1. The Point for consideration in this appeal is whether it is the plaintiff or the Second defendant who is entitled to occupancy rights in respect of the land situated in a Mokhasa Estate of Kunchanapalli in West Godavari District which has been notified on 18-8-1964. The dispute between the parties admittedly arose before the date of the Notification but the suit was also filed before the date of the Notification. It is now represented that the question whether S. 56 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, (No. XXVI of 1948) applies only to cases where the dispute arose after the Notification and the suit was filed subsequent to the Notification or whether the Section applies even to cases where the dispute arose before the Notification and the suit was also filed before the Notification is the subject of a reference to a Full Bench by Satyanarayana Raju, C.J, (as he then was) and Anantanarayana Ayyer, J., in C.M.A No. 387 of 1959 on 8-6-1965 which is still pending. This appeal will, therefore, be posted along with the Full Bench in so far as it relates to the answer to the question referred so that the learned Counsel in this case may also have an opportunity to make their submission. After the question is answered, the appeal may be posted before a Single Judge for disposal on other points.

2. In pursuance of the above order, this appeal next came on for hearing before Obul Reddy, J. Mr. T. Veerabhadrayya, Advocate for the appellants.

3. Mr. K. Narasimham, Advocate for the 1st respondent.

4. The Court made the following.

5. One of the questions that arises for decision in this Appeal is whether it is the plaintiff or the 2nd defendant who will be entitled to occupancy rights in respect of the lands situated in Mokhasa estate which has been notified on 18-8-1964. Venkatesm, J., before whom this Appeal came up for hearing on an earlier occasion, directs., this appeal to be posted along with C.M.A No. 387/59 which was referred to a Full Bench by Satyanarayana Raju, C.J, as he then was, of this Court and Anantanarayana Ayyar, J. The question referred to the Full Bench by the learned Chief Justice and Ananlhanarayana Ayyar, J., in the C.M.A was whether section 56 of the Madras Estates (Abolition and Conversion into Ryotwari) Act. No. XXVI of 1948 applies only to cases where the dispute arose after the Notification and a suit filed subsequent to the notification or whether the Section applies even to cases where the dispute arose before the Notification and a suit filed before the Notification.

6. Mr. T. Veerabhadrayya, learned counsel for the Appellant, brings to my notice that although C.M.A No. 387/59 was posted before the Full Bench, this appeal was not posted along with the Miscellaneous appeal in spite of the direction given by Venkatesam J. As the question whether Section 56 of the Madras Estate (Abolition and Conversion into Ryotwari) Act (No. XXVI of 1948) applies only to cases where the dispute arose after the notifications or to cases where the dispute arose even before the Notification, has not been decided by the Full Bench, although the C.M.A was disposed of on other points. I direct that the papers be placed before the Hon'ble the Chief Justice for posting the appeal before a Division Bench in the first instance.

7. In pursuance of the above order, this appeal came on for hearing before the Bench consisting of Satyanarayana Rao and Obul Reddy JJ.

8. Mr. T. Veerabhadrayya, Advocate for the appellants.

9. Mr. K. Narasimham, Advocate for the 1st respondent.

10. The Court made the following.

The judgment of the Bench was delivered by

Satyanaravana Rao, J.:— In this case, one of the questions raised is whether Section 56 of the Estates Abolition Act applies to cases where the dispute contemplated by the Section arose before the Notification

12. Under Section 1 sub-section (4) of the Act, it is provided:—

“This Section and sections 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68 shall come into force at once, and the rest of this Act shall come into force in regard to any Zamindari under-tenure or inam Estate, on such date as the Government may by notification appoint.”

13. The Government in order to apply the other sections of the Act have to issue a notification under the Act. In that event, Sec. 56 which is the crucial section in the case, applies. But the question is whether in a case where the dispute arose before the notification Section 56 is attracted. Section 56(1) provides as follows:—

“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.”

