Humayun Dhanraj Gir vs State Of Telangana

Heard Sri Vedula Srinivas, learned senior counsel appearing on behalf of learned counsel for the petitioner and learned Assistant Government Pleader for Revenue appearing for respondent Nos.1 to 3 and Sri.A.Venkatesh, learned senior counsel appearing on behalf of Sri.Sheelam Ashok Reddy, learned counsel appearing for respondent No.4. With their consent this writ petition is taken up for disposal.

This writ petition has been filed seeking the following prayer:-

“to declare the action of the 3rd respondent in not receiving documents pertaining to the property in Municipal Nos.14-2-335 (14-2-335/1), situated at Gyan Bagh Palace, Goshamahal, Hyderabad on the ground of the order of this Honourable Court in CMA No.118/2020, dt 08.10.2020, to which the petitioner herein is not a party and which does not operate against the petitioner, as arbitrary, unreasonable and illegal and to issue a consequential direction to the 3rd respondent to receive, register and release the documents presented by the petitioners pertaining to the property admeasuring 6012.84 sq yards in Municipal Nos.14-2-335 (14-2-335/1), situated at Gyan Bagh Palace, Goshamahal, Hyderabad without reference to the pendency of OS No.781 of 2019 or the orders passed in CMA No.118 of 2020.”

The case of the petitioner is that the property admeasuring 50107 Sq.yards, in Sy.Nos.14-2-335 (14-2-335/1), 14-2-334, 334/2 and 333, Gyan Bagh Palace, Goshamahal, Hyderabad was originally owned by Late.Raja Narsinggirji and after his demise those properties were settled in favour of petitioner’s father i.e., Sri.Raja Dhanrajgiri, through settlement deed bearing No.75/1923 dated 09.04.1923. It is further submitted that Sri.Raja Mahendragir, filed O.S.No.76 of 1970 on the file of Additional Chief Judge, City Civil Court, Hyderabad (herinafter referred as ‘Court below’), against his father Raja Dhanrajgiri, brothers and sisters for partition of family properties. The property in Gyan Bagh Palace, Goshamahal, Hyderabad, is one of the properties forming part of the partition in O.S.No.76 of 1970. The Court below passed preliminary decree dated 24.04.1986 in O.S.No.76 of 1970, wherein the share of family members were decided and the petitioner’s share was of 12% in the Gyan Bagh palace. Thereafter, no final decree was passed in the said OS.

The further case of the petitioner is that after the death of Sri.Raja Dhanrajgiri, his share has devolved upon his sons i.e., Tejvangir and Adityavangir and the petitioner’s share was fallen to an extent of 6012.84 Sq.yards out of the 50107 Sq.yards in the Gyan Bagh Palace. In view of the above, the petitioner is entitled to dispose of un-divided share to an extent of 6012.84 Sq.yards.

Learned senior counsel appearing for the petitioner submitted that respondent No.4 filed O.S.No.781 of 2019 on the file of III Additional Chief Judge, City Civil Court, Hyderabad (herein after reffered as ‘Trial Court), contending that he has entered into an agreement of Sale dated 08.06.2011, with Tejvangir and Adityavangir, in respect of 600 Sq.yards, abutting 40 feet wide road from out of the 23% of undivided share in 50107 Sq.yards of the Gyan Bagh Palace. The sale consideration for the 600 Sq.yards was decided to Rs.90 lakhs, out of which Rs.45 lakhs were paid towards part consideration. In the above said OS it was further contended that respondent No.4 has purchased another extent of 1000 Sq.yards under an oral agreement of sale for Rs.2.5 crores and has also paid Rs.10 lakhs in cash and Rs.42 lakh in kind by of meeting expenditure towards the renovation of the premises. It is further submitted that the Trial Court vide order dated 24.01.2020 has dismissed the I.A.No.1490 of 2019 in O.S.No.781 of 2019. Aggrieved by the same, respondent No.4 approached this Court by filing C.M.A No.118 of 2020.

Learned senior counsel appearing for the petitioner submitted that the Division Bench of this Court vide order dated 08.10.2020 has allowed the C.M.A No.118 of 2020 in part and the learned counsel has further drawn attention of this Court to the following Paragraphs of the above said order:-

“52. In this view of the matter, any alienation of specific portion of the property which is subject matter of O.S.76 of 1970 by the respondents and rest of the share holders under Ex.P8 dt.18.8.2018 might potentially affect the prior right created in appellant under Ex.P6 agreement of sale dt.28.9.2011 as there is every possibility of the land sold to 3rd respondent including/covering the land which the appellant might get if his suit were to be decreed. This would cause serious prejudice to the appellant.

