1. This Second Appeal arises out of a suit filed by the respondents as a representative suit for a declaration that the land in question is a communal land in which the ryots of South Vallur have communal rights of irrigation and drainage and that the assignment of the suit land in favour of the 2nd defendant by an order dated 21st December, 1952 of the Estates Manager is illegal and for the issue of a permanent injunction restraining the defendants from interfering with, the exercise of their rights in this communal land in so far as it related to drainage and irrigation and also for the grant of a mandatory injunction against defendants. 2 to 7 to restore Agakodu at their own cost to its original condition.

2. The necessary facts are that the plaintiffs in their individual capacity and as representatives of the ryots of South Vallur village instituted the suit alleging inter alia that Survey Nos. 12 to 18, the total extent of which was Ac. 10-54 cents situated in South Vallur village of Vijayawada Taluk are Communal lands. The ryots were using them for the purpose of irrigation and draining off their surplus, water. The estate was abolished on 1949. The Estate Manager on 21st December, 1951, permitted the 2nd defendant to remain in possession of those lands. Their contention therefore is that they are entitled to a declaration that the land in question is communal land and that the ryots of South Vallur have communal rights therein. They asked therefore for the reliefs mentioned at the outset of this judgment.

3. The 2nd defendant, who is the real contestant in the suit, resisted the suit on various grounds. His principal contention however was that he had been in possession of the lands since 1944. The Zamindar of South Vallur Estate granted, patta to him under Exhibit B-6 on 15th January, 1946 of the lands measuring 9-05 acres out of this 10-54 acres of lands. The Zamindar left the other land for the purpose of drainage and since facilities for irrigation were separately provided for, those 9-05 acres of the poramboke land was no more necessary for the purpose for which it was originally used. A patta therefore of this land was granted by the Zamindar to the 2nd defendant. Under Exhibit-B-15, after the estate was: abolished, the Estates Manager under section 3(d) of the Estates Abolition Act permitted the 2nd defendant to continue in possession. He therefore contended that the lands are not communal lands and the order of the Estate Manager has been, validly passed and since the plaintiffs have no communal rights in the lands as their needs have been already met by the Zamindar as mentioned above, the suit is liable to be dismissed. During the pendency of the suit, a patta was granted under section 11 of the Estates Abolition Act in favour of the second defendant under xhibit B-30 On 10th December, 1955.

4. Upon these pleadings the Second Additional District Munsif, Vijayawada, framed appropriate issues and after recording the evidence adduced by the parties dismissed the plaintiffs' suit. He found that the lands in question ceased to be used for the purpose for which they were originally meant as alternative arrangement for irrigation purposes has already been made and that for drainage 1.49 acres of land has been set apart. He also reached the conclusion that the plaintiffs have not been using for communal purposes the lands in question. He did not find any defect in the order of the Estates Manager and the subsequent grant of patta by the Assistant Settlement Officer in favour of the second defendant.

5. The plaintiffs, dissatisfied with that judgment, carried the matter in appeal. The Second Additional Subordinate Judge, Vijayawada, by his Judgment dated 8th December, 1961 allowed the appeal and decreed the plaintiffs' suit reversing the judgment of the trial Court. The learned Subordinate Judge held that the lands continued to be communal lands and that the plaintiffs and the other ryots are using the lands for communal purposes and that the grant of patta by the Assistant Settlement Officer is bad in law. It is this judgment of the learned Subordinate Judge that is now assailed in this second appeal.

6. The first contention of the learned Counsel for the appellant is that the learned Subordinate Judge has not given any categorical finding that the lands in question are used for communal purposes by the ryots of the South Vallur village. He therefore insisted that I should remit the case to the learned Subordinate Judge for giving that finding. A reading of judgment however, clearly shows that the learned Subordinate Judge did apply his mind to this aspect of the case although it is true that he did not pose for his consideration this question directly and decide the same in that way. But a careful reading of that judgment would disclose that he found expressly that the lands continued to be communal lands and that the ryots of the village still enjoy their communal rights. 1 do not therefore find any necessity to remit the case to the Subordinate Judge for that prupose.