14. So that in the case of disputes falling within the Section quoted above they are necessarily to be decided by the Settlement Officer. So in all cases where the dispute arose after the notification, there is no difficulty and it is clear that the settlement officer alone will have jurisdiction. But the point raised is whether the section would apply to disputes which arose long before the notification. Prima facie without any authority, one would have thought that the first part of Sec. 56(1) clearly applies only to disputes which arose after the estate is notified. There is a conflict of opinion on this question. The starting point is the decision of Mr. Justice Rajagopala Ayyangar in Arunachalam Chettiar v. Narayana Chettiar . 1957 1 M.L.J 183. where his Lordship referring to the interpretation of this section observed at page 184:

“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 and 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”.

15. This decision is to a large extent accepted by Chief Justice Subba Rao of this Court (as he then was) in Appanna v. Sri Rama Murthy . 1958 I A.W.R 420.. Now the case before their Lordships was one where the disputes arose after the notification. He quotes with approval the view of Rajagopala Ayyangar, J.. As against these two decisions, there is an unreported decision of the Madras High Court of Justice Govinda Menon and Justice Chandra Reddi in A.S No. 312 of 1947. Their Lordships after considering the language of the section have taken the opposite view and they also considered the effect of the General Clauses Act, If the section is retrospective in operation. That aspect has not been referred to in the other decisions. The connected question is whether the right which was in existence before the notification or institution of a suit in the civil court is taken away if by reason of the retrospective operation, of the notification. These are important matters which, in our opinion, should receive the consideration of Full Bench to resolve the conflict. It is necessary to direct that the papers may be placed before the learned Chief Justice for referring the matter to a Full Bench.

16. We have not considered the other points that arises in the case and the Appeal may be posted after the Full Bench gives its opinion.

17. In pursuance of the above order this appeal came on for hearing before the Full Bench consisting of Mr. P. Jagamnohnn Reddy, C.J, the Hon'ble Mr. Justice Parthasaradhi and the Hon'ble Mr. Justice Ramachandra Rao.

18. Mr. T. Veerabhadrayya, Advocate for the appellants.

19. Mr. K. Narasimham, Advocate for the 1st respondent.

20. The Judgment of the Full Bench was delivered by Mr. Jaganmohan Reddy, C.J.

JUDGMENT

21. The question that has been referred to us by a Bench of this Court consisting of Satyanarayana Rao and Obul Reddy, JJ., is whether section 56 of the Andhra Pradesh (Andhra Area) Estate (Abolitio and Conversion into Ryotwari) Act, (XXVI of 1948) hereinafter referred to as “the Abolition Act” applies to a case where the dispute contemplated by that section arose before the notification. A preliminary objection was raised by the respondents advocate. Sri K. Narasimham, that this question does not arise because it is said that a Bench of this Court had earlier in Chigurupati Ventkatasubbaiah v. Ravi Punnayya held that a suit for possession and mesne profits is exclusively within the jurisdiction of a civil court to decide. In our view, a perusal of the plaint would show that the question referred is incidental to the main question relating to the title of the suit properties.

22. The plaintiff had filed the suit on 25-4-1959 for recovery of the plaint schedule lands situate in Kunchanapalli Mokhasa in Tadepalligudem in West Godavari District, which is admittedly an under tenure estate, claiming that she has occupancy rights therein and that the 2nd defendant even though he was a tenant for a short while, has no manner of right therein. The second defendant on the other hand, averred that he has occupancy rights in the suit lands as per the provisions of the Madras Estates Land Act (I of 1908) and that no one else has got any right to dispute his rights. He further averred that the question whether the plaintiff has the right or not is to be determined by the Settlement Officer under Section 56 of the Abolition Act and that the Civil Court has no jurisdiction to decide that question.

23. The issues as framed require a determination as to whether the plaintiff and her predecessors-in-title own the Melvaram and the Kudivaram interests in the suit lands, and whether the 2nd defendant and his predecessors-in-interest acquired occupancy rights in them. There was also an issue as to whether the trial court has no jurisdiction to try the suit.

