Cherukuru Muthayya v. Gadde Gopalakrishnayya

1. This appeal and writ petition raise a common question which has still remained unresolved by this court in view of the conflicting decisions rendered by it as to the scope and effect of an order made by an Assistant Settlement Officer, or on appeal by the Estates Abolition Tribunal, under Section 56(1)(c) of the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (hereinafter referred to as the Act) as to who is the lawful ryot in respect of any holding in dispute.

2. To appreciate the main point raised in the appeal and the writ petition by Mr. Suryanarayana Rao appearing for the appellant and writ petitioner, that the jurisdiction of the Civil Court to entertain an action for determination of one's claim to title and possession of a particular land is not taken away by reason of any decision tendered by competent authority under Section 56(1) of the Act, it is necessary to state the relevant facts. The 1st plaintiff is the petitioner in the Writ petition. It may therefore be convenient to refer to the parties in the order they are arrayed in the suit. Since the filing of the suit the 2nd plaintiff, through whom the 1st plaintiff claims, died and her rights and interests devolved upon the petitioner. The suit was laid for a permanent injunction restraining the defendants and their men from interfering with the possession of the plaintiff in the plaint schedule lands. The suit was resisted by the defendants on the ground that the plaintiffs had no title to or possession of the lands in question within the statutory period and therefore the action is barred by time. The more important defence was that the action is barred under Section 56(1) of the Act in respect of item I, as the Assistant Settlement Officer and the appellate authority, the Estates Abolition Tribunal, held that the 1st defendant is the lawful ryot in respect of the holding in question. The other defendants, defendants 2 to 9 are supporting the claim of the 1st defendant. Other defences raised by the 1st defendant were that the gift deed set up by the plaintiff No. 1 is a sham and collusive document brought into existence for the purpose of claiming the property in question and that the 1st plaintiff has no manner of right to be in possession or ask for injunction against them.

3. The District Munsif who tried the suit held that by reason of a family arrangement in 1942 the 2nd plaintiff became entitled to the property, that even otherwise, she perfected her title to the property by adverse possession and that by virtue of the settlement deed executed by her the 1st plaintiff became entitled to the property. But he dismissed the suit on the sole ground that as the 1st defendant obtained a patta consequent on the decision rendered under Sec. 56(1) the decision prevails thus ousting the jurisdiction of the Civil Court. This decree was assailed in appeal preferred by the 1st plaintiff in so far as he is aggrieved by the decision but having regard to the fact that the plaintiff also sought to challenge the order of the Estates Abolition Tribunal confirming the decision of the Assistant Settlement Officer that the 1st defendant is entitled to be recognised as a lawful ryot in respect of the holding in question, the appeal has been brought to this court for trial along with the writ petition.

4. Mr. K. Jagannatha Rao appearing for the 1st defendant contended that when once a decision is rendered by a competent authority under Section 56(1) of the Act that decision is final as between the parties and the civil court gets no jurisdiction to try the same dispute between the parties and there is no alternative to the civil court but to recognise the rights of the parties as decided by the Assistant Settlement Officer or the Estates Abolition Tribunal as the case may be, and therefore, it operates as res judicata completely barring the Civil Court from re-hearing the same dispute.

5. The main question that falls for determination, as has already been referred to, is what is the effect of a decision rendered by the settlement Officer or the Estates Abolition Tribunal under Section 56(1) of the Act. In other words, has the civil court no jurisdiction to enquire into the question of title and possession when once the Settlement Officer or the Tribunal decides a question as to who the lawful ryot is and as a consequence thereof a patta is granted to the person in whose favour the decision was rendered? The two relevant provisions which may have to be noticed in the light of the arguments are Section 56 and 64-A. Section 56(1) reads:

“Where after an estate in notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrears or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer.”

6. Section 56(2) is in the following terms:

“Any person deeming himself aggrieved by any decision of the Settlement Officer under Sub-section (1) may, within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal and its decision shall be final and not be liable to be questioned in any Court of law.”

7. Section 64-A reads:

“64-A(1) The decisions of a Tribunal or Special Tribunal in any proceedings under this Act, or of a Judge of the High Court hearing a case under Section 51(2) on any matter falling within its or his jurisdiction shall be binding on the parties there to and persons claiming under them, in any suit or proceeding in a civil court in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding.

(2) The decision of a Civil Court (not being the court of a District Munsiff or a Court of Small Causes) on any matter falling within its jurisdiction shall be binding on the parties there to and persons claiming under them in any proceeding under this Act before a Tribunal or Special Tribunal or a Judge of the High Court under Section 51(2), in so far as such matter is in issue between the parties or persons aforesaid in such proceeding.”

8. The disputes that fall for decision under Section 56(1) of the Act are of three kinds, (1) whether they relate to any arrears of rent payable by a ryot, (2) the quantum of rent payable as arrears and (3) as to who is entitled to be recognised or declared as the lawful ryot in respect of any holding. The decision under sub-section (1) is appealable to the Estates Abolition Tribunal under sub-sec. (2) of the same Section. A period of two months' limitation is also prescribed subject of course, to the power of the Tribunal in its discretion to condone, the delay and entertain the appeal. A decision rendered by the Tribunal on appeal shall be final and it cannot be questioned, as the Tribunal has a final say in the matter of the three classes of disputes referred to in Section 56(1). We are now only concerned with the dispute raised under Cl. (c) of Section 56(1) and, as already noticed, the decision of the Tribunal went against the plaintiff as it held that the 1st defendant is the lawful ryot. It may be seen that the decision of the Tribunal was placed before the District Munsif and it is having regard to that decision the District Munsif though found other issues in favour of the plaintiffs dismissed the suit on the ground that the civil court has no jurisdiction to grant the relief of injunction and the determination by the Tribunal that the 1st defendant is the lawful ryot disentitle the plaintiffs to seek any relief in the civil court.

9. The main ground of attack of Mr. J.V Suryanarayana Rao is that Cl. (c) of sub-section (1) of Section 56 of the Act does not contemplate at all rendering any decision in case where two parties claim title to and possession of the property. The scope of that clause is limited only to the determination of a question as to who is the lawful ryot and nothing more and therefore the jurisdiction of the civil court under S. 9 of the Civil Procedure Code to determine questions of title, possession and other ancillary matters is not taken away either expressly or impliedly by any of the provisions of the Act and therefore Section 64-A of the Act is no bar to an action in a civil court to maintain one's title, and possession and ask for the relief of injunction, which relief the Settlement officer or the Tribunal cannot possibly grant. It is now necessary to notice the conflicting opinions expressed by several Judges of this Court either sitting single or as members of Division Benches.

10. Subba Rao, C.J as he then was, sitting with Ranganadham Chetty J., had occasion to consider the scope and application of Section 56 of the act in Appanna v. Sriramamurthy . 1958 1 An. W.R 420.. The learned Chief Justice held that in respect of the questions that can be raised under Section 56 of the Act the jurisdiction of the Civil Court is ousted. That decision was rendered in a second appeal directed against the judgment and decree of the subordinate Judge confirming the decree of the District Munsif in a suit filed far recovery of rent said to be due from a tenant. After holding that the matters that arise under clauses (1) and (2) of Section 56 of the Act are entirely within the jurisdiction of the Tribunal, the decrees of the Courts below were set aside and the plaint was directed to be returned.