Therefore we are of the opinion, that the view of the trial court that the appellant did not make out prima facie case for grant of injunction as regards 'A' schedule property, is unsustainable.

However coming to 'B' schedule property, since the appellant had pleaded only an oral agreement of sale, we are of the view that the appellant has not made out at this stage prima facie case and that he is entitled to a temporary injunction.

Accordingly, we allow the appeal in part and allow IA No.1490 of 2019 in part and grant temporary injunction pending suit restraining all the respondents from alienating, encumbering or creating any third party rights over the A schedule property which is subject matter of OS No.781 of 2019. The plea of appellant for temporary injunction pending suit restraining all the respondents from alienating, encumbering or creating any third party rights over the B schedule property is however rejected. No order as to costs.

The Court below shall decide the suit uninfluenced by the observations made by us in this order and also the observations contained in the impugned order.”

Learned senior counsel appearing for the petitioner submitted that subsequent to the order dated 08.10.2020, the respondent No.4 on 03.03.2021 and 10.03.2021, addressed letters to respondent No.3, by informing about the order passed in C.M.A No.118 of 2020 and requested respondent No.3 to prevent transaction in respect of the subject property and further requested to enter the subject property in prohibited list. In view of the above, the respondent No.3 is not registering the documents presented by the petitioner with respect of alienation of his undivided share in the subject property. Aggrieved by the action of respondent No.3, this writ petition is filed.

Learned senior counsel appearing for the petitioner submitted that the other sharers of the subject property has also entered into an agreements of sale with respect to their undivided share in the subject property and upon the inaction of Registering Authorities in registering the same, the Vendors by filling W.P.Nos.40236 of 2022 and 6705 of 2023, approached this Court and the same was disposed of by order dated 02.11.2022 and 10.03.2023, respectively, with a direction to Registering Authorities to receive, process and release the sale deed presented by the vendors in respect of the undivided share of property, situated at Gyan Bagh, Goshamahal, Hyderabad, without reference to the order passed in C.M.A.No.118 of 2020 dated 08.10.2020.

Learned Senior Counsel has also drawn attention of this Court to the order dated 27.04.2023 passed by this Court in W.P.No.12128 of 2023. The said writ petition was filed by Sri.Raja Mahendra Gir S/o Raja Dhanrajgiri, aggrieved by the action of Registering Authorities in not registering the documents presented by the petitioner with respect to his undivided share of 25% in the Gyan Bagh, Goshamahal, Hyderabad. The order dated 27.04.2023 passed in W.P.No.12128 of 2023 reads as under:-

“4. Having regard to the above and the facts and circumstance of the case as noted above, the action of respondent No.3 in refusing to receive and process the document sought to be presented by the petitioner in respect of above referred property i.e., 12501 square yards, being part of Municipal property bearing No.14-2-335, is not in accordance with law and the Sub-Registrar is under obligation to receive and process the document that is sought to be presented by the petitioner for registration in terms of Section 71 of the Registration Act, 1908 read with Rule 58 of the Telangana Rules under the Registration Act, 1908.

Accordingly, the Writ Petition is disposed of directing respondent No.3 to receive and process the document sought to be presented by the petitioner in respect of undivided property admeasuring 12501 square yards bearing Municipal No.14-2-335, out of total extent of 50,000 square yards, situated at Gyan Bagh, Goshamahal, Hyderabad, without reference to the order passed by this Court in C.M.A.No. 118 of 2020, dated 08.10.2020 and complete the same within a period of three (3) weeks from the date of presentation of the document. There shall be no order as to costs.

Miscellaneous petitions, pending if any in this Writ Petition, shall stand closed.”

Learned senior counsel submits that by virtue of rights accrued under preliminary decree dated 24.04.1986, passed by the Court below in O.S.No.76 of 1970, the petitioner got undivided share of 12% i.e 6012.84 Sq.yards in the Gyan Bagh Palace, Hyderabad and the petitioner has right to alienate the same. It is further contended that with the above said intention, petitioner approached respondent No.3 and the inaction of respondent No.3 in registering the documents presented by the petitioner is bad and not in accordance with law.

Learned senior counsel appearing for respondent No.4, would submit on the very maintainability of the writ petition that the writ petition was filed on 14.06.2023 and at that point of time, neither any transaction was made nor any sale deed was executed and further contended that the writ petition was filed on the possibility of getting a purchaser and the same is premature, misconceived.