24. It would appear that before the Bench which referred this matter, it was apparently contended that the question as referred does not arise, for determination, having regard to the nature of the suit, but that contention does not seem to have been considered be Cause Salyanarayena Rao, J., at the end of his referring order, had clearly stated that they have not considered the other points that arise in the case and that the appeal may be posted after the Full Bench gives its opinion. We are therefore, not concerned with any other question other than the one referred to us.

25. As we have earlier stated, the suit was filed on 25-4-1959 and was decreed in favour of the plaintiff on 24-1-1962 against which the present appeal was filed in this Court on 1-3-1962. During the pendency of this appeal, the notification under Sub-Sec. (4) of section was published on 27-8-1964, and as and from that date, estate of Kunchanapalli Mokhasa stood transferred to the Government section 1(4) of the Abolition Act provides thus:

“This Section and sections 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68 shall come into force at once, and the rest of this Act shall come into force in regard to any Zamindari, under-tenure or inam estate, on such date as Government may, by notification, appoint.”

26. In order to apply the other sections of the Act therefore, the Government have to issue a notification, and section 56 becomes applicable only after such notification, namely, in this case, after the suit has been filed. The question therefore is whether in a case where the dispute arose before the notification section 56 is attracted.

27. Sec. 56(1) is in these terms:

“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.”

28. It is apparent from the above provision that in a case where, disputes arise in respect of matters pertaining to (a), (b) or (c) enumerated in the section, it is only the Settlement Officer that can decide that dispute.

29. Sri Veerabhadrayya for the appellant contends that inasmuch as an appeal is a continuation of the suit and the dispute is one which has not been finally decided, though the suit was filed prior to the notification, the dispute must be held to arise subsequent to the notification.

30. Before we deal with the several decisions referred to us by the learned Advocates for the appellants and the respondent it will be profitable to examine the language of the section itself and the other provisions relating thereto. It may be stated that before the Abolition Act, whether any rent due for any fasli year is in arrears or what amount of rent is in arrear, had to be determined under S. 77 of the Madras Estates Land Act, which provided that subject to the provisions contained in that Act, a landholder shall be entitled to recover any arrear of rent by a suit before the Collector by distraint and sale of movable property or by sale of a ryot's holding. As to when rent becomes an arrear, is stated in S. 60 of the said Estates Land Act, namely, that “an installment of rent not paid on the day on which it falls due becomes on the following day an arrear of rent.”

31. It is obvious from the above provisions that in so far as matters relating to (a) and (b) specified in S. 56(1) of the Abolition Act are concerned, prior to the estate being taken over under the Abolition Act, the dispute had to be determined by the Collector, not only in respect of whether any rent due from a ryot for any fasli year is in arrear, but also what amount of rent is in arrear, and the Collector would, after an enquiry, grant a decree and the same court ??? executed in accordance with the provisions of that Act.

32. By virtue of S. 3(a) of the Abolition Act, the Estates Land Act stood repealed as and from the date on which each of the villages is notified and in place of the Collector, the Settlement Officer was prescribed as the authority before whom these matters could be agitated. In respect of the matter referred to in Cl. (c) of sub-sec. (1) of S. 56 as to who the lawful ryot in respect of any holding, is, a dispute relating thereto prior to the notification can only be agitated in civil Court. It is a matter for consideration therefore whether disputes which were pending before a civil court prior to the notification, and for that matter, before a Collector, are disputes which could be said to arise after the estate is notified, within the meaning of section 56(1) of the Abolition Act. This in turn raises the further question. When does a dispute arise?.