11. The scope of Section 64-A came to be considered in Narasiah v. The Estates Abolition Tribunal . 1955 A.L.T 372. by a Division Bench of this Court. In that case the learned Judges explained the scope of 54-A(2) of the Act in these terms:

“We are of the view that having regard to the language of Section 64-A(2), the word ‘decision’ covers only matters actually decided and not matters constructively decided by Civil Courts. This construction applies with equal force to the decisions referred to in Section 64-A(1)”.

12. The learned Judges were of the opinion that in respect of a matter decided by a Revenue Court under Section 64-A(1) that decision operates as a bar to lay action in the Civil Court.

13. Another Division Bench of this court consisting of Subbarao C.J, and Manohar Prashad J., (as they then were in Yarlagadda Sivarama Prasad v. Majeti Pota Raju . 1958 A.L.T 50 at 53, 54, and 55. again construed the scope and intendment of Section 64-A(2) of the Act. The learned Judges referred to the distinction between the scope, intendment and applicability of Section 11 C.P.C and section 64-A(2) of the Act and observed:

“Section 64-A(2) marked a departure from the doctrine embodied in Section 11 in so for as it omitted from its scope matter contructiyely in issue. But it does not enlarge the scope of the doctrine, as the learned counsel in substance contends, by making the identity of the cause of action the test of its applicability. Nor does the Sub-section confine its operation to particular proceedings under the Act to the exclusion of others. …………….It is manifest that the respondents who appeared before the Settlement Officer filed objections and disputed the petitioner's claim were made parties to the proceedings. We therefore, hold that the respondents, who were parties to the earlier suit, are parties to the present proceeding within the meaning of Section 64-A(2) of the Act.”

14. It is in that view that they held that the decision rendered by the Revenue Court must be held to be binding on the parties in the subsequent proceedings.

15. The scope of Section 56 of the Act came to be considered vis-a-vis the jurisdiction of the civil Court in Narasimhayya v. Pereyya . 1960 II An. W.R 215 at 217.. That was a case where action was laid in the civil court seeking a declaration that the plaintiff was the lawful ryot. That relief was sought for the reason that the defendant was claiming rights adverse to him and was attempting to alienate the lands thereby denying the claim of the plaintiff that he was the lawful ryot. Bhimasankaram J., who spoke for the Bench observed:—

“The civil court has no jurisdiction to give a declaration as to a right the determination of which is expressly committed to the officer and the tribunal appointed under the Act.”

16. We may also notice some of the decision of the Madras High Court in this connection. In State of Madras v. Karuppaiah Ambalam . 1959 I, M.L.J 185 at 188. Ramachandra Iyer J., (as he then was), considered the scope of Section 56 of the Act and observed:

“The question whether he is entitled to patta in respect of the land can be agitated only before the Settlement Officer, who is the authority to grant patta. Section 3 proviso, read with section 56 would be wide enough to embrace such a dispute although the later section only contemplates a dispute as to who was the lawful owner of the holding.”

17. In another decision rendered by the same learned Judge in Soosai Udayar v. Andiyappan . 1958 1 M.L.J 195. dealing with the scope of Section 56 of the Act it was observed by him:

“It is no doubt true that the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, provides certain rights and the procedure for obtaining the same. Section 56 of the Act dots not expressly bar the jurisdiction of Civil Courts but having regard to the scope and object of the Act, the jurisdiction of Civil Court might be deemed to be impliedly barred in respect of the matters covered by the Section. But then the Tribunals under that section are created for certain specific purposes and they become functus officio after their work is completed. A Civil Court's jurisdiction to entertain a suit in regard to other matters cannot be taken away merely because in deciding such matters the Court has to incidentally decide a matter which is within the jurisdiction of the Tribunals under the Act.”

18. By an emending Act of 1958 Section 56 of the Act was deleted by the Madras Legislature. Therefore, the learned Judge observed that a civil court's jurisdiction to entertain a suit after the Tribunals work is completed and they (Tribunals) became functus officio is not taken away.

19. Rajamannar C.J in Adakalathammal v. Chinnayan Panipundar . 1959 I M.L.J 314. speaking for the Division Bench, observed, that there was no conflict between the jurisdiction of the civil courts and that of the Settlement Officer and that the civil court has jurisdiction to entertain a suit for possession when a party has been dispossed, as such a dispute will not be a dispute as to rights under Section 56(1)(c) of the Act. In that view, the learned Chief Justice held that there is nothing in any of the provisions of the Act which prevents a civil court from entertaining a suit for possession by a person who has been in possession and who has been dispossessed, and that Cl. (c) of sub-section (1) of Section 56 of the Act should be read along with the other provisions of the Act and the rights and privileges which can be recognised and conferred by or under the Act. The learned Chief Justice also observed that with the repeal of Section 56 of the Act by the amending Act, XXXIV of 1958 the controversy as to whether a civil court has jurisdiction or the Tribunal has jurisdiction has been set at naught. The Madras High Court therefore was of the view that the jurisdiction of the civil court is barred in respect of matters covered by Section 56(1).

20. Decisions relied upon by Mr. J. V, Suryanarayana Rao as supporting his stand may now be noticed. Kumarayya J., as he then was sitting with Madhava Reddy J., in Vechalpu Ramulu v. Appaianaidu . 1969 II A.L.T 303. was dealing with a case where the reliefs of possession and recovery of amounts due for use and occupation of the land were asked for in a Civil Court. The learned Judges held that though the relief with regard to the declaration of occupancy rights may stand on a different footing, but inasmuch as the essential reliefs could be granted without any declaration of the kind, the suit for the reliefs other than declaration was maintainable, and that ignoring the relief of declaration of occupancy rights, the relief of possession and recovery of amounts court be granted by the Civil Court. That conclusion was reached on the ground that civil court's jurisdiction is not excluded when special forms could not grant relief prayed for in a civil suit and the plaintiff cannot be required to split up his cause of action and seek redress partly in a civil court and partly in a special Tribunal.

21. Krishna Rao and Madhava Reddy JJ., in Peda Govindayya v. Subba Rao . 1969 II A.L.T 336 at 345. while considering the question of jurisdiction of the civil court in a case arising under the Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956 observed:

“On a scrutiny of the provisions of the Inams Abolition Act, it is clear to our mind that the enquiries contemplated and the remedies provided for the aggrieved party are not as efficacious and adequate as those contemplated before the ordinary courts of the land. In such a case the bar of jurisdiction of the civil courts cannot be readily implied………………….. If the object of the suit is not directly to set aside the order of the revenue authorities it is always open to a civil court to consider all questions in a suit praying for reliefs which cannot be granted by the Revenue authorities……… The order of the revenue authorities granting patta in favour of the defendants cannot, therefore, be regarded as conclusive of the defendants' title to the property”.

22. In other words, the learned Judges held that the mere grant of a patta is not sufficient to hold that a person has title to the property and an action claiming title to the property can always be maintained in a civil court notwithstanding the grant of a patta by the special tribunal.