7. The real question in this case is whether the Zamindar was competent to grant patta of the suit lands in favour of the second defendant in 1946 and whether the Estate Manager was also competent to pass an order under section 3(d) of the Estates Abolition Act and consequently whether the Assistant Settlement Officer was competent to grant patta as he did under Exhibit B-30 on 10th December, 1935. Any answer to these questions depend upon the character of the suit lands. It is not in dispute that the lands S. Nos. 12 to 18 admeasuring 10 acres and 54 cents, situate in South Vallur village in Vijayawada Taluk are poramboke lands. That they were used for the purpose of irrigation and drainage is also not in dispute. It is common ground that under Exhibit A-1, the Collector, Krishna, passed an order under section 20-A (i)(a) of the Madras Estates Land Act as amended by Madras Act VIII of 1934 to the effect that the lands, S. Nos. 16, 17 and 18 were no longer required for the purpose for which they were originally intended. Under that order, the Collector asked the Zamindar to say whether he had got any reversionary rights in the lands. What happened subsequently is not clear from the record. It is however common ground that S. Nos. 12 to 18 (both inclusive) continued to be communal lands and no order under section 20-A (2) was at any time passed by the Collector converting these communal lands into ryotwari lands or assigned them to anyone till the estate was abolished. It will thus be clear that there was merely a declaration that S. Nos. 16, 17 and 18 were no longer required for the purpose for which they were originally intended. No further order converting those lands to ryotwari lands was passed and that S. Nos. 12 to 18 continued to be communal lands till the estate was abolished.

8. The first question therefore which falls for my determination is whether the Zamindar was competant to grant patta in favour of the second defendant as he did in 1946 under Exhibit B-8. The answer must be in the negative. section 20-A of the Estates Land Act, which was in vogue at that time, clearly states that the District Collector may declare that any land or any portion thereof, which is set apart for any of the purpose referred to in sub-clauses (a) and (b) of clause (16) of section 3, is no longer required for its original purpose. He may also by order either direct that any such land or portion in respect of which such declaration in made be used for any other specified communal purpose or if such laud or portion is not required for any communal purpose, that it be converted into ryotwari land or landholder's ryoti land acquiring as the reversionary rights in such land Vest under the terms, express or implied, of the sanad, title-deed or other grant in the Government or in the landholder. Sub-section (2), which is more relevant, enjoins that without the written order of the District Collector under clause (b) of sub-section (i), no land which is set apart for any of the purpose referred to in sub-clauses (a) and (b) of clause 16 of section 3 shall be assigned or used for any other purpose. The sub-section further declares that nothing contained in that subsection shall effect or take away or be deemed to affect or take away the customary rights of the landholder or the ryots in the user of away such land.

9. Section 3(16) defines ‘ryoti land’. According to that definition, it 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.”

10. It will thus be plain that the lands in question, which were admittedly used for the purpose of irrigation and drainage by the ryots of the village, were not ryoti lands within the meaning of section 3(16), as clause (a) of that definition expressly excludes such poramboke lands. In view of section 20-A (2), therefore, the Zamindar, in the absence of any order converting the poramboke lands to ryoti lands, could not have granted patta to the 2nd defendant. His order therefore is clearly inconsistent with section 20-A (2) and consequently illegal. It cannot therefore create any right in the 2nd defendant.

11. Coming then to the order of the Estates Manager dated 21st December, 1952, Exhibit B-16, for the same reason it has to be held that the Estates Manager had no power to pass any order under section 3-B of the Estates Abolition Act. According to section 3 (b) the entire estate including all communal lands and poramboke vest in’ the Government. The Government may, after removing any obstruction that may be offered, forthwith take possession of such communal and poramboke land along with the estate. The Government, however, shall not, according to the proviso to that clause, dispossess any person of any land in the estate in respect of which they consider him as prima facie entitled to ryotwari patta. It is obvious that the 2nd defendant could not have been prima facie entitled to any ryotwari patta because the lands in question continued to be communal lands till the date when the order was passed by the Estate Manager.