33. It appears to us that a dispute will arise for consideration only when such a dispute has to be determined by some authority competent to determine it, because the object of S. 56(1) is to confer jurisdiction in respect of disputes arising after the notification on the Settlement Officer. It may be that there have been wranglings between the parties, one party asserting and the other denying the liability and though in the wider sense of the term “dispute” such wranglings or quarrels may be termed dispute, the Legislature was not in our view using the word in that sense, but was using it as a noun in the sense that it arises in a contest. But where a dispute in fact so arises for adjudication before any of these authorities competent to determine it prior to an estate being notified it cannot be said that the dispute arises again subsequently at any other time. Where however a dispute arises and continues without any steps being taken for its adjudication,—because all disputes must ultimately culminate in steps being taken for their adjudication—the dispute will be deemed to continue and arise only when such steps are taken. The object of Section 56, as we have said earlier, is to prescribe an authority to settle a dispute of the kind referred to therein; and a dispute that is not already seized by some authority cannot be said to ‘arise’ and will arise only when steps are taken for having it adjudicated. In that sense, though a dispute may arise earlier, in fact it arises only when one person avers before a competent tribunal and the other denies it. We are, therefore clear in our minds that where a dispute arises for the first time for adjudication after the notification it is said to ‘arise’ within the meaning of S. 56(1) of the Abolition Act. In that sub-section, the Legislature has clearly indicated this intention when it provided that where ‘a dispute’ arises after the estate is notified the dispute “shall be decided by the Settlement Officer.” The indefinite article “a” used in the first part of that sub-section refers to a depute which requires a decision, and in the Second part, the definite article “the” emphasises that the dispute which has to be adjudicated shall be decided by the Settlement Officer. The language of Section 56(1) does not lend itself to the interpretation, whether express or implied that the authorities already seized of a dispute in respect of matters referred to in that sub-section are prohibited from adjudicating thereon. It is a well established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise. Maxwell on Interpretation of Statutes (11th edition) page 122 states: “It is perhaps on the general presumption against an intention to disturb the established state of the law or to inter there with the vested rights of the subject, that so strong a leaning now exists against construing a statute so as to bust or restrict the jurisdiction of the superior courts, although this feeling may owe its origin to the pecuniary interests of the judges informer time, when their emoluments depended mainly on fees”. Whatever be its origin, the presumption is in favour of the continuance of the jurisdiction vested in the Courts unless otherwise so directed by the state. It would not be inferred merely from the grant of jurisdiction to a new tribunal over certain matters that the legislature intended to deprive the superior Court of the jurisdiction which it had already possessed over the same cases. A vested right of appeal can be taken away only by express enactment and not otherwise. In Garikapati Veeraya v. Subbaiah Choudry the question was whether an appeal filed against a decision in a suit decided prior to the constitution had to satisfy the condition of valuation of Rs. 10,000/- preserved by Sections 109 and 110 of the Code of Civil Procedure or Rs. 20,000/- as modified by the Adaptation of Laws Order for purposes of an appeal to the Federal Court and consequently by virtue of Article 135 to the Supreme Court. S.R Dass, C.J, referring to the observations of their Lordships of the Privy Council in the well-known case of Colonial Sugar Refining Co. Ltd. v. Irving pointed out that the provisions of law there enunciated have been firmly established in English jurisprudence and the decision is accepted as sound and cited with approval in leading text-books and that the same has been followed and applied in numerous decisions in England and India and its authority has not been questioned by any of the learned counsel appearing before them. A few sentences in the observations of their Lordships of the Privy Council in the Colonial Sugar Co.,'s case will bear repetition. “To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure”. In principle their Lordships see no difference between “abolishing an appeal altogether and transferring an appeal to a new Tribunal”. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.