23. Kumarayya J., as he then was, and Vaidya J., in an unreported decision in L.P.A No. 37/67 were again dealing with the question of civil court's jurisdiction in a case arising under the Inams Abolition Act. The learned Judges ultimately held that patta could not be regarded as final as it was a mere bill of revenue and did not confer any title, the source of title being the assignment, and the patta based on such an assignment at best is evidence of title. In that view, the learned Judges said that the grant of patta in favour of a party does not invest him with the rights of ownership and any decision by the Tribunal under the provisions of the Inams Abolition Act is not conclusive as to one's title so as to bind the civil court or bar its jurisdiction.

24. Parthasarathi J., sitting with Sharfuddin Ahmed J., in Appeal No. 352/64 discussed at length some the earlier judgments of this court and the effect of a decision rendered under Section 56(1)(c) of the Act. Prthasarathi J., after referring to the object and intendment of the legislation observed at page 25 of the Judgment.

“To express this idea a little more elaborately, the position as on the date of the abolition of an estate was, that the ryot of a holding, on condition of payment of rent, possessed and was entitled to a composite title. This latter was inclusive of title the to property under common law i.e in the normal sense, arising by reason of long possession and enjoyment. Secondly, the right to hold the property vis-a-vis the State on the foot of a particular tenure. It is well-known that the expression ‘title’ in legal parlance connotes many facets or aspects. It consists of several types of rights and in the case of the ryot holding property in an estate, the two broad species of property merged in his title were, firstly the common aw right of ownership to immoveable property and secondly the right to incidents of a particular tenure and to hold the property as against the State on a defined basis. So far as the substantive part of the title is concerned, i.e, the common law right of ownership, the Estates Abolition Act did not and could not operate to his detriment in any manner. The common law right of ownership remained unaffected and it is only a right arising out of a particular tenure that was the subject-matter of the legislation.”

25. The learned Judge distinguished the decision of Subbarao C.J, (as he then was) in Appanna v. Sriramamurthy and opined that the issue of patta under Section 11 of the Act by the Settlement Officer is an integral part only of the conversion of the tenure and does not impair the substantive right of or title to the property which may be described as an owership of the property. It is in that view the learned Judges held that the grant of a patta cannot extinguish the rights of a party so as to lay action in a Civil Court for declaration of his title and for other reliefs. It does not appear that the decision of another Division Bench of this Court in Venkaiah v. Subbarama Sastry . 1959 II An. W.R 539. was brought to the notice of the learned Judges in A.S 352/64, where Chandra Reddy, C.J observed that the effect of the notification under Section 3(b) and (c) of the Act is that when once the notification envisaged in Cl. (a) of Sec. 3 is issue, the totality of interests in that estate vest in the Government and no one has any right except those which are specifically recognised by the provisions of the Act and there fore Section 20 of the Act cannot come to the rescue of either an erstwhile landholder or a ryot to claim such rights as existed prior to the notification. The learned Judge, Parthasarathi J., also referred to two decisions of single Judges of the Madres High Court, one of Alagiri swamy J., in Loganathan v. P. Naiker . 1969 Mad. 14. and the other Ramamurthy J., in Sanjeeve Naicker v. Shanmuga udayar . 1965 II M.L.J 204. where the view, which accords with their view was expressed. It is unfortunate that two other decisions of Division Benches of this court expressing totally different view were not brought to the notice of the learned Judges in Appeal No. 352/64.

26. A Division Bench of this court consisting of Jaganmohan Reddy, C.J, as he then was, and Venkatesam J., considered the scope of Sections 11 and 56 of the Act in S.A No. 840/62, which was referred to them having regard to the important questions of law that were raised in that appeal. The learned Judges expressed the view opposite to, the one expressed by Parthasarathi and Sharfuddin Ahmed JJ., in these terms:

“The Government having granted a patta to the plaintiffs, they stepped into the shoes of the Government, and are entitled to evict the defendants, who are in unlawful occupation. Whatever rights the 2nd defendant might have had previously, it is not open to him, much less the 1st defendant, to put forward any claim or right against the plaintiffs after the grant of patta to them.”

27. In that view the learned Judges negatived the contention that the Civil Court's Jurisdiction is barred when once a patta is granted in favour of a party.

28. The scope of Section 56(1) of the Act was again considered and explained by Venkatesam and A.D.V Reddy, JJ., in Appeal No. 358 of 1965 in these terms:—

“The above provision has taken out the jurisdiction of the Civil Court with regard to the disputes mentioned therein. The suit in the present case is for possession of items 8 to 10 of the plaint B schedule lands also along with mesne profits. But as stated already, the defendant's possession cannot be disturbed until their right to a patta is adjudicated on by the Settlement Officer, a Tribunal contemplated under the Act. This dispute is not a question relating to who has the lawful title to the land as title vested only in the Government but as to who is lawfully entitled to a patta. The question relating to the granting of patta as between the landlord and the tenant, also is a question to be decided by the Settlement Officer, under Sections 11 and 12 of the Act. It is not open to the plaintiff to circumvent the Act and go to a Civil Court and ask for possession when the Civil Court cannot grant possession unless it goes into the question as to who is entitled to a patta and this is exclusively within the jurisdiction of the Settlement Officer under the Act.”

29. In respect of the item referred to the suit was dismissed. I believe there are some more unreported decisions which have not been brought to the notice of the learned Judges.

30. In view of the conflicting opinions expressed by several Division Benches of this court and the resulting confusion the decisions have created in the minds of the Advocates and the litigant public and those who have to apply the decisions of the Division Benches, I consider it is a fit case which should in the first instance go before a Division Bench, so that it may be ultimately referred to a Full Bench. Place the papers before the Hon'ble the Chief Justice for orders as to posting.

31. The Transfer Appeal and writ petition coming on for hearing in purusance of the above said order dated 8-12-1970 on Monday the 18th, Tuesday the 19th Wednesday the 20th days of September 1972 and upon hearing the arguments of Mr. J.V Suryanarayana for Mr. D. Venkatappayya Sastry. Advocate for the appellant in Tr. A. No. 59 of 1968 and the petitioner in W.P No. 2057 of 1965 and of K. Jagannadha Rao, B. Anjaneyulu and K.S Prasad, Advocates for the 1st respondent in both the appeal and petition and of the 4th Government Pleader on behalf of the respondents Nos. 2 and 3 in the Writ Petition No. 2057 of 1965 and notice to respondents 4 and 5 in Tr. A. No. 59 of 1968 having been dispensed with and they having remained absent and set exparte in the lower court and respondent Nos. 2, 3 and 6 to 9 in Tr. A. No. 59 of 1968 not appearing in person or by advocate and having stood over for consideration till this day, the court delivered the following:

JUDGMENT

(Judgment of the Court delivered by the Hon'ble the Chief Justice)

32. This appeal is from the Judgment of the principal District Munsif originally filed with the Subordinate Judge, Vijayawada but transferred to the High Court to be heard along with W.P No. 2057 of 1965.

