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TMI Blog2003 (7) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 4. The case of the plaintiff is that the plaint schedule land is situated in Vada Cheepurpally village, Anakepalli Taluk, Visakhapatnam District, which forms part of Cheepurpally Estate. The estate holder granted patta No. 98 in favour of one R. Gajapathi Rao and he was leasing out the properties to the tenants for the purpose of cultivation and also excavation of lime shells and was paying assessment thereon to the landholder. That Gajapathi Rao seems to have leased out 350 acres of land under registered kadapa on 7.11.1927 (Ex.A3) to one Hanumahtha Rao Naidu. While things stood thus, on 29.11.1948 Mr. Gajapthi Rao sold the entire land to his daughter by name Mrs. B.V.S. Narayan Rao, covered by patta No. 98 for a sum of Rs. 3,000/- under registered sale deed. The case of the alienees is that she is getting the land cultivated by giving on lease under registered lease deed. We need not go into those details. The estate was notified on 1.10.1951 and taken over by the Government on 10.5.1952. Before the estate was notified, no survey seems to have been taken place in the estate. The lessee as well as the alienee Mrs. B.V.S. Narayana Rao applied for ryotwari patta under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineral Products Company as well as the Collector, contended that the Settlement Officer by wrongly demarcating the land included the land in Devada in the patta, ignoring the demarcation of the boundary between the two villages i.e., Cheepurupally and Devada village, as early as in 1912. As per the survey done at that point of time, the extent of land could not be more than 350 acres that was covered by patta No. 98. The said Settlement Officer came to the conclusion that the Survey of Devada village done in 1912 is not binding on the plaintiff and he had jurisdiction to enquire into the boundaries. After making local inspection by himself, as well as by Tahsildar with the assistance of Deputy Surveyor belonging to No. 7 party, Vizianagaram, he accepted the report of the Settlement Tahsildar and held that the correct eastern boundary of Cheepurupally (west) village as well as the western boundary of Devada Mokhasa village is the same as in the sketch filed by the Settlement Tahsildar and granted ryotwari patta for the entire extent comprised within the limits of the boundaries specified in the registered kadapa Ex.P-1 and Ex.P-4 i.e., relevant entry in Ex.B-3, survey register. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his estate. The, primary question for examination is, therefore, whether the lands now claimed by the revision petitioners before the Board are situated within the limits of Cheepurupalli Zamin village or are situated within the adjacent Mokhasa village of Devada... 6. Ultimately the Board accepted the sketch prepared by the Assistant Director, Survey and Land Records and recorded a finding that patta No. 98 comprising of old Sy. Nos. 396/1 and 2 are co-related to RS Nos. 127 P, 128, 130/P, 446/P, 447 to 451, 459, 560, 5\46/P, 462, 463, 464, 467 to 479 of Cheepurupally village admeasuring approximately 436 acres. The Board also recorded a finding that the northern portion of RS No. 461 which was shown in yellow colour by the Assistant Director do not form part of patta No. 98 and it should be got subdivided and registered in revenue accounts as grazing ground poramboke. Accordingly, joint revision petition filed both by the plaintiff herein and Smt. B.V.S. Narayana Rao was dismissed and the revision petition filed by the other villagers is partly allowed, though there is no revision petition filed by the villagers. They only filed application seeking for permission to implead t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Board to the authorities concerned to record the northern portion of RS No. 461 as grazing ground poramboke. Thereafter the revenue authorities granted revised patta No. 994 only for an extent of 194.96 cents, presumably the land covered by Sy. No. 461. Assailing this order, the plaintiff filed the above suit for the reliefs mentioned supra. 8. We have culled out the facts from the pleadings and orders of the Board of Revenue as well as the orders of High Court in the writ petition. The defendants i.e., the Revenue authorities practically admitted the case of the plaintiff and their only contention is that the judgment of this Court in Writ Petition No. 1065 of 1966 operates as res judicata. It is also their case that the jurisdiction of the Civil Court is specifically barred as per the judgment in Jaya Syamala Rao v. Sri Radhakantha Swami, 1984 (11) ALT 286. Hence, the suit itself is not maintainable. 9. On the basis of the above pleadings, the Trial Court framed the following issues: 1. Whether the plaint schedule land is ryoti land situated in village of Cheepurupalli of Anakapalli Taluk or communal poramboke? 2. Whether the plaintiff or his predecessors-in-int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal with the issues that have arisen for consideration by this Court in this appeal. 15. Issue No. 1: For a considerable time, there was a conflict of opinion with regard to the maintainability of the suit on the proceedings arising out of Section 11 of the Estate Abolition Act with regard to the grant of ryotwari patta. But the controversy was set at rest by the Supreme Court in State of Tamil Nadu v. Rama Linga, AIR1986SC794 . Their Lordships were dealing with the issue whether a civil suit is maintainable in view of the prohibition contained in Section 64(3) of the Tamil Nadu Act, which is in pari materia the same as that of A.P. Act. In the light of Section 64(c) of the Tamil Nadu Act, which provides that any order passed by the Government or any authority under the Act in respect of matters to be determined for the purpose of the Act, shall subject only to any appeal or revision provided by or under the Act, be final. It further provides that no order is liable to be questioned in any Court of law. While the Trial Court dismissed the suit, the appellate Court found that the land was ryoti land, but in view of Section 64(c) of the Tamil Nadu Act, it felt compelled to dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the civil Court, there is no such provision in A.P. Act. Hence, we respectfully agree with the judgment of the Supreme Court and the decision of our own High Court in Kosuru Venkata Krishnaiah's case and hold that a civil suit is maintainable against the order passed by the statutory authority under Section 11 of the Estate Abolition Act. 18. Issue No. 2: It is true that a learned Judge of this Court dismissed the writ petition and upheld the order of the Board of Revenue solely on the ground that the parties have agreed for appointment of an expert to localize the land and for relaying the boundary. As such they cannot contend that the order of the Board suffers from infirmities. 