ORDER
L. Narasimha Reddy, J.
1. This application is filed under Section 151 Civil Procedure Code (C.P.C), by the legal representatives of Defendant Nos. 3, 4, 5, 6, 7, 9, 10, 11, 18, 19, 20 and 22, in C.S. No. 7 of 1958, for the relief of a direction to the Receivers-cum-Commissioners, to distribute the land of an extent of Ac. 16-16 guntas, situate in Survey No. 56/1P, 57, 59/1P, 59/3 and 59/4 of Kakaguda Village, Tirumalaghery Mandal, among the share holders, in terms of the preliminary decree.
2. The applicants have pleaded the following facts:
C.S. No. 7 of 1958 was filed in this Court, for the relief of partition and separate possession of ‘Matrooka’ properties of late Nawab Moi-nud-Dolah Bahadur, and late Asman Jah Bahadur, shown in the schedule to the suit. A preliminary decree was passed on 6.4.1959, on the basis of a compromise, entered into, among some of the parties. The manner of distribution of various items of properties, was indicated in the preliminary decree. However, Item Nos. 230 to 254 of Schedule ‘A’, which are Makhtas, were directed to be dealt with, depending on the outcome of the proceedings before the Appellate Authority, under the Jagir Abolition Regulation, 1958 (for short “Regulations”). The preliminary decree inter alia provided for, division and distribution of the suit schedule properties, in Item Nos. 1 to 229 of ‘A’ schedule among Defendant Nos. 2 to 12, and 14 to 22, in such a way that each son shall get the share of 2/33, and each daughter shall get the share of 1/33.
3. Item Nos. 230 to 254 of ‘A’ schedule are Makhta Villages. Appeals were pending before the Board of Revenue, by that time under the Regulations. Defendants 2 to 22 were held to be entitled to get the arrears of income, future income, compensation, commutation or sale proceeds of those items, as and when they are restored in favour of the Asman Jahi Paigah. The shares, for this purpose were stipulated at 2/35 for each son, and 1/35 for each daughter. According to the applicants, the validity of the proceedings, in relation to the lands in Item Nos. 230 to 254 of ‘A’ schedule, was the subject-matter of Writ Petition Nos.632 and 768 of 1960 filed by Nawab Zaheeryajung, and in view of the judgment therein, rendered by a Division Bench of this Court, on 30.3.1964, proceedings initiated against Item Nos. 230 to 254 under the Regulations, have virtually abated. On this premise, it is claimed that the land in Kakaguda Village, which figures as Item No. 239 in ‘A’ schedule, particularly the one in Sy. Nos. 56/1P, 57, 59/1P, 59/3 and 59/4, admeasuring 16-16 guntas, is liable to be partitioned among the parties to the suit, in terms of preliminary decree.
4. Respondents 1 and 2 are the Receiver-cum-Commissioners, appointed by this Court in the suit. Respondents 3 to 36 are the legal representatives of deceased Defendant Nos.2, 3, 4, 6, 9, 10 and 13. Defendants 17 and 21 are impleaded as Respondent Nos.37 and 38 respectively. Respondent No. 39 is the Government of Andhra Pradesh, Respondent No. 40 is the Jagir Administrator and the District Collector, Hyderabad, is impleaded as Respondent No. 41. Since resistance to various steps, said to have been taken by the receiver, has been from the Military and Cantonment authorities, they are impleaded as Respondent Nos. 42 to 47.
5. This application is opposed by Respondents 42 to 47 alone. According to them, the application is not maintainable, for more reasons than one, such as the absence of a final decree, bar under limitation, application not being in conformity with the preliminary decree, non-description of the property in the suit schedule. It is their case that an extent of Ac. 45-12 gts. in Survey Nos. 56/1P, 57, 59/1P, 59/3 and 59/4 of Kakaguda Village, was under the control of the British Army, ever since 1340 Fasli (Corresponding to 1931), and after the Nizam’s Rule ended, in the erstwhile state of Hyderabad, the land came under the control of Indian Army. It is stated that barracks, family accommodation quarters, other buildings and compound wall were constructed, much before the suit was filed, and that all the lands with the building, were entered in the General Land Register (for short “G.L.R”) as Item No. 452. It is stated that the records maintained by the Revenue Department of the State Government, also disclose that the land is in un-interrupted possession and enjoyment of the Ministry of Defence. They deny all the allegations raised, in the affidavit filed in support of the petition.