33. One Guruvaiah had five sons and four daughters. The 2nd plaintiff is the eldest daughter. One of his sons Narasaiah died issueless. By 1942 there were four shareholders representing the branches of four sons. The contention was that the 1st plaintiff's father was an illatom son-in-law of Guruvaiah. As such he was also given one share in the partition that took place in 1942. The 2nd plaintiff, who had managed the estate after the death of Guruvaiah and who had lost her husband when she was just a child, was also given half share in the partition.

34. In the partition two suit items fell to the share of the 2nd plaintiff. She executed a registered settlement deed on 19-9-1950 in respect of the first item and executed a gift deed in regard to item 2 on 20-3-1951 in favour of the 1st plaintiff and put him in possession. The 2nd plaintiff had reserved life estate in first item. She died during the pendency of the suit. On a contention that the defendants are trying to interfere with the possession of the plaintiffs, the suit for injunction was laid.

35. The defence set up by the defendants was that in the partition properties were divided into four, shares only among the four sods. No share was given to the 1st plaintiff or even to the 2nd plaintiff. They contended that they are in possession of the suit properties and that the settlement deed and gift deed are sham and bogus. The plaintiffs have no title. Not are they in possession. The further alleged that since the 1st defendant filed an application under Section 56(1)(c) of the Estates Abolition Act, the Civil Court has no jurisdiction to try the suit.

36. The trial Court framed in all ten issues. The parties adduced oral evidence. They marked several documents. On an appreciation of this material, the principal District Munsif by his judgment dated 31-3-1965 held that the suit property had fallen to the share of the 2nd plaintiff in a family arrangement effected in 1942. She also had perfected her title over the suit property by adverse possession. It was also held that the settlement deed Exhibit A-3 and gift deed Exhibit A-4 were executed by the 2nd plaintiff in favour of the 1st plaintiff. It was found that there was no difference in boundaries given in Exhibit A-3 and those stated in the plaint regarding the first item of the suit property. The trial court also held that the plaintiffs were in possession and enjoyment of the suit property since the time of partition and family settlement in 1942. The 1st plaintiff has acquired title to the suit properties.

37. Inspite of all these findings, the trial court dismissed the suit in regard to item No. 1 on the ground that the dispute between the parties in effect is as to who the lawful ryot is and although the suit is for injunction, it is not a claim beyond the purview of Section 56 of the Act. So the jurisdiction of the Civil Court is barred in view of the proceedings before the Settlement Officer. Since the proceedings under Section 56 related only to item No. 1, the suit was dismissed to that extent. In regard to item No. 2, however, it was decreed. No appeal is preferred by the defendants regarding item No. 2. It has therefore become final. The plaintiffs have preferred the appeal in regard to item 1 only.

38. At this stage it is convenient to mention that the 1st defendant filed an application under Section 56(1)(c) of the Estates Abolition Act, S.R 66(1) 48 of 1960. The Assistant Settlement Officer dismissed the application on 21-4-1960 on the ground that the dispute can be got settled by a Civil Court.

39. The 1st defendant preferred appeal T.A.S No. 22 of 1960 to the Estates Abolition Tribunal, Krishna. The Tribunal set aside the order of the Assistant Settlement Officer by its order dated 30-7-1961 and remitted the case to the Assistant Settlement Officer for fresh disposals.

40. After the remand, the Assistant Settlement Officer, Ankapalli allowed the application by his order dated 2-6-1963. The Assistant Settlement Officer found that the Settlement deed and the gift deed have no bearing on the suit properties. The petitioner (1st defendant) therefore was held to be the owner of item I and the Assistant Settlement Officer said “he will therefore be granted a ryotwari Patta.”

41. The Estates Abolition Tribunal on an appeal by the plaintiff by its orders dated 2-6-1963 found that the suit land is in possession of respondent-plaintiff in pursuance of civil court order. Till then it was in the occupation of petitioner, 1st defendant. It was farther found that the two lands are covered by O.S 394/2 and O.S 394/31 Agreeing with the view taken by the Assistant Settlement Officer, the Tribunal rejected the appeal. It is to challenge this concurrent view that W.P No. 2057 of 1965 has been filed.

42. When the appeal and the writ petition came on for hearing before our learned brother Obul Reddi J., he noticed conflict of decisions on the points raised. He therefore thought it proper to refer them to a larger Bench. The Division Bench, agreeing with the learned single Judge has referred the cases to the Full Bench and that is how the matter have come before us.

43. The first contention to which we have to address ourselves is whether an application under Section 56(1)(c) can lie as was filed in the present case for getting a decision as to who the lawful ryot is, irrespective of the context in which clause (c) of that section appears in order to appreciate the contention that section 56 is a transitory provision and applies only to cases where immediately after the abolition of an estate dispute arises between the landholder and his ryots regarding the payment of any rent, it is necessary to read section 56.

“(1) Where after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer.

(2) Any person deeming himself aggrieved by any decision of the Settlement Officer linger sub-section (1) may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow appeal to the Tribunal and its decision shall be final and not be liable to be questioned in any Court of law.”

44. Before we analyse the section, it is necessary to bear in mind its contextual relationship with other provisions of the Chapter in which section appears. The section appears in the Chapter headed ‘Miscellaneous’. Section 55, which is the first section of that Chapter relates to collection of arrears of rent which accrued before the notified date.

45. The section enjoins that after the notified date the landholder shall not be entitled to collect any rent which accrued due to him from any ryot before and is outstanding on that date. It is the manager who is appointed under Sec. 6 who shall be entitled to collect all such rent together with interest and Costs relating thereto. These amounts were to be collected as if they were arrears of land revenue. These amounts when collected shall be paid to the landholder after making deductions referred to in that section. All these amounts are treated as first charge upon the land in respect of which the amounts are payable.

46. It is then that section 56 appears and which relates to ‘decision’ of certain disputes arising after an estate is notified.

47. Section 57 then declares that peshkash, Jodi or quit rent in respect of an estate shall cease to accrue with effect from the end of the Fasli year immediately preceding the notified date.

48. Section 58 enjoins that a landholder of an inam village which is not an inam estate from the notified date shall be liable to pay annually to the Government such Jodi, Kattubadi, or other amount as he was liable to pay to the landholder before the notified date.

49. Section 58(a) directs the stay of execution proceedings and setting aside of certain court sales and foreclosures.

50. Then comes the somewhat relevant section 59, the marginal note of which reads. “Transitional provision in regard to other liabilities of landholder, etc”. It states that no claim or liability enforceable against the principal or any other landholder or other person whose rights stand transferred to the Government in pursuance of Section 3(b) shall after the notified date be enforceable against the interest he had in the estate. They shall be enforceable on the other hand only against the interim payments, the compensation or other sums payable under the Act and against his other property. It further directs the courts not to proceeding, if pending, for the enforcement of any such claim or liability.

51. Section 60 then makes provision for absorbing the staff of the abolished estates.

52. Section 61 then states that educational or charitable institutions maintained during the prescribed period by the landholder may be maintained by the Government if they think fit.