19. We have carefully seen the order of the Board of Revenue as well as the learned Judge. What all the parties agreed was for relaying boundaries between Cheepurupally and Devada villages, in the light of rival contentions of the parties and to localize the land covered by patta No. 98. They have not agreed for anything more than that. Even then the Board of Revenue categorically recorded the finding that patta No. 98 is co-related to RS No. 127/P, 128, 130/P, 446/P, 447 to 451, 459, 560, 5\46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or patta for 436 acres. The variation is very little and the judgment would not come in the way of the civil Court in granting the relief. Even assuming that the judgment of the High Court comes in the way of the civil Court in granting the relief, we have to see whether the same operates as res judicata or not. 20. Their Lordships of the Supreme Court in Mangu Ram and Ors. v. M. Venkataraman and Ors., : (1987)2SCC228 , have held that the order of the High Court dismissing the writ petition questioning the order of the A.P. Estate Abolition Act by the Settlement Officer is legal and binding on the parties to the extent that it could have determined the question before him i.e., the Settlement Officer. The rejection of the writ petition did not and could not clothe the order with jurisdiction which the Legislature had not conferred. That being the case, the decision rendered by the Settlement Officer could not operate as res judicata in a subsequent proceeding under Section 56 in the course of which alone the right of ryotwari patta could be determined. 21. In Burmah Sheel and Storage and Distributing Company of India Limited v. The Labour Appellate Tribunal of India, Madras B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appellate Tribunal. It does not review or re weigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior Tribunal. This offending order or proceedings so to say is put out of the way as one which should not be used to the detriment of any person... Thus, though the High Court held in WP No. 405 of 1953 (a) that the decision of the Appellate Tribunal in the appeal preferred to it against the award in I.D. No. 2 of 1952 was correct, that did not result in the substitution of the finding of the High Court for that of the Appellate Tribunal. The learned Advocate General also referred to the decision of the Privy Council in Toronto Railway Co. v. Corporation of the City of Toronto, 1904 AC 809 (G). The relevant observations were at page 815. Nor did the order of the Appellate Tribunal with its finding merge in the order of the High Court in WP No. 405 of 1953. It was not the High Court that was the Court of competent jurisdiction to decide the issue in an industrial dispute. That jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial... 24. Reliance is also sought to be placed on a decision The Premier Cable Co., Ltd. v. The Government of India and Ors. AIR 2002 SC 2418. Their Lordships of the Supreme Court held that once the writ petition filed against the revisional order is dismissed and the said judgment was not challenged before the Supreme Court, the assessment order passed against the appellant attained finality. 25. This being general proposition, we have no quarrel with the principles laid down in the judgment relied on by the learned Government Pleader. But the decisions referred to by Sri K. V. Satyanarayana, the learned Counsel appearing for the appellants arise under Special Enactment and they are more relevant to the issue involved in this case. From these decisions it is crystal clear that the judgments of the High Court is relatable to the orders passed under the Special enactments and the plea of res judicata must be rested on the orders of the statutory authorities provided under the Special Act. So far as the A.P. judgment is concerned, it has directly arisen under the Estate Abolition Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: ...Cheepurupally village is an estate village of Anakapalli Taluk and Devada is an Inam village of Visakhapatnam Taluk not coming under the purview of the Estates Abolition Act. The revision petitioners are not entitled for any land situated in Devada village. On a perusal of the old pattas filed in Lower Court records, which is the subject-matter in RP No. 41 of 1963 to 44/1963, it is found that the landholders assigned lands situated in Cheepurupally east whereas the Settlement Officer referred to in his orders that they are situated in Cheepurupalli west. This is also an inconsistency in the orders of the Settlement Officer. In the above circumstances, I set aside the orders of the Settlement Officer in all the above cases in granting patta to the respondents to the area extending into Devada village. The village boundary should be retained as it is with reference to block survey map of Devada Village and other plans... 