Learned senior counsel appearing for respondent No.4 would further submit that in C.M.A No.118 of 2020 the Division Bench of this Court vide order dated 08.10.2020, allowed the IA No.1490 of 2019 in O.S.No.781 of 2019 in part and granted temporary injunction pending suit restraining all the respondents from alienating, encumbering or creating any third party rights over the ‘A’ schedule property which is subject matter of O.S No.781 of 2019 and further submitted that the same has become final as it has not been challenged.

Learned senior counsel appearing for the petitioner submitted that the petitioner is only alienating his part of share in the subject property and the claim of respondent No.4 is only with respect to 600 Sq.yards in the undivided extent falling to the shares of Tejvangir and Adityanvangir and that he cannot have any claim against the other sharers and even the other sharers neither in O.S.No.781 of 2019 nor in CMA No.118 of 2020 are parties. It is further submitted that the Registering Authorities in pursuant to the orders dated 02.11.2022, 10.03.2023 and 27.04.2023 passed in W.P.No.40236 of 2022 and W.P.Nos.6705 and 12128 of 2023 respectively, has registered the document presented by the vendors/shares and pray this Court to direct the Registering Authorities to register and release the documents presented by the petitioner in respect of his un divided share in the subject property.

On contra, learned senior counsel appearing for respondent No.4 submitted that in the above said orders, there was a clear direction to the Registering Authorities to register only to the extent of undivided share of the sharers. However, the Authorities have registered the documents and in the respective sale deeds a copy of Map is being annexed, clearing defining the specific portion, which is contrary to the order passed by the Division Bench of this Court in C.M.A.No.118 of 2020 dated 08.10.2020 and the orders passed in W.P.No.40236 of 2022 and W.P.Nos.6705 and 12128 of 2023 dated 02.11.2022, 10.03.2023 and 27.04.2023, respectively. It is further submitted that the respondent No.4 is taking steps to recall the orders passed in the above mentioned writ petitions.

At this stage, learned senior counsel appearing for the petitioner submitted that the final decree in O.S No. 76 of 1970 is pending and unless and until final decree proceeding are concluded, it would be difficult to identify the extent of respective shares of the sharers.

Learned senior counsel appearing for respondent No.4 submits that the Registering Authorities had misconceived with the direction given in W.P.No.40236 of 2022; W.P.Nos.6705 and 12128 of 2023 and have excessively added the Map showing the demarcation, whereas in above mentioned writ petitions, a specific direction was given to the Registering Authorities to register and release the documents presented by the vendors/sharers pertaining to their shares in Gyan Bagh Palace, Goshamahal, Hyderabad, without defining the specific portion.

After arguing the matter at length, learned senior counsel appearing for the petitioner has acceded to the above submissions and further submitted that while registering the documents with regard to the undivided share of the petitioner in subject property, the Registering Authorities may specifically be directed not to append/annex any document in the style of map, showing any demarcation.

Learned Assistant Government Pleader appearing for respondent Nos.1 to 3 submitted that the respondents will follow the procedure contemplated under Section 71 of the Registration Act, 1908 (for short ‘the Act, 1908’) and Rule 58 of the Telangana Rules under the Act, 1908. The learned senior counsel appearing for the petitioner has not disputed the same.

Upon perusal of the prayer of the writ petition, it appears that there is no draft document which the petitioner is seeking direction for registration; which means that the petitioner is only seeking direction to register his part of unidentified, undivided share in the subject property. In the orders which the petitioner’s has relied upon, there is a specific direction to Registering Authorities to receive and process the sale deed presented by the vendors/sharers.

Having considered the above facts and circumstance and in view of the submission made by learned counsel appearing on either side, the Writ Petition is disposed of directing respondent No.3 to receive and process the documents sought to be presented by the petitioner in respect of undivided property admeasuring 6012.84 square yards in Municipal No.14-2-335 (14-2-335/1), situated at Gyan Bagh, Goshamahal, Hyderabad, without reference to the orders passed in C.M.A.No.118 of 2020 dated 08.10.2020, as expeditiously as possible, preferably within a period of three (03) weeks from the date of receipt of presentation of the document and communicate the same to the petitioner. It is also made clear that the Registering Authorities shall not append/annex any document in style of map which shows demarcation. It is open to the Registering Authority to refuse to register the documents, by specifically assign the reasons in terms of Section 71 of the Act, 1908 and communicate the said decision to the petitioner.

Accordingly this writ petition is disposed of. Miscellaneous applications, if any pending, shall stand closed. No order as to costs.