53. Section 63 empowers the Settlement Officer to decide the question relating to forests.

54. Section 64 then enjoins that where a person is entitled to the owernship or to the possession or occupation of any land or building before the notified date but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived of his right to the occupation and has not lost his right on the day of the notification is entitled to recover possession of such property as he shall be deemed to be the owner or in possession or in occupation of such property.

55. Section 64-A relates to res judicata, Section 64-B relates to the saving of limitation and section 65 provides immunity to the officers and bars jurisdiction of courts in certain cases.

56. Sections 66, 67 and 68 relate to repeals, power to make rules and power to remove difficulties.

57. Two things come to the surface on a survey of this chapter. Firstly apt to the heading various unconnected and miscellaneous provisions have been put in this chapter. Secondly there is a fasciculus of sections 55 to 59 both inclusive which make provision for settling the disputes between the landholder and the ryots relating to the claims of the landholder against the ryots pending on the date of notification or arising thereafter. All these disputes relate to the payment of rent or arrears due. Since after the abolition of the estate it is taken over by the Government, the Legislature apparently did not want the landholders, whoso right, title and interest in their totality were abolished and taken over by the Government to carry on disputes or litigation against their erstwhile ryots. That is why section 55 prohibits the landholder from collecting any rent due to him from any ryot. The manager on the other hand is declared to be entitled to collect such rents and make them over to the landholder after permissible deductions. Section 56 has to be read therefore in the context of section 55. It empowers the Settlement Officer to decide any of the disputes mentioned in the Section Clauses (a) and (b) relates to arrears of rent due from a ryot to the landholder. And clause (c) relates to the dispute as to who the lawful ryot in respect of any holding is. Clause (c) cannot be read in isolation and out of context with the other two clauses of Section 56(1) Clause, (c) if so read in the context of the two other clauses and keeping in view section 55 of the Act can leave no one in doubt that the dispute under Clause (c) would be required to be decided only in regard to the disputes covered by clauses (a) and (b). In other words, whenever a dispute arises as to from which ryot the arrears of rent are due to the landholder in regard to a particular holding, it is only then that the Settlement officer would decide the question as to who the lawful ryot is with a view to fasten the liability of arrears of rent due. Clause (c) is not an independent provision nor it is a substantive provision whose scope and operation travel beyond the purpose of Sections 55 and 56 of the Act. The Section does not postulate any independent enquiry and decision on questions covered by clause (c) without having any reference to any other provision of the Act. The place where Section 56 occurs, its contextual relationship with Section 55 and the purpose of Section 56 read as a whole make it plain that the purpose of an enquiry into a question covered by clause (c) is intimately and integrally connected with sections 55 and 56 only.

58. Look at it from another point of view. If the purposes of deciding as who the lawful ryot is not meant for fastening the liability of rent due, then there must be some other and independent purpose in empowering the Settlement officer to decide the dispute under clause (c) of Section 56(1).

59. Now there are only two sections which empower the Settlement Officer to make necessary enquiries and grant patta to the persons entitled thereto. Section 15 is one Section which empower the Settlement Officer to examine the nature and history of in respect of which the landholder claims a ryotwari patta under Section 12, 13 or 14 and decide in respect of which lands the claims should be allowed. For determining the said questions, it is evident that it is not necessary to decide any question as to who the lawful ryot is under Section 56(1)(c). Section 15 read with Sections 12 to 14 provide a complete code in themselves for the purpose of grant of patta to the landholder. Section 15 makes the decision of the Tribunal final and it is not liable to be quashed in any court of law. Section 56(1)(c) therefore has no relevance whatever with section 15 of the Act.

60. The next Section is section 11. That Section declares lands in which a ryot is entitled to ryotwari patta. The section does not indicate any procedure for the grant of such patta. Nor it invites any application for that purpose. It is well known that inquiry under Section 11 can commence suo motu or on an application of a ryot. Section 11 impliedly empowers the Settlement Officer to decide firstly that the land in question is a ryoti land and secondly that a particular ryot is entitled to the ryotwari patta of such a land. The question whether a particular land is a ryoti land or not is a jurisdictional question, decision upon which depends the jurisdiction of the Settlement officer to grant patta. Any determination of such preliminary question is not conclusive. It is always open to judicial review and can be questioned in a civil suit. Sec. 11, unlike Sec. 15, does not make an order under that section final and does not prohibit that being questioned in a Court of law.

61. The question then is can Section 56(1)(c) be connected with section 11? We do not think there is any possibility or justification for connecting that section with section 11. If the legislature wanted to make the decision under Section 11 final and not open to any question in court of law, nothing could have been easier than to say so in section 11 itself as is said in Sec. 15. The fact that the Legislature did not want to clothe orders under Section 11 with finality is patent. If the scheme and purpose of the Act are kept in view, it would be plain that while the legislature wanted every dispute between the State and the Landholder and between the landholder and his ryots to be finally decided only under the Act, it did not think it necessary or even desirable to allow the disputes of title between the rival ryots to be finally decided under the Act except for the purpose of Section 15 as mentioned above. Thus if the purpose and scheme of Section 11 is borne in mind, it will not be difficult to reach the conclusion that Section 56(1)(c) has no relation whatsoever with the determination of any question under Section 11. They are independent and mutually exclusive provisions. They do not supplement each other. Their scope of operation and their effect are entirely different. We are therefore satisfied, that Section 56(1)(c) can have no relation to section 11 but it is closely related to other clauses of Section 56(1) read with section 55 of the Act.

62. With due respect to the learned Judge who said in Chigurupati Venkatasubbiah v. Ravi Punnayya that dispute envisaged in Section 56 is in relation to grant of patta under Section 11 and that the machinery for the grant of patta is set up in Section 56, we find it difficult to agree with him.

63. In K. Madurai v. M. Madurar Alagiriswami J., held that the power of the Settlement Officer under Section 56 to decide who the lawful ryot in respect of any holding is, is only for the purpose of the other two clauses, that is, for the purpose of realization of the arears of rent and not for the purpose of issuing patta.

64. In Appanna v. Sriramamurthy the second appeal had arisen out of a suit filed by the landholder for recovery of rent alleged to be due from the tenant. The facts reveal that the rent was due for the year 1948-1949 as well as for the years 1949-1950 and 1950-1951. The defence was that since he is a ryot, the plaintiff-landholder had no right to collect rent from him and that the District Munsif had no jurisdiction to entertain the suit. The bench held that Section 56 confers on the Settlement Officer jurisdiction to decide whether a person is a lawful ryot or not and the two other disputes referred to in that section. It was held that when a statute confers a power on any person for public purposes, if the mode of redressing the injury is pointed out, the jurisdiction of the ordinary courts is ousted. And where a special tribunal is appointed to determine a question as to rights which are the creation of that Act, then the Tribunal's Jurisdiction to determine those questions is exclusive.