6. The applicants filed a reply to the counter-affidavit. The Respondent Nos. 40 to 47, in turn, filed a rejoinder contradicting the plea raised by the applicants in their reply affidavit.
7. The applicants as well as the respondents did not adduce any oral evidence. However, they have filed certain documents in support of their respective claims. Since those documents are originals or certified copies of the proceedings of the Government, the parties do not object for the same to be taken into account.
8. Sri M.P. Chandramouly, learned Counsel for the applicants submits that no final decree has been passed in C.S. No. 7 of 1958 so far, and that the present application is maintainable. He also contends that no limitation is prescribed for applications of this sort. He submits that though the preliminary decree enabled the applicants herein to receive arrears of income, commutation or sale proceeds in respect of Item Nos. 230 to 254 of ‘A’ schedule properties, there is no prohibition for the parties to partition the land in those items, if it is otherwise available and feasible. He contends that the very initiation of the proceedings under the Regulations against the lands in Kakaguda Village, was misconceived and that the same is evident from the judgment of this Court in W.P. Nos. 632 and 768 of 1960.
9. Learned Counsel submits that the proceedings of various authorities such as the Revenue Board, in relation to the land disclose that the said land was not liable to be proceeded against, under the Regulations. He submits that a direction to the Receiver to partition the said item of land among the parties, does not run contrary to the provisions of C.P.C, or the preliminary decree. He has placed reliance upon several judgments in support of various points urged by him.
10. Sri Deepak Bhattacharjee, learned Standing Counsel for Respondent Nos. 42 to 47 raised preliminary objection as to the very maintainability of the application; He submits that the decree in C.S.7 of 1958, is based on a compromise and as such, it deserves to be treated as a final decree itself. On this premise, learned Counsel submits that only an E.P can be filed for enforcing the rights under the decree, and if so treated, the present application is barred by limitation, under Article 136 of the Schedule to the Limitation Act. Learned Counsel submits that even otherwise, the application is barred under Article 137. He contends that the preliminary decree is not binding on the persons, who are not parties to it, and Respondents 42 to 47 are not bound by it, since they did not figure as parties therein. He also submits that the land in respect of which, the relief is claimed, in the present application, was not at all described in the suit schedule, and there is clear infraction of Rule 3, of Order VII C.P.C.
11. The further contention of the learned Counsel is that a Commissioner may be appointed in a suit for partition, only for the purpose of dividing the properties, which are already identified, and the Commissioner can never be assigned the function of identifying the land, which, the parties to the suit themselves are not aware, or delivering the possession of the same to the parties. He submits that the relief claimed by the applicants runs counter to the scheme of Provisions 35 and 36 of Order 21 C.P.C. On merits, learned Counsel submits that there is voluminous record to disclose that the land is vested with the military authorities and that even as on today, military barracks, and other buildings are standing on the land.
12. Before dealing with the contentions of the parties, on merits, certain preliminary aspects need to be addressed. One of it is about the nature of the decree. It is not in dispute that C.S.7/58 was filed for the relief of partition of ‘Matrooka’ properties of late Nawab Moin-ud-Dolah Bahadur, and late Asman Jah Bahadur. Order XX, Rules 9 to 19, C.P.C, prescribe the form of decrees to be drawn, in various kinds of suits. In suits for the relief of recovery of immovable property, delivery of moveable property, specific performance of contract, recovery of money etc., the decree constitutes the final outcome of a suit, and such decrees are straightaway executable. However, in suits such as those for dissolution of partnership, redemption of accounts, Foreclosure or Redemption of mortgages, suits for partition and separate possession etc. preliminary and final decrees are required to be drawn.
13. Rule 18 of Order XX C.P.C., which deals with decrees in suits for partition and possession reads as under:
Rule 18: Decree in suit for partition of property or separate possession of a share therein- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,–
(1) if and insofar as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) if and insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required”.