27. Aggrieved of the said order, the plaintiff carried the matter in further revision to the Commissioner. During the pendency of the revision petition, on the suggestion of the parties, one D. Venkata Rao, Assistant Director of Survey, Settlement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Assistant Director was deputed to make local inspection in 1966, by which time several changes might have taken place in the nature of the land and the report cannot form the basis to decide whether the land is ryoti land or Government poramboke land at the time of abolition of the estate. The authorities are expected to look into the old records to decide the nature of land at the time of taking over the estate, but not the present position. A Division Bench of this Court has taken a similar view in M. Ramanamma v. Commissioner of Survey, Settlement and Land Records, Hyderabad and Anr. 2000 (2) ALD 12 (DB) and observed in paragraph No. 29 as under; ... Mr. Sinha was of the opinion that the sites were covered by hills, the nature of soil was rocky, completely unfit for cultivation, there was no signs of cultivation and it was never cultivated at any time. In this regard, it has to be seen that the patta was granted in 1960 and the inspection took place after 15 years. Even regarding the inspection report, we perused the original file, wherein the plans of the lands are available. It is not clear from the plans whether the entire extent of land was uncultivable or only a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ryot, if he is in possession of the land for a period of 12 years for the purpose of the Act whether any grant or lease is there in his favour or not. Sub-section (16) deals with the definition of ryoti land. It defines: ...Ryoti land means cultivable land in an estate other than private land but does not include- (a) beds and bunds of tanks and of supply, drainage, surplus or irrigation channels; (b) threshing-floor, cattle sheds, village-sites and other lands situated in any estate which are set apart for the common use of the villagers; (c) lands granted on service tenure either free of rent or on favourable rates of rent if granted after that date, so long as the service tenure subsists. 32. From the above, it is seen that the lands other than private lands, thrashing floor, cattle shed, village-sites or which are set apart for common use of the villagers have to be excluded from ryoti lands. Section 6 of the Act, deals with the occupancy rights in ryoti land and under Sub-section (4) thereof, when a landholder has reclaimed waste land by his own servants or hired labourers, he may, by contract in writing, prevent any person from acquiring a permanent right of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not impair the substantive right or title to property which may be decided as the ownership of the property.... 36. From these two decisions, it is seen that while there is presumption that all the lands in the Estate are ryoti land, the Estates Abolition Act is intended to regulate the new pattern of relationship between the State and the owner with regard to the terms on which the property is to be held. 37. Without looking into these aspects, it is not known how the Assistant Director reported that, a part of Sy. No. 461 on the northern side is communal poramboke land. At any rate, the Commissioner's order would not disclose any material for accepting the report of the Assistant Director in this regard. We have also perused the report dated 18.4.1966 of the Assistant Director. He simply stated that the yellow colour washed portion i.e., RS No. 161-B, 113, 114, 122 to 126, 127-B and 130/P has to be treated communal land in view of its description as patta or waste land in the recitals marked as Ex.D-12 and Jirayati Banker Para in Ex.A-8. There was no discussion by him on the contents of these; exhibits, but simply he made reference to those documents in his order. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 460, 461/P, 462, 463, 464, 467 to 479 of Cheepurupalli? (2) Whether the lands on the northern portion of Sy. No. 461 are recorded as communal or village poramboke in the village accounts maintained by land holder and whether there is any evidence to support the report of the Assistant Director, Survey and Settlement? (3) The total extent of land in Sy. No. 461 maintaining the same boundaries fixed in Survey operation that was conducted in 1912 between Cheepurupalli and Devada villages. (4) Whether patta No. 98 can be co-related to Sy. No. 461 only and not other Survey Numbers as reported by the Assistant Director? The Trial Court shall send its report within three months from the date of receipt of a copy of this order, if necessary by taking up the trial on day-to-day basis. Except deciding the extent of land covered by patta No. 98 and whether patta No. 98 can be co-related to Sy. No. 461 and to the extent of land for which plaintiffs are entitled for patta, all other issues are held in favour of the plaintiff. Final orders with regard to the extent of land for which the plaintiff is entitled for patta, will be passed after receipt of the report from the Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he determined the rights of the parties and directed the Trial Court to work it out. In that view of the matter, I must hold that the order of remand, though stated to be an order is a decree within the meaning of Section 2(2) of the Code of Civil Procedure...... and the words in accordance with law could not be construed in such a way as to make the substantive order infructuous. I, therefore, find that the words in accordance with law simply meant working out the order in terms of Section 14(1) of the Act.... Hence, the order of remand being in substance, a decree, was appealable as a decree.... 43. This view received the approval of a Bench in the Letters Patent Appeal in this case, in the following terms: ...We fully agree with the view expressed by Chatterjee, J, as to the nature and effect of the remand order. Sri S. Sen Gupta, by his remand order really meant that the suit insofar as it related to the eviction of the defendant was to be dismissed on the defendant's depositing the amount found to be due by the trial Court under Section 14(1) of the Act.... 44. The effect of order of remand was considered by the Supreme Court in United Bank of India, Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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