34. None of the decisions to which we have been referred by the learned Advocates militate against these basic principles. In fact, those cases are easily distinguishable on facts and we do not think that anything has been stated there in which supports the contention of the learned Advocate for the appellants. Great reliance has been placed on the observations of Rajagopala Ayyangar, J., (as he then was) sitting singly in S. Ar. St. Arunachalam Chettiar v. S.N.S. Narayanan Chettiar . 1957 I M.L.J 183. as supporting the contention advanced by the learned Advocate for the appellants. The learned Judge had observed at page 184 while dealing with Section 56 of the Abolition Act urns: “If therefore, a dispute in relation to matters mentioned in section 56(1)(a) and (b) would take in disputes originating earlier than the notified date but continuing even after words, 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 and 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 disputes ‘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.” From these observations it is sought to be contended that unless there is a binding decision by the Civil Court of a dispute which is before it, the dispute is ??? date when the estate is notified. But this contention ignores the fact that the learned judge had specifically stated that all disputes which are factually present after the notified date come within the jurisdiction of the Settlement Officer and he further pointed out the disputes which are excluded and matters pending before other authorities before the notified date was one such. It cannot, therefore, be said that while disputes pending before the other authorities are not disputes within the meaning of section 56(1) disputes pending before the civil courts are disputes which are factually present on the date when the estate is notified. Reliance is also placed on the observation “that the dispute is difference which exists only until it is settled” for the contention that a dispute exists until it is finally decided by the ultimate appellate court, because that alone can be a binding adjudication: as such it is said to arise on the date when the estate is notified. We do not think that the learned Judge intended his observations to be construed in that manner. Even if he did, with great respect, we are unable to subscribe to that view as arising on a plain interpretation of Section 56(1), nor do we think that the question which is before us fell for decision in that case, where the petitions for pattas were filed before the settlement officer after the Estate was notified and though the settlement officer granted the pattas, the estates Abolition Tribunal held that the Settlement Officer had no jurisdiction because the dispute in respect of that matter had arisen prior to the notification. It is obvious that the Tribunal was clearly wrong in holding that the settlement Officer had no jurisdiction because dispute between ryots as to who is the lawful ryot arose before the notification of the estate. The dispute as to whether pattas should be granted to the appellants or not arose after the estate was notified when the Settlement Officer had clearly jurisdiction to decide that matter: An earlier unreported Bench decision of the same Court (consisting of Govinda Menon and Chandra Reddy, JJ.) in A.S No. 312/1947 decided on 23-11-1951 where the facts were similar to those in the instant case, does not seem to have been brought to the notice of Rajagopala Ayyangar, J.. In that case, the 1st respondent had instituted a suit O.S No. 34/46 for a declaration that he alone is the occupancy ryot and none of the defendants-appellants had rights of occupancy in them and as such he is entitled to immediate possession thereof with profits from 1-6-1945. The trial court decreed the suit as prayed for and negatived the contentions of the defendants. Against that judgment and decree, an appeal was filed which was being considered by the Bench. The learned counsel for the respondents raised preliminary objection that Section 56(1) of the Act takes away the jurisdiction of the Civil Courts to decide questions as to who is the lawful ryot in respect of any holding in an estate after coming into force of that Act and that such a dispute can only be decided by the Settlement Officer. The contention on behalf of the appellants was that section 56(1) has no application and that having regard to the fact that the suit for declaration of the plaintiff's right as occupancy tenant was filed long before the notification of the Estate the provisions of Section 56(1) does not govern the case. Section 8 of Madras General Clauses Act, similar to section 6 of the General Clauses Act 10 of 1897 as adopted by the Government of India was referred to by the learned advocate in support of the contention that once proceedings are started in civil court, all rights which the parties had on the date of the institution of the suit are preserved to them through the rest of career unless they are expressly or by necessary intendment taken away by the amending Act. In other words the argument was that Section 56 of the Abolition Act does not affect pending proceedings in Civil courts nor does it take away the rights incidental to the filing of the suit. This contention was accepted by the Bench Chandra Reddy, J., (as he then was) after referring to the meanings of the word “arises” in the Oxford Dictionary as “be heard”, “to originate”, “be born” and “came into notice” thought that the expression can only mean “disputes born or disputes originating after the estate is notified.” i.e, disputes which are raised for the first time after the notification. The learned Judge further observed: “If it was the intention of the legislature to cover and to include disputes already in “existence on the date of the notification of the estate,” it would have made its intention clear in unambiguous terms by providing for pending disputes also. It is well-settled rule of law that it is only by express provisions that the jurisdiction of Civil Courts can be taken away. In our opinion, therefore Section 56 has not the effect of depriving Civil Courts of their jurisdiction to decide questions relating to occupancy rights in respect of holding in an estate already pending before them and, therefore, “cannot have any application to the present case.”