12. I am not impressed by the argument that along with the estate the communal Character of the land also gets abolished. What it exactly means and implies is not clear. The estate is abolished and the Zamindar is divested of all his rights in the estate. How the character of the land, because of such abolition, gets altered is not clear from any authority or law. No authority was brought to my notice which decides that on the abolition of the estate, the communal character of the land also gets altered to any other character of the land or that all communal lands automatically become ryoti lands. It is true that on the day when the notification was made applicable to the estate of South Vallur, the Estates Land Act, according to section 3, stands repealed in so far as its application to the estate notified is concerned and consequently section 20-A would cease to apply. I have already stated that till the date when the estate was notified, no order converting the communal lands into ryotwari lands was at any time passed by the competent authority. The irresistible conclusion therefore is that till that date the lands continued to be communal lands. After the estate was abolished. I have no hesitation in holding that the communal lands, in spite of such abolition, continued to be communal lands. I am not concerned with the rights of any one in any lands. I am only concerned with determining the character of the lands. I do not therefore agree with the contention that merely because the estate was abolished, the communal lands become ryoti lands. When that is clear, any order passed by the Estates Manager under section 3 (d) become bad in law as he has no jurisdiction to pass any such order. He can pass orders only in regard to ryoti lands and not in regard to communal lands because nobody would be prima facie considered to be entitled to a ryotwari patta in regard to such lands. That order therefore also is illegal and cannot confer any title on the 2nd defendant.

13. I then turn to the order passed by the Assistant Settlement Officer under Exhibit B-30 on 10th December, 1955, granting patta in favour of the 2nd defendant. It is clear from that order itself that an application under section 11 (a) of the Abolition Act was filed before him for the purpose of granting patta. It is clear that in 1912 survey the lands in question were shown as P.W.D poramboke Agakodu. The Assistant Settlement Officer however was not correct when he stated that items 5 to 7, that is to say, S. Nos. 16 to 18, were eliminated from the porambokes list and included in the wet Ayacut of the village by the Collector. If thereby he meant that an order was passed by the Collector to the effect that these lands were no more required for the original purpose, then perhaps he is right. But if he intended to convey thereby that the poramboke lands were converted into ryotwari lands, he is definitely wrong as admittedly there is no order of the Collector to the effect. Likewise, the Assistant Settlement Officer is wrong when he states that the position of items 1 to 4, that is to say, Survey Nos. 12 to 15 (both inclusive) is exactly similar to that of items 5 to 7. It is not in dispute that no order declaring that these items were not required for the original purpose was at any time made by the Collector. In regard to all the items, it is admitted that no order was made by the Collector to convert them into ryotwari lands. It is true that the occupation by the 2nd defendant of these lands was considered as unobjectionable and dry assessment was levied from him since quite a time. The conclusion which the Assistant Settlement Officer reached in the said order is: “I therefore held that all the lands are not required for any communal purpose and they should be deemed as ryoti lands” It does not require much argument to state that this order is clearly beyond his jurisdiction. He is not the person to decide as to whether the communal lands were no more required lor the purposes for which they were originally intended. Nor could he pass any order in regard to their conversion. That they were not ryoti lands is clear from his order. That is why he used the expression that these lands “should be deemed” as ryoti lands. That the Assistant Settlement Officer is not competent to so ‘deem’ these lands as ryoti lands and grant patta cannot be doubted. I am therefore clear that the Assistant Settlement Officer was not only wrong in point of some material facts but acted without any jurisdiction in finding that the lands were no more required for communal purposes and that they should be deemed as ryoti lands.