65. In the course of the judgment, their Lordships at page 48 considered the argument that the disputes raised do not come under Section 56 of the Act. The argument was repelled. While repelling that contention, their Lordships referred to an observation made by Rajagopala Ayyangar, J., in Arunachalam Chettiar v. Narayana Chettiar. The observation reads:

“The entire argument of the Tribunal is rested on the collection of the words of dispute arising after an estate is notified. In the first place, Sec. 56 occurs in the chapter headed ‘Miscellaneous’. It position is just after Section 55, which deals with collection of arrears of rent by the land holder after the notified date Sub-sections (a) and (b) of Section 55(1) refer to disputes which might arise in connection with the liability of the ryot to pay rent or its quantum. A reference to Section 55 would show that the liability for the rent or its quantum may be in respect of a period anterior to the notification. If Section 56 were to be the machinery for deciding the disputes in relation to the rent payable for faslis 1356 and 1357, it would follow that the disputes referred to in the opening words of Section 56(1) would not exclude disputes whose origin was earlier than the notified date but which have continued since then. If, therefore a dispute inrelation to matters mentioned in Section 56(1)(a) and (b) would take in disputes originating earlier than the notified date but continuing even afterwards, the nature of the dispute referred to in sub-clause (c) of Section 56(1) would not be different. In my opinion the proper construction of that Section is to hold that all disputes which are factually present after the notified date come within the jurisdiction of the Settlement Officer within section 56(1), Disputes which are excluded are only those in regard to which there have been binding adjudications by the ordinary courts before that date or matters pending before other authorities before the notified date. In regard to all others, the dispute ‘arises’ after the notified date within the meaning of Section 56(1) if notwithstanding its having originated at an earlier date it continues thereafter, for the dispute is a difference which exists until it is settled and it is the existence of the dispute that is referred to in the Section and not its origin. In this view the order of the Abolition Tribunal, Madurai, in R.A No. 373 of 1954 is set-aside as erroneous.”

66. The learned Judges entirely agreed with the aforesaid observation.

67. The abovesaid observation would support the view which we have taken about the scope and operation of Section 56 of the Act.

68. In Adakalathammal v. Chinnayan Panipundar (5) (1959 I, M.L.J 314) Rajamannar C.J, said that clause (c) sub-section (1) of Section 56 of the Act should be read along with the other provisions of the Act and the rights and privileges conferred by or under the Act.

69. Since the functions of Section 56 was of a transitory character and if the Section has outlived its utility in reference to certain estates abolished, then that Section cannot be pressed into service at all. That is why the Madras Legislature repealed Section 56 by the amending Act XXXIV of 1958.

70. We are unable to agree with the view expressed by Ramaswami J., in Panchi Ammal v. Anguswami Gramani (6) (71 Law Weekly 635). That was a case in which the plaintiff based her title on the patta granted by the Zamindar of a ryoti land. The defendant also claimed that the patta was granted by the Zamindar to him and others. It was held that under Section 56(1)(c) and Section 56(2) of the Act, the civil court is impliedly barred from trying this question and the proper forum is the settlement officer under section 56 of the Act. We have observed that to such a case section 56 does not apply.

71. For the aforesaid reasons, we are satisfied, that Section 56(1)(c) is not an independent or substantive provision unconnected with section 56(1) or section 55 of the Act. No enquiry into the questions covered by clause (c) therefore can be made if its purpose is not related to section 56(1) and Section 55 of the Act. Since in this case, the application was not made for the purpose of Section 55 or section 56 but was made for purposes other than these, the application was misconceived and ought not to have been entertained by the Settlement Officer. His order therefore is made without jurisdiction and as a result the appellate order of the Tribunal would also be an order made without jurisdiction. These orders are of no legal effect.

72. We then come to the second contention that unless and until a patta is granted under the Estates Abolition Act, no suit for possession or injunction by a person who claims dispossession or interference in his possession can lie. In so far as this argument stems from Section 56(1)(c) of the Act, we have already dealt with the scope and extent of section 56 and since we held that the order made under Section 56(1)(c) is ineffective, that order would not come in the way of instituting a civil suit for injunction. The other contention in this behalf was that under section 3 of the Estates Abolition Act the entire estate stands transferred to the Government and vest in them free of all encumbrances. The Government becomes the absolute owner of all the lands in the estate. Unless the Government grants patta and confers title on any person under the Act, he cannot institute a suit for injunction in order to protect his possession.

73. Now the aim and object of the Estates Abolition Act as seen from the preamble is threefold. Firstly it provides for the repeal of the permanent settlement. Secondly as a necessary result of the repeal, the rights of landholders in permanently settled and certain other estates are acquired by the Government. And thirdly to introduce ryotwari settlement in the estates thus abolished and taken over by the State of Andhra Pradesh.

74. The central section which seeks to achieve the first two objects is section 3. It speaks out the consequences of notification of estate. Save as otherwise expressly provided in the Act on and from the notified date, the following consequences would flow.

75. Firstly the entire estate included in the assets of the Zamindari estate at the permanent settlement and all communal and poramboke lands, other non-ryoti lands, waste, pasture and lanka lands, forests, mines etc., shall stand transferred to the Government and vest in them free of all encumbrances.

76. It is pertinent to note that there is no mention of ryoti lands in the list of properties which stand transferred to and vent in the Government. The expression “Other non-ryoti lands” which stand transferred to the Government and non-mention of ryoti lands in clause (b) of Section 3 is not without significance.

77. Secondly the effect of Section 3 is that all rights and interests created in or over the estate by the principal or any other landholder before the notified date as against the Government cease and determine. The necessary implication of clause (c) is that rights and interests thus created may operate against the principal or landholder although they ‘cease and determine as against’ the Government.

78. Thirdly the Government is empowered to take possession of the estate and (b) all accounts etc., relating to the estate which the Government may require for the administration thereof.

79. The proviso to that clause however inhibits the Government from taking possession from any person if they consider that he is prima facie entitled to patta. Such person may be a ryot or he may be a landholder who is entitled to patta. In other words, a ryot who is entitled to patta under Section 11 of a ryotiland or a landholder, who is entitled to such patta of a private land under section 15 of the Act shall not be dispossessed. What is plain is that while clause (b) excludes ryoti lands from being transferred to and vest in the Government, Clause (d) prohibits the Government from dispossessing ryots who prima facie are entitled to a patta of a ryoti land.

80. Fourthly, clause (e) declares that the principal or the landholder, whose rights stand transferred under clause (b) or cease and determined under clause (c) are entitled only to compensation from the Government under the Act. It is relevant to note that the right, title or interest of a ryot in a ryoti land since not transferred to the Government or determined as against the Government, clause (e) does not provide for any compensation.

81. Fifthly the relationship of landholder and ryot as between them stand extinguished under clause (f). What the underlined words mean is that while the relationship of a ryot as such with his landholder is extinguished, his relationship with the Government is established the moment ryoti lands in the estate are converted into ryotwari settlement. That is made clear in clause (g).