35. The case of Paidi Peda Appanna v. Mocheela Sriramamurthy . 1958 1 An. W.R 420. also is of no assistance, because in the case the estate was notified on 7-9-1950 and the suit was filed in the Sub-Court on 6-4-1951 when clearly it had no jurisdiction and the Bench consisting of Subba Rao, C.J, (as he then was) and Ranganadham Chelli, J., so held it. At page 426 Subba Rao, C.J, observed: “In the present case the suit was filed after the notified date for recovery of rent from the defendant. The defendant raised the question that he is the lawful ryot and not the plaintiff and also questioned the Corrections of the quantum of rent claimed. Both questions fall under Section 56(1) of the Act and therefore these questions cannot he agitated in a Civil Court.

36. Pillutla Narasimhayya…* v. Molakalapalli Perayya (Died) By L.Rs… . 1960 2 An. W.R 215. is also a case where the suit was filed after the estate was notified. The estate was notified on 7th September, 1949 and the suit was filed on 11-7-1951. Bhimasankaram J., delivering the judgment of the Bench consisting of himself and Srinivasachari J., while referring to the case of Appanna v. Sriramamurthy (Supra) and doubting the soundness of the actual decision in the case, nonetheless, observed. “This does mean, however that the general principles as to the Civil Courts jurisdiction which that decision enunciates are unsound. Moreover, we are inclined to adopt the interpretation the learned Judges put upon the expression “where after an estate is notified a dispute arises” as covering also a pre-existing dispute which subsists after the notification………” The dispute is clearly one which was pending when the Act came into effect and can thus be properly said to be within the scope of the Act, as pointed out in the above decision. It is manifest that if that is so, the procedure to be followed by the plaintiff is to file an application before the “Settlement Officer”, in accordance with the rules framed by the State Government under their rule-making power, for the “determination of the dispute between him and the defendant.” “The Civil Court has no jurisdiction to give a declaration as to a right the determination of which expressly committed to the officer and the Tribunal appointed under the Act. It seems to us, therefore that the present suit should fail”.

37. It appears to us that neither in Appanna's case nor in Narasimhayya's case were the learned Judges called upon to consider a case where a suit had been filed prior to the date when the estate was notified, and the adjudication thereof was pending before the trial court or if it was adjudicated was the subject matter of an appeal, which was either filed before the said date or subsequent thereto; nor are there any observations which can be construed as divesting the Civil Courts of their jurisdiction in respect of the said proceedings.

38. Sri Veerabhadrayya, however, contends that the effect of a postponing clause such as section 1(4) of the Abolition Act, whereunder Section 56(1) along with other sections not specified in the sub-section came into operation on the date when the estate was notified, was to give it a retrospective effect. In support of this proposition, he has cited a passage, from Craies on Statute Law, 6th Edition, page 392, but this passage itself throws great doubt on such a proposition. It is observed by the learned author: “A postponement clause in an Act has been sometimes said to be an indication against the presumption that a retrospective intent is not to be inferred” Wright, J., in Re-Athlunney (1898 (2) Q.B 547) cited in support of these observations, said: “One Exception to the general rule has sometimes been suggested, viz. that where, as here, (Section 23 of the Bankruptcy Act) the commencement of the operation of an Act is suspended for a time this is an indication that no further restriction upon retrospective operation is intended. But this exception seems never to have been suggested except in relation to enactments such as, statutes of limitations and even in relation to these, it is questioned in Moon v. Durden . 1848-2 Exch. 22.” After examining several decisions, again at page 393, Craies states: “The result of these decisions seems to be that the suggested exception is rarely if ever applicable, and cannot be accepted as an undoubted rule of construction.”

