It is now well settled that the cause of action is a bundle of facts and includes every fact, which would be necessary for a party to prove in order to support his right.
11. The grounds, as contemplated under Rule 11 of the Order 7 C.P.C., reads as follows:
'11. [Section 54]. The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.'
12. The present case is sought to be brought under Clause (a) thereof to show that there exists no cause of action. Primarily, if on a bare reading of the plaint no cause of action is seen or shown to have been existed, any exercise of power thereunder is perfectly sustainable. However, even for such exercise, if it warrants an ascertainment or verification of such facts, which constitute the foundation for the cause of action, it calls for an enquiry and ultimately both sides have to substantiate their respective pleas. Even on a reading of the main plaint in this case it does not show that no such cause of action exists and the plaintiffs though traced back the cause of action to antedate, but ultimately rests the same on the directions given by the Supreme Court, as per the orders dated 17-9-1997. Therefore, it cannot be said that the plaint does not show any cause of action and it can be thrown out at the threshold, without a proper assessment. In fact, none of the defendants have filed any written statement nor there exists any such denial on facts as alleged in the plaint. On a reading of the affidavit filed in support of the present application, it clearly shows that there is denial as to the agreement or sale deed held by the plaintiffs and also the question as to whether plaintiffs are entitled to benefit under Section 202 of the Indian Contract Act, which again calls for the factual appreciation on the aspect Even on the finding given that the plaint does not show the date of death of the Azizunnisa Begum, it is to be noticed that the defendants have not come out specifically showing the date of death of Azizunnisa Begum. Even in this aspect the matter requires to be enquired into on a proper pleadings and evidence from both sides. That apart, there cannot be any dispute in regard to the permission given by the Supreme Court in the very appeal, to which the predecessor in title is a party. On the face of it, the plaint could not have been rejected without a proper enquiry. Further, all such objections are matter for regular trial and enquiry and not for entertaining any application under Rule 11 of the Order 7 C.P.C. Thus on the entire reading of the orders of the Court below, every finding and the reasons given in support thereof, is virtually embarkment on the merits and a factual appreciation, which traverse beyond the very nature and scope of enquiry as contemplated.
13. In the circumstances, we hold that the Court below was not right in entertaining the very application at threshold, without a proper enquiry, and rejecting the plaint. The C.C.C.A. No. 191 of 1998 and C.R.P. No. 5392 of 1998 are, accordingly, allowed and the impugned orders are set aside. The lower Court shall dispose of the suit on merits and in accordance with law, after giving opportunity to both sides, within a period of six months from the date of receipt of a copy of this order. No costs in both the matters.