82. Finally clause (g) declares that ryots in the estate and persons holding under them shall as against the Government be entitled only to such rights and privileges as are recognised or conferred on them by or under the Act. One must necessarily note the words “recognised or conferred,” used in the said clause. What follows is that in regard to ryoti lands in an estate, no right, title or interest of a ryot stands transferred and vest in the Government. The relationship of the ryot is extinguished. The relationship of the ryot as a pattadar under section 11 is established with the Government. The person i.e, the ryot who prima facie is entitled to patta cannot be dispossessed and since no right of his has been acquired by the Government he is not paid any compensation. He gets patta in pursuance of the realisation of the third object of the Act, that is to say, introduction of a ryotwari settlement. The Act does not allow the Government to acquire the ryoti lands and then allow it to grant the same to or assign the lands thus acquited to any one the Government chooses. On the other hand the ryoti lands are not acquired nor any compensation is paid. The pre-existing right of ryot is recognised by the Act and that is why he is neither dispossessed nor left to the mercy of the Government but is declared entitled to a patta in recognition of his right in the ryoti lands and is conferred with a patta so as to establish the relationship with the Government in a ryotwari settlement.

83. What becomes thus plain is that even the property mentioned in clause (b) stands merely transferred to the Government and vest in them. No qualifying words such as “absolute transfer” or “absolute vesting” are used in the section which sometimes are found used in some of the judgments. The definition of the word ‘estate’ given in section 2(3) of the Act is relevant. It is that estate which stands transferred to and vest in the Government. It is the right, title and interest of the landholder which stand transferred and vest in the Government. All rights and interest created by the landholders, in or ever the estate cease and determine. The landholders, whose rights have thus been transferred and determined, are paid compensation and their relationship with the ryots is extinguished. Thus a triangular relationship is declared in the process of abolition of an estate and its conversion into a ryotwari settlement. What must follow is that in so far as the ryots are concerned, their rights in the ryoti land have been recognised and are not extinguished and their relationship with the Government is established under the Act. It would not therefor be correct to contend that their old rights have been extinguished and when patta is granted new rights are conferred on them. Any such contention would not only be inconsistent with the express aims and objects of the Act but would be quite contrary to Section 3 and other provisions of the Act. It would be contrary to the scheme which is spelled out in Section 3 of the Act as discussed above.

84. In support of their contention reliance was placed by the respondents on some decisions of this Court. We will deal first with the latest case which takes, if we may say so, an extreme view and supports the contention advanced before us.

85. In Someswaraswamy Varu v. Srirajitam the plaintiffs, a daramilla inamdar, leased out the lands to a particular person in the year 1900. Subsequently these lands continued to be in the possession of the original lessees successors in interest and their cultivating tenants who were defendants in the suit. After the estate in which the lands were situated was abolished and taken over by the Government, the plaintiff filed the suit for possession. The defendants' contention was that they have occupancy rights and are entitled to pattas and therefore the jurisdiction of the court is barred by Section 56 of the Act. The learned Judges held that after the notified date the plaintiff ceased to have title. As per section 3 the tenants have a right to continue in possession until their claims are adjudicated upon by the Settlement Officer. The Bench further observed that Section 56 has taken out the jurisdiction of the civil court with regard to the disputes mentioned therein. The dispute was not a question relating to who has the law full title to the land as title vested only in the Government, but as to who is lawfully entitled to a patta. The question relating to the granting of patta as between the landlord and the tenant also is a question to be decided by the Settlement Officer under Sections 11 and 12 of the Act. The Bench consequently held. Until that is determined (question of patta) and the plaintiff succeed in getting the patta in their favour, they have no right to recover possession from the defendants, who are now in possession. Only when their right is so declared and possession is denied to them, they can resort to a civil court. Until then their right for possession does not ripen. It is premature for them to file suit for recovery of possession now. Their main relief for possession depends entirely on their right to the issue of a patta. Therefore they must first approach the settlement officer for a patta and having obtained it, then sue for possession in a civil court.”

86. With great respect we find ourselves unable to agree with some of the reasonings of the learned judges. Once it is found that was a dispute between a landholder and his tenant, we fail to see how Section 56(1)(c) was applicable. Even otherwise the scope of section 56 as laid down by us above does not prohibit a suit for possession by a landlord against a tenant provided no other provision comes in the way of such. In so far as therefore the reasoning relating to Section 56, we find it difficult to agree with the same.

87. Section 11 was also not applicable because that was not a dispute between the two ryots claiming patta of a ryotwari land. The inamdar sued on the basis of his title while the tenant claimed occupancy rights and his right to get patta under section 11 of the Act.

88. Under what provision of the Act that is to say whether Section 12, 13, or 14 of the Act, the inamdar had claimed tile patta treating it as his private land is not clear. What is, however, plain is that under Section 3, the estate stood transferred and vested in the Government. The inamdar, if he had any right to get patta under the Act, could have got the patta only under Section 15 of the Act.

89. The real question therefore in that case was whether a landholderd inamdar without acquiring a patta under Section 15 of the Act can institute a suit in the presence of section 15, for possession against his tenant who claims occupancy rights and his right to continue in possession and grant of patta under Section 11 of the Act.

90. We do not propose to consider the correctness or otherwise of the said decision on that basis as we are not concerned in the present case with any such question. The present dispute is not between the Landholder and his ryot but is a dispute between two rivai ryots claiming title and patta to the land in question. The said decision therefore is not applicable to the facts of the present case.

91. It is relevant to notice that support for the view taken is sought from Appanna v. Sriramamurtky : (1958) A.L.T 491 : 1958-I An W.R 420. We have already referred to this case. We have noticed that case squarely falls within the purview of Section 56(1) as the suit was for rent instituted by the landholder against his ryots. In view of Sections 55 and 56, the Court rightly held that the Civil Court had no jurisdiction to entertain the Sit. This decision cannot be said to be an authority for the view that clause (c) of Section 56(1) applies to cases independent of Sections 55 and 56. On the other hand, it supports the view which we have taken of Section 56(1)(c) of the Act.

92. The next case to be considered is Manikyumma v. State of Andhra Pradesh. Chandrasekhara Sastry J., said that the effect of Section 3 is that all the rights of ryots cease and the same would vest absolutely in the Government. The old tenure is abolished, and the new one is granted under the Act. The new right which is the creation of the Act can he claimed under the Act in so far as the right to obtain a ryotwari patta under Section 11 is concerned, undoubtedly it is a right created by the Act. But we do not agree with the view that the rights of ryots are extinguished, and they vest absolutely in the Government. We are of the view that the old rights of the ryots are recognised and it is only in recognition of the pre-existing right that patta is granted.

93. The following decisions which more or less use the same language will have to be considered in the light of what is stated above: Venkateswara Rao v. Kamala Devi Rao Gopal Rao v. Official Receiver and State of Madras v. Karuppiah Ambaiam.

94. We do not propose to deal with them separately as the same criticism as mentioned above would apply to them.

95. The learned Advocate for the respondent strongly relied upon the following two Supreme Court decisions: Rana Sheo Amber Singh v. Allahabad Bank, and Sivashankar v. Baikunth . 1969 1 SCC 718. We do not however, think that these decisions provide any analogies to the present case. The second was relating to Bihar land Reforms Act, the language of which is far removed form the language of section 3 of the Act. As is seen the word “vest” does not necessarily mean the vesting of title nor word ‘transfer’ means absolute transfer of title or right. The transfer and vesting in regard to the land mentioned in clause (b) can be for the purpose of administration and ultimate conferment of pattas on the landholder. We have already about the ryoti lands.