14. From a reading of this, it is evident that, where the subject-matter of the suit is an estate assessed to payment of revenue to the Government, the Court shall direct that the partition or separation, be made by the Collector, or any Gazetted subordinate, deputed by him, in accordance with Section 54 C.P.C. In such cases, the decree is one and final and the necessity to draw the preliminary and final decree does not arise. Where, however, the decree relates to the other movable or immovable properties; a preliminary decree, declaring the rights of several parties interested in the property, has to be drawn. Here again, the requirement of drawing final decree is not absolute. It is only when “the partition or separation cannot be conveniently made without further inquiry”, that the preliminary decree has to be drawn. The final decree emerges after such further steps, which are mostly in the form of appointment of Commissioner, division of properties by metes and bounds are taken. The powers and functions of Commissioners in such cases are governed by the provisions of Rule 13, Order XVI C.P.C. It is for this reason that the nature of a decree, namely whether it is final or preliminary, has to be decided by taking into account the contents of the decree, than the nomenclature given to it, or the category of the suit from which it arises. What emerges from the relevant provisions and decided cases is that; if a decree in the partition suit determines the shares, and leaves further exercise of the division or separation of the property, into various shares as relegated to a subsequent stage, it is a preliminary decree. On the other hand, if the decree so drawn, by itself indicates the shares of the parties, and provides for distribution of identified items in favour of the respective parties, it answers the description of a final decree. Such a decree can straightaway be executed without the necessity of filing an application for final decree. Where, however, the matter warrants passing of a preliminary and a final decree, the latter alone becomes executable (See Venkata Reddy v. Pethi Reddy, ). The possibility of a decree being partly preliminary and partly final, cannot be ruled out, depending upon its contents or directions in it.
15. In the instant case, the decree is based on the compromise entered into between the parties. They have agreed upon the method of division and allotment of shares. The decree is so clear and minute in its operation that it provided for the shares, nature of properties, and even the respective amounts to be paid to various parties. The appointment of Commissioner was in terms of the compromise deeds, and the work assigned to him was not the division of the properties, but to undertake certain activities, which are mostly ministerial in nature. Even if the decree is preliminary vis-a-vis, some properties or some of the parties, it can be treated as final, in respect of such properties and parties, if the division is complete and the entitlement is fully provided for. In Panchangula Venkatasubbamma v. Kambhampati Venkatappaiah Sastri and Anr., 1971 (I) ALT 212, a Division Bench of this Court held that a compromise decree of such purport becomes the final decree and any further step can only by way of execution.
16. Whatever may have been the nature of the decree in relation to the properties in Item Nos. 1 to 239 of ‘A’ schedule, vis-a-vis, the properties in Item Nos. 230 to 254, it can fairly be said to be final. Those items were the subject-matter of appeal before the Revenue Board. Being Makthas, these items of properties were yielding some income to the Makthadars, and in the event of their being taken over under the Regulations, commutation was payable. The relevant clause of the decree in relation to those items, reads as under:
4(g):
“For the purpose of effecting the distribution of properties among the persons entitled thereto the Commissioners-Receivers will have powers to sell the said properties by public auction and exercise all powers necessary for effecting the division of the same between Defendant Nos. 2 to 12 and 14 to 22 each son getting 2/33 and each daughter getting 1/33 in the properties of Schedule “A” except Items 230 to 254 of this Schedule and items of properties allotted to the plaintiff. The Defendant Nos. 2 to 22 will get their share, namely, each son getting 2/35 and each daughter getting 1/ 35 from the arrears of income future income, compensation or commutation or sale proceeds of the Items 230 to 254 of Schedule “A ” detailed under the head of “Makhtas” in case of the same are restored or released in favour of Paigah Asman Jahi”.
17. From a reading of this clause, it is evident that it provided for both the contingencies, in respect of Item Nos. 230 to 254, namely, whether the lands are retained as Makhtas, or if they stand vested in the Government, by operation of Regulations. Therefore, no other relief, except the one provided for, under this clause can be claimed, unless the decree is amended. Distribution of the land in any of these items, is not at all contemplated under the decree. It is apt to refer to the judgment of the Madras High Court in S. V. Muthu v. Veerammal, , wherein it was observed as under:
“If the preliminary decree already passed does not contain any declaration as to the rights of the defendants, their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified”.
In that view of the matter, the application does not accord with the decree.
