A trust holding property under a Farman of the Nizam was told it had cited the wrong rule, and lost its objection without anyone comparing the boundaries

Justices S.V.N. Bhatti and N.V. Anjaria held the burden had been wrongly fastened on the third-party objector and remanded the execution of an ex parte 2015 decree for a full inquiry.

In 2012 a man sued for specific performance of an agreement of sale said to have been executed in 2001 over shops at Rikabgunj, Patherghatti, in Hyderabad. The defendant never appeared. In 2015 the suit was decreed ex parte, with a direction to execute and register a sale deed, liberty to have it executed through the process of law, an entitlement to possession, and ₹10,428 towards costs. When the decree-holder moved to take physical possession in 2016, a charitable trust which was in possession of the property objected. Its objection has now been held to have been dealt with unlawfully, and the matter goes back to the executing court for a proper inquiry.

What the decree actually said

The terms are worth setting out because the identity of what was decreed is the question the case turns on. The suit of 2012 before the VII Senior Civil Judge, City Civil Court at Hyderabad, was decreed on 18 March 2015 with directions that the defendant execute and register a sale deed in respect of the suit schedule property, that the plaintiff was at liberty to get the sale deed executed and registered through the process of law, that the plaintiff was also entitled to possession of the suit schedule property, and that the defendant pay ₹10,428 towards the costs of the suit.

The schedule described the property as Old Municipal No. 634, new Municipal No. 21-1-1098/9/10/11, consisting of shops at Rikabgunj, Pathergatti, Hyderabad, admeasuring 373 square yards, bounded on the north by City Court land (presently road), on the south by a passage to Pathergatti (presently road), on the east by City Court land (presently road), and on the west by the passage to the mosque of Mirde Munawar. The decree-holder filed his execution petition on 5 January 2016 seeking delivery of physical possession. The trust, represented by its Managing Trustee, filed an application resisting execution as a stranger and third-party objector. That the trust was in possession of the property was not in dispute.

Two chains of title

The decree-holder traced his claim through a sale deed of 1353 Fasli, by which the plot — described as 375 square yards — was sold to the father of the second respondent. The boundaries in that deed read east, government land of the City Court; west, way and mosque of Mirde Munnawar; north, land of City Court; south, way to Patherghatti. A note in the deed recounted that the land had been taken by a tenant of a pattedar on a rent of ₹20 for two plots, built upon with permission from the City Improvement Board, and then sold. The agreement of sale of 23 February 2001 in favour of the decree-holder was for ₹8,00,000 said to have been paid in cash, and described the property as 375 square yards with more than 41 mulgies on both sides and a structure on pillars of cellar, first and second floors in the middle of the land.

The trust claimed through a Farman Mubarak of the Nizam of Hyderabad, by which the land at Patharghati was said to have been conveyed to Khan Bahadur Ahmed Alladin Nawab Ahmed Nawaz Jung Bahadur, the founder of the Alladin family trusts, to set up a waqf for charitable purposes. The Muntakhab of 6 June 1949 described the property as the Mecca Madina Building at Pathergatti. A trust deed of 23 September 1976 covered approximately 3,151.51 square yards at Rakibgunj, Pattharghati.

There had been earlier rounds of litigation about the same numbers. The Chief Executive Officer of the Andhra Pradesh State Waqf Board declared on 15 May 2000 that the property covered by Door Nos. 21-1-1098/9 to 11 was an integral part of present Municipal No. 21-1-1098; a writ court set that order aside and directed possession be given to third-party claimants; the trust's writ appeal was allowed by a Division Bench on 18 October 2001, and a special leave petition against that was dismissed on 15 February 2002. A Gazette Notification of 20 November 2003 under the Waqf Act, 1995 notified Municipal Nos. 21-1-1098/1 to 8 and declared seven unnumbered mulgies as property belonging to or under the administrative control of the trust. A suit filed in 2002 by the same third-party claimants against the trust for Municipal Nos. 21-1-1098/9 to 11 was dismissed, and that view was confirmed by the erstwhile Andhra Pradesh High Court in 2011.