96. Our view finds considerable support from the following decisions, Vinkaiah v. Subbarama Sastry . 1959 II An. W.R 539., State of A.P v. Lakshminsrasimha Raju . 1960 A.L.T 633., Venkata Subbarao v. State of Andhra . 1961-II An. W.R 329., Ramalu v. Appala Naidu . 1969-II A.L.T 303. and Neelakanteswara Raju v. Mangamma . A.I.R 1970 A.P 1 F.B.

97. The Madras High Court has also taken the same view in the following two decisions. Adakalathammal v. Chinnayan Paripundar and Sanjeev Naicker v. Shanmuga Udayar . 1965-II M.L.J 204..

98. What follows is that when the pre-existing right have been recognized under the Act and a ryoti in possession of the land cannot be dispossessed if he is found prima facie entitled to patta, it will be unrealistic to say that any such person, if dispossessed or is threatened with dispossession cannot institute a suit to protect his right of possession. The above said decisions in our view rightly take the view that such a suit can be filed in a civil court even though the person in possession may not have been granted patta. Section 9 C.P.C does not stand in the way of such suit we are therefore satisfied that the suit which the plaintiff in possession has filed was quite cognisable by the Civil Court and was not barred by any provisions of the Act. In a way Section 64 of the Act supports the view. It is unnecessary to consider what judgments of civil court or tribunal operate as res judicata as that question does not arise in the instant case in the view which we have taken.

99. We then turn to the merits of the two cases. In so far as the writ petition is concerned, in the view which we have taken about section 56(1), the orders of the Tribunal cannot stand. Admittedly the question as to who the lawful ryot is, has not arisen in relation to the two other clauses of Section 56(1). The petition under section 56(1) therefore was misconceived and ought not to have been allowed. The Settlement Officer had no jurisdiction to entertain any such application nor the Tribunal on appeal could have passed an order under Section 56(1). We do not therefore experience any difficulty in quashing the orders of the Settlement Officer and the Tribunal on the above said ground.

100. Even if the order of the Settlement Officer is treated to be an order under Section 11, even then since we are agreeing with the trial court that the land in question is covered by the Settlement deed and the boundaries tally, the 1st defendant would not be entitled to patta, but it would be the 1st plaintiff, who would be entitled to it. The Settlement Officer Anakapalli has not considered the document in relation to the boundaries which it mentions in order to locate the land. He dealt with the question about the identity of the land in a very cursory manner. He merely stated that “the gift deed exhibit R. 2 relates to O.S 394/3 measuring 2 acres and 70 cents, which is not the subject matter of the suit. Exhibit R. 2 has no bearing on this case.” No one can doubt that this is not a satisfactory way of dealing with the matter. He was not right in saying that the land in question was not the subject matter of the suit. In fact it is only in regard to that land that the trial court has found on the basis of boundaries that the suit land tallies with the relevant document.

101. The Tribunal was more cursory then the Settlement Officer. He disposed of that question by observing that “The two lands are entirely different. Evidently, Ex. R. 2 the title deed in favour of the appellant does not relate to the land in question and it is only on that ground his claim was rejected by the Assistant Settlement Officer.” No reasons are given nor the contents of the document and the boundaries were sought to be tallied. In that view of the matter also, the orders cannot stand. An order passed under section 11 is not only subject to judicial review but is also subject to the final decision of civil court in regard to the right of the parties. The civil court has taken the view that when the boundaries are definite, the mere fact that the survey number is not correctly given does not in any way affect any rights. In fact in the suit it was not disputed by 1st defendant that Exhibit A.3 did not relate to item 1 of the plaint schedule. Nor there was any denial in the written statement of first defendant that Exhibit A-3 did not relate to item 1 of the plaint schedule. The trial court therefore held that Exhibit A.3 relates to item 1 of the plaint schedule. In view of this finding with which we agree, the right to get the ryotwari patta really belongs to the 1st plaintiff and he is entitled to a ryotwari patta. We would therefore allow the write petition quash the orders of the Settlement Officer as well as the tribunal and hold that 1st plaintiff will be entitled to a ryotwari patta under Section 11 of the Act. The petitioner will get his costs. Advocate's fee Rs. 100/-.

102. Taking the appeal for consideration then, we agree with the trial court that in the partition of the 2nd plaintiff. There may be some difference as to whether the items were given to her by way of maintenance or by way of share. But that hardly afters the position that she was given these two items. It is unnecessary for us to reiterate the evidence considered by the trial court as we fully agree with the reasoning and the conclusion of the trial court in that behalf.

103. The next question was whether the suit land is covered by Exhibit A-3. The learned advocate for the respondent could not point out as to why the boundaries mentioned in Exhibit A.3 and in the plaint should not be accepted as correct, particularly when three boundaries identically tally. The fourth boundary is not such as to create doubts in regard to the correctness of the three other boundaries. We agree with the trial court on a consideration of the material that Exhibit A.3 covers item 1. That item fell to the share of the 2nd plaintiff and not to the share of the 1st defendant and that Exhibit A. 3 covers item 1.

104. The second question to which we must address ourselves is whether the plaintiffs were in possession within 12 years of the suit. The trial Court, on an appreciation of the evidence, reached the conclusion that they were so in possession of the suit lands. No particular argument was advanced to show how that finding of fact is vitiated. We also can see no valid point to take a different view. The cist receipts filed by the parties and the other oral and documentary evidence discussed by the trial court in paragraph 16 of its judgment, with which discussion we agree, clearly makes out that the plaintiffs were in possession of item 1. The cist receipts by the 1st defendant cannot be related to item 1. From Exhibits B.45 to B.47, the possession of the plaintiffs can be seen. We also agree with the view taken by the trial court that even if the partition and allottment of share is disbelieved in view of the adverse possession of the 2nd plaintiff for over 12 years, she can be said to have perfected her title to item 1. She was therefore quite Competent to transfer the same to the 1st plaintiff. The 1st plaintiff therefore rightly acquired the title. In the view which we have taken about the maintainability of the suit, it is impossible to agree with the conclusion of the trial court that in view of Section 56(1) of the Estates Abolition Act, the suit is not maintainable. The Civil court, in our view, has jurisdiction to entertain the suit and the plaintiffs had necessary right to ask for the issue of a permanent injunction as we have found that the plaintiffs were in possession on the date of the suit and as we have found that the 1st plaintiff who survives is now the owner of the suit property and is in possession. And since we find that the defendants are unlawfully threatening to dispossess the plaintiff, the plaintiff is entitled to the issue of a permanent injunction against the defendants prohibiting them form interfering with the possession of the plaintiff.

105. We have already seen that the trial court had found all the issues in favour of the plaintiff, but dismissed the suit only on the ground that the suit is not maintainable in civil court because of section 56(1) of the Estates Abolition Act. Since we disagreed with that view and we have agreed with conclusion in regard other issues with the trial court, what must follow is that the appeal has to be allowed and the judgment of the trial court to the extent it goes against the plaintiff set aside and in respect of other issues confirmed. The suit of the plaintiff as a result would be decreed with costs of both the court.