14. That he had no such jurisdiction to decide is, in my judgment, very clear. Under section 3 of the Estates Abolition Act, as stated earlier, the estate along with all communal lands and porambokes vest in the Government. All rights and interests created in or over the estate before the notified date by the principal or any other landholder cease and determined as against the Government. Any person having rights recognised by the Act had to work them out under the said Act. The question is whether the 2nd defendant had any such right under the Act. When once the conclusion is reached that the character of the land till the estate was abolished was only communal land and it was never converted into ryotwari lands, what must follow is that the 2nd defendant could not have any prior right under the Act which can be worked out according to the provisions of the Act. It may be that he was in possession of the land either as a lessee of the zamindar or subsequently under the grant of a patta by the Zamindar.’ But as stated earlier, the zamindar was not competent to grant patta in regard to communal lands unless those lands are converted under section 30-A (2). In regard to communal lands therefore the zamindar could not have created any rights in favour of the 2nd defendant and consequently, the 2nd defendant had no right in these communal lands under the Act which can be worked out after the estate is abolished. What all he could claim is only the right to communal lands like any other ryot of the village. More than that he had no right in the suit lands. This conclusion is supported by a recent decision of the Madras High Court in Valathar Mooppanar v. Board of Revenue . 1966 1 M.L.J 354.. The 2nd defendant's application, therefore, under section 11 was misconceived and the Assistant Settlement Officer had no jurisdiction to entertain such an application and grant patta.

15. It is true that under section 11, the Assistant Settlement Officer can decide incidentally whether the lands in regard to which application for the grant of patta is made are ryoti lands or not, because it is necessary for the purpose of granting or refusing to grant the main relief under section 11. It must however be remembered that if the section is taken singly any determination of that question would be a decision in regard, to a jurisdictional fact, the Assistant Settlement Officer cannot by a wrong decision give unto himself a jurisdiction which he had not got. It is a general principle of law that an inferior tribunal cannot give itself jurisdiction by an erroneous decision on a matter on which its jurisdiction depends. No inferior tribunal can by its own decision finally decide on the question of the existence or extent of such jurisdiction. Such question is always subject to review either by the High Court under Article 226 of the Constitution or in a regular civil suit. No inferior tribunal can be permitted to usurp a jurisdiction which it does not possess.

16. But, at the same time, if the inferior tribunal has jurisdiction to conclusively decide the preliminary matter on which its further jurisdiction to pass final orders on the merits depends, then any determination of such preliminary facts would not be a decision on a jurisdictional fact. In such a case, neither the High Court under Article 226 of the Constitution nor a civil Court can go behind the decision of an inferior tribunal and held that it has acted without jurisdiction. It will be noted that in such a case the preliminary matter on which the jurisdiction depends being one which the inferior tribunal has to adjudicate upon conclusively, it is not a collateral matter, as it constitutes an issue tor the conclusive decision of the inferior tribunal itself. Whether in a given case any determination of facts is a condition precedent or in other words, the jurisdictional fact, or is a part of the same proceedings which can conclusively be decided by the tribunal depends upon the language of the statute under which the power is granted. Where the law does not make the existence of the preliminary facts an issue for the conclusive decision of the tribunal, the facts will be of a collateral nature and the decision of the Tribunal with regard to the existence of the facts will not be immune from attack either in certiorari proceedings or in a regular suit whereas if the law makes the existence of the preliminary facts an issue for the conclusive decision of the tribunal, any determination of such facts will be immune from interference by the High Court under Article 226 and it cannot be challenged in a civil Court by a suit. It is unnecessary to refer to the decided cases in this behalf as this position of law is not disputed.