18. Even if it is proceeded on the footing, that there does not exist any prohibition in the decree, for partition of the land, or that such a course can be implied, when distribution of sale proceeds is provided for under it, the requirement under Rule 18 of Order XX C.P.C., has to be kept in mind. If the land is an estate assessed to revenue, the Court is under an obligation to refer the matter to the Collector, under clause (1) thereof, and further steps are to be taken in accordance with Section 54 C.P.C. It is not permissible for a Court to resort to any other steps, if the land is an estate and assessed to revenue. Neither there is any pleading, nor any findings in this behalf. The lands are admittedly Makthas, and undoubtedly, Makthas are treated as estates.
19. The applicants seek a direction to the Commissioner to distribute the land of Ac.16-16 guntas, in survey numbers referred to above, among the shareholders of the preliminary decree. The Commissioner is appointed under Rule 13 of Order XXVI C.P.C. It reads as under:
“Commission to make partition of immovable property:–Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by Section 54, issue a Commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree”.
20. It discloses that the appointment of a Commissioner in a suit for partition, can take place, only, in cases not provided for under Section 54 C.P.C. As observed earlier, if the decree passed in a suit for partition deals with estates assessed to revenue, and other properties, the procedure stipulated under Clause (1) of Rule 18 of Order XX C.P.C., needs to be followed, in respect of lands which are part of an estate. It is impermissible to appoint a Commissioner, in respect of properties, which are to be dealt with under Clause (1) of Rule 18 of Order 20, and Section 54 C.P.C. Even where a Commissioner is appointed in a suit for partition, which relates to Estates and other kinds of properties, he can deal with only such properties which cannot be dealt with under Section 54 C.P.C. The lands in question, prima facie, attract Section 54 C.P.C. The applicants are not able to demonstrate that the land in question has lost its character of “estate”. Hence, the prayer made by the applicants cannot be acceded to.
21. Even assuming that the lands in question, are not part of an estate, it needs to be observed that the power of a Commissioner, does not extend to such a stage as to identify the properties, divide them into parts, and deliver possession of the same to the respective parties. Identification of the properties, which are available for partition, is the Junction of a Court and in fact, it constitutes the basis for passing a final decree. The role of a Commissioner in a suit for partition, is limited to dividing the properties, which are already identified, to shares, duly taking into account the view of the parties. Rule 13 of Order 21 C.P.C. makes this amply clear. Any division proposed by him, becomes operative only on being accepted by the Court. Delivery of possession of the identified and allotted shares, is a step to be taken in execution. The execution, in turn, can take place, only after a final decree is passed and axiomatically, with the passing of the final decree, the role assigned to the Commissioner virtually comes to an end.
22. In Munnalal v. Rajkumar, , the Supreme Court explained the scope of the powers of the Commissioner as under:
“By so authorizing the Commissioner, the Trial Court did not abdicate its functions to the Commissioner; the Commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the Commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof.”
Therefore, the prayer in the application, falls outside the scope of the relevant provisions of C.P.C.
23. Be that as it may, there is formidable objection raised by the respondents, which needs to be met by the applicants. The description of the property, which is the subject-matter of the suit, is important as the statement of facts that constitute the cause of action. It is only when the dispute is in relation to identified property, that the Courts would be in a position to adjudicate effectively, upon it. There cannot be any pronouncement upon the property or the subject-matter, which is not properly described. This requirement becomes prominent in the case of immovable properties. Rule 3 of Order 7 C.P.C. reads as under:
Rule 3, Order VII C.P.C:
“Where the subject-matter of the suit is immovable property:–Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property, sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers”.
24. Unless the property is identified with specific boundaries or numbers assigned, in record of settlement of survey, any amount of description, will not be helpful in identifying the property. The rigor of this Rule is mellowed to certain extent with the principles; such as that the boundaries will prevail over the extents, and that if the parties have understood the identity of the property, minor discrepancy or lapses as to the description is not fatal to the proceedings. The basic requirement, however, is that the party seeking, the relief, should describe the property, by stating the boundaries and the number assigned to it, by the Revenue or Municipal authorities. This requirement becomes acute in suits for partition, because of its impact on the shares that the parties to it, may get.