Why the objection was dismissed

The executing court dismissed the claim petition on 29 January 2019 for three paraphrased reasons. The petitioner had failed to prove ownership of the specific schedule property because Municipal Nos. 21-1-1098/9 to 11 were not explicitly listed in the Gazette Notification, and had not placed the Farman, the Survey Commission Report or the Managing Trustee's authorisation on record. The petition under Order XXI Rule 58 of the Code of Civil Procedure was not maintainable because the execution petition sought delivery of possession, not attachment. And the claimant had failed to establish that the schedule property was declared waqf property or that it was the same property decided in the 2002 suit.

The Telangana High Court dismissed the appeal. Its reasons were that the witness who deposed for the trust had filed no document showing he was authorised to file the claim petition, and that once the Waqf Board directly controls the property the Managing Trustees have no locus standi; that he had not produced the Farman or the plan he relied on; that no document showed the municipal numbers relied on by the decree-holders were fabricated, and he had admitted that Municipal Nos. 21-1-1098/9 to 11 still exist in the municipal record; that the Gazette Notification does not mention those numbers and, though it refers to seven mulgies, gives no municipal numbers, and the trust had filed no Waqf Survey Commission Report linking those mulgies to the schedule property; that the trust had not challenged the 1353 Fasli sale deed, while the decree-holder has a sale deed executed through court process and the trust had produced nothing to prove title; and that Order XXI Rule 58 governs objections to attachment, so where the execution petition sought delivery of possession the claim petition ought to have been filed under Order XXI Rule 97.

The wrong provision is not a ground

Mr C. Aryama Sundaram, senior counsel for the trust, relied on Periyammal (Dead) through Legal Representatives v. V. Rajamani. The Court summarised the principles from it. Order XXI Rule 35 gives the executing court jurisdiction to remove any person bound by the decree who refuses to vacate. Rules 97 to 101 deal with situations where execution is obstructed or resisted by “any person”, including a stranger to the decree who is not bound by it or who claims an independent right, title or interest. Rule 97 applies before a decree for possession is executed, allowing the court to resolve an obstructionist's grievance before delivering the decree to the holder; Rule 99 applies later, when a stranger claiming rights has been dispossessed and seeks restoration. If a purported stranger resists execution, the decree-holder's sole remedy lies under Rule 97, and he cannot bypass the obstruction and insist on reissuance of the warrant for possession under Rule 35. And courts adjudicating an application under Rule 97 must do so in accordance with Rule 101 and conduct a full-fledged inquiry into all questions, including those relating to right, title or interest in the property arising between the parties.

The quoting of the wrong provision, the submission went, is no ground for rejecting a third-party objector's prayer. On the substance, the decisive factor in a matter of this kind is not the claim of the decree-holder or of the objector but the identity of the property in the old and contemporaneous revenue or municipal records. The documents relied on by the decree-holder were sketchy and did not establish title, let alone defeat the title recognised in favour of the trust in earlier rounds of litigation that had gone up to the Supreme Court. The boundaries in the 1943 sale deed and in the decree schedule are distinct. In the suit itself, the identity of the property was not an issue. The burden had been wrongly fastened on the third party.

Mr Basava Prabhu S. Patil, senior counsel for the first respondent, argued that no ground was made out for interference and that the decree-holder was taking possession of the property covered by the agreement and the decree. Asked by the Court whether the schedules in the 1943 sale deed, the agreement of sale and the sale deed executed by the court are correlated and established by documentary evidence, he fairly stated that the decree-holder was of the opinion that the third-party objector had to discharge the burden — and suggested that the matter be remanded with both parties given an opportunity to file additional pleas and adduce additional evidence.

Remand

The Court recorded that for the view it proposed to take it had not gone in detail into the competing claims. It was satisfied that some of the findings in the impugned judgments do not conform to well-established principles of law. The judgments were set aside and, as had been suggested, the matter referred to the executing court for fresh disposal in accordance with law, with directions to allow further or fresh pleas on behalf of both parties, conduct a fresh inquiry in the light of Periyammal, and dispose of the matter afresh.

The civil appeal was allowed and the matter remanded to the VII Senior Civil Judge, City Civil Court at Hyderabad, with no order as to costs.