17. In the light of this discussion, if the two provisions sections 11 and 56 of the Estates Abolition Act are kept in view, it will be clear that in any application filed under section 11 of the Act, the Assistant Settlement Officer can incidentally decide as to whether the land in question is a ryoti land. Such a decision if section 11 is read alone, would of course be a decision on jurisdictional fact and would be subject to the review by the High Court in a writ proceeding or in a civil suit by any civil Court. But, at the same time, it must be remembered that whether a particular land is a ryoti land or not, it is the Settlement Officer who has been conferred with jurisdiction to decide under section 56 of the Act. According to that section where, after an estate is notified, a dispute arises as to whether who is the lawful ryot in respect of the holding, the dispute shall be decided by the Settlement Officer. According to sub-section (3) of that section, any person deeming himself aggrieved by any decision of the Settlement Officer has to file an appeal to the Tribunal and subject to that his decision shall be final and not liable to be questioned in any Court of law. It is thus clear that in such cases the decision of the preliminary facts as to whether, a particular land is a ryoti land or not is not determined under the Act as a jurisdictional fact provided of course the Settlement Officer takes cognisance of the case under section 56 also and determines the issue in accordance with the procedure laid down for a proceeding under section 56 of the Act, and if after following the requisite procedure the Settlement Officer determines a particular land to be a ryoti land, it is obvious that such a decision is not collateral for the purpose of section 11 but is a decision on a fact which the Settlement Officer can conclusively decide. It would therefore be immune from any attack by way of civil suit.

18. In this case, however admittedly the Assistant Settlement Officer did not conduct any proceedings under section 56 of the Act. The plaintiffs were not parties to the proceedings under section 11. The order passed by the Assistant Settlement Office under section 11 also does not determine the question as to the character of the land. He does not say that the land was a ryoti land at the time when the estate was abolished. On the other hand he holds that it was a communal land and that it was no more required for the original purpose and it is he for the first time that declares that the communal lands should be deemed to be ryoti lands. That he has no power to convert the land has already been mentioned. That power prior to the abolition of the estate vested in the Collector under section 20-A of the Estates Land Act and after the estates were abolished it rested with the Collector under B.S.O 15(35). The Assistant Settlement Officer is not authorised to either declare that the communal lands were no more required for the original purpose or that they be converted or deemed to be ryotwari lands.

19. I am therefore satisfied that the order of the Assistant Settlement Officer does not come within the purview of section 56 of the Act and cannot therefore be considered as a final order which cannot be impeached in civil suit because of the bar mentioned in that section. It is an order passed under section 11 incidentally and to pass such an order is quite beyond the competence and jurisdiction of the Assistant Settlement Officer both under sections 11 and 56 of the Act. That order therefore must have to be ignored.

20. In this connection, the fundamental difference between inherent lack or want of jurisdiction and irregular assumption of jurisdiction must be kept in view as the consequences which flow from such orders are difference. Whereas an order passed by an authority with respect to a matter over which it has no inherent jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter but has assumed it otherwise than in the mode prescribed by law is not a nullity, which may be liable to be quashed in that very proceedings. But subject to that such an order is good and not open to a collateral attack. I have already held that the Assistant Settlement Officer had not jurisdiction to pass such an order at all. His order therefore is a nullity and can safely be ignored.

21. The result of the foregoing is that S. Nos. 12 to 18 in spite of the abolition of the estates continued to be communal lands although in regard to S. Nos. 16 to 18 there exists an order that they are no more required for the original purpose. In the absence of any order under section 30-A or B.S.O 15(35), such a land could not have been assigned by the Collector or any patta granted under section 11 by the Assistant Settlement Officer. It is open to the 2nd defendant to approach the Government, if he is so advised, for the conversion of the communal lands and grant of patta of the same to him in view of the circumstances of the case. But in the situation as it stands, it cannot be in doubt that the grant of patta in his favour is bad in law as the character of the land still continues to be that of communal land wherein the ryots of South Vallur village have communal rights. In that view of the matter, the decision of the learned Subordinate Judge cannot be said to be inconsistent either with the facts or the law. Although I have reached the conclusion by a separate route altogether. I agree with the conclusion of the learned Subordinate Judge and held that the plaintiff's suit has been rightly decreed and I see no reason to interfere in Second Appeal. The Second Appeal, is therefore dismissed. There will be no order as to costs. No leave.

22. Appeal dismissed.