25. If the description of the property, which is subject-matter of the present application is examined, in this context, it is too difficult to undertake any adjudication worth its name. The relief claimed in this application is in respect of land admeasuring Ac.16.16 guntas, in Survey Nos. 56/1P, 57, 59/1P, 59/3 and 59/4 of Kakaguda Village, Tirumagiri Mandal, Hyderabad District. This is referable to Item No. 238 of the schedule to the decree. That item is described in the schedule as under:
LIST OF MAKTAS (UNDER APPEAL WITH
REVENUE BOARD)
__________________________________
SI. No. Property
__________________________________
230. Maktah Bahadaru Ali.
…….
…….
239 Bagh Kakagud
__________________________________
26. Neither the extent, nor the survey numbers, much less the boundaries of the land, are described. Even if maximum latitude is given, for any lapses in the description, it is next to impossibility to correlate the subject-matter of this application, to the schedule to the decree. When the schedule refers nothing more than to a Maktha Village, which admittedly contains in it different kinds of properties, buildings, military establishments etc., it is impermissible to draw an inference that the petition schedule properties are covered by it.
27. Learned Counsel for the applicants relies upon a judgment of Supreme Court in Pratibha Singh v. Shanti Devi Prasad, . The purport of the judgment is to the extent, that mere defect in the description of the property in the schedule, by itself, cannot be a ground to refuse execution. Their Lordships never relaxed the requirement under Rule 3 of Order VII C.P.C., to the extent of rendering it otiose. In that case, the property was described with reference to Khata Number, Plot No., Sub-Plot No., Area and boundaries. The lapse, if any, was only as to supply of the revenue map. The Supreme Court reiterated the object underlying Rule 3 of Order VII C.P.C., and held that mere failure to supply the map is not fatal, where the property can be identified on the basis of the particulars furnished in the plaint. It reads as under:
Order 7, Rule 3 CPC requires where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a proper decree as required by Order 20, Rule 3 C.P.C. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of RS Plot No. 595 and having seen the maps annexed with the registered sale deeds of the defendant judgment-debtors we are clearly of the opinion that Sub-plots Nos. 595/1 and 595/II were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear I records of settlement or survey. The plaintiffs ought to have filed the map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to it promptly. The default or carelessness of the parties does not absolve the Trial Court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming the subject-matter of the suit being filed. This is the first error”.
28. If the applicants were of the view that the land claimed by them is part of the suit schedule, they should have taken necessary steps to get the schedule amended. They have not chosen to do so. If the request in this application is to be acceded to, they would become entitled to claim any land in the 24 Maktha Villages, irrespective of the fact that, whether such land is private, vested in the Government, covered by buildings, tanks, roads, part of military establishments etc. If the parties to the suit have a luxury of describing the properties, with reference to villages, and do not care to furnish the extents and survey numbers, it is not the function of the Court to go in search of the lands, that may be available for the parties. It is true that several instances have taken place in the suits filed, in relation to Paigah properties, wherein, directions for delivery of possession of hundreds of acres of urban and urbanisable lands, were given without verifying, as to whether the proceedings accord with the provisions of the C.P.C., or whether the description of the property accords, with the schedule. Such instances, if at all demonstrate gross misuse of process of Court, than constitute precedents. Most of such orders were set aside either by Division Benches of this Court, or by the Supreme Court. In Narayana Sarma v. M/s. Goldstom Exports (P) Ltd., , the Supreme Court set aside the similar directions, and expressed its doubt, as to whether such applications are maintainable at all.
29. Learned Counsel for the respondents has referred to various records to show that the land in question has vested in the defence department several decades ago. Learned Counsel for the applicants, on the other hand, opposed the plea on the ground that the entries in GLR etc, cannot constitute the proof of title. Notwithstanding this controversy, this much can be said that the record disclosed that the land is in possession and enjoyment of Respondents 42 to 47 since several decades. This Court does not intend to go into the question of title, having regard to the limited scope of these applications.
30. Several others contentions were also urged by the parties which are mostly subsidiary in nature. Since this Court is not convinced to grant the relief to the applicants, in view of the findings recorded in the preceding paragraphs, it is not necessary to delve into the same.
31. For the foregoing reasons, the application is dismissed. There shall be no order as to costs,