39. The decision by a Bench of the erstwhile Hyderabad High Court consisting of Misra, C.J and Deshpande, J., in Maram Raj v. Aknoor Yelluga . A.I.R 1955 Hyderabad 56., is also distinguishable because in that case Section 99 of the Hyderabad Tenancy & Agricultural Lands Act (XX of 1950) which specifically prohibited civil courts, from entertaining disputes arising from the enactment, came up for consideration. The language of the Section, it will be observed, was categorical in its prohibition and expressly barred the jurisdiction of the Civil Courts from entertaining matters dealt with under the Tenancy Act.

40. The result of the examination of the provisions of Section 56(1) and the consideration of the decisions referred before us is that the provisions of that Section are not retrospective in operation in divesting the jurisdiction of the Civil Courts in matters arising before, the date when the section came into operation and accordingly where a dispute is not pending on the date when the estate is notified before, a Civil Court vested with the jurisdiction to decide or determine the matters referred to in that section, that dispute if it falls for adjudication on or after that date can only be decided by the Settlement Officer, but where the dispute was already before a civil court, Civil Court alone have jurisdiction to decide that dispute.

41. The reference is answered accordingly.

xxxxxx

42. In pursuance of the order of the Full Bench this Appeal came on for hearing before the Bench consisting of the Honourable Mr. Justice Krishna Rao and the Honourable Mr. Justice Madhava Reddy.

43. T. Veerabhadrayya, Advocate for the appellants.

44. Mr. K. Narasimham advocate for the 1st respondent.

(Judgment of the Bench was delivered by

Krishna Rao, J.

JUDGMENT

45. This appeal is filed by defendants 1, 3 and 4. The first respondent herein filed a suit O.S No. 28 of 1959 in the Court of the Subordinate Judge, Eluru, out of which this appeal arises, for recovery of possession of the plaint schedule lands after rejecting the defendants therefrom, for recovery of Rs. 300/- towards past profits for three years and also for future profits. The plaint schedule land is situated within the Mokhasa Agraharam, of Kunchanapalli, West Godavari District. One Jaddu Subbayya purchased an extent of Ac. 70-00 of land in the said Agraharam by a deed of Sale, Ex. A-1 dated 18-2-1907, that is before the passing of the Madras Estates Land Act, from the Mokhasadar. Out of the property thus acquired. Subbayya retained Ac. 35-00 and sold away the rest to the father of the second defendant. In a division of the property between the sons of Subbayya, the plaintiff's husband, who was one of the two sons, got the suit property of Ac. 17-50 cents for his share. The second defendant who was admittedly a tenant of the plaintiff refused to vacate the land after the expiry of his lease in 1947. The plaintiff came to know that defendants 1, 3 and 4 began to set up rights under the second defendant. Hence the plaintiff filed the present suit for recovery of possession on 25-4-1959.

46. The second defendant was adjudicated insolvent in I.P 11 of 1955. The Official Receiver in whom the estate of the second defendant vested, sold among others, the Kudivarnm rights in the suit land belonging to the insolvent for the insolvent showed the same as his property in the schedule filed before the insolvency Court. In the sale conducted by the Official Receiver, the Kudivaram rights in the suit property were purchased by one M. Rajagopala Raju and after his death his legal representative sold the said interest to the first defendant under Ex. C-4 dated 20-9-1957. Defendants 3 and 4 claimed to be the lessees under the second defendant under Ex. B-1 and B-2 of the year 1954. The case of the contesting defendants is that the plaintiff was landlord entitled only to the Melvaram rights, that the second defendant being a tenant under the plaintiff, became a ryot accusing occupancy rights under the provisions of the Madras Estates Land Act, 1908, that defendants 1, 3 and 4 who claimed under the second defendant are entitled to remain in possession and that the plaintiff's suit should be dismissed. The court below decreed the suit for possession together with past profits of Rs. 300/- and directed an enquiry into future profits by a separate application holding that the plaintiff is entitled to both Kudivaram and Melvaram rights obtained under the sale deed Ex. A-1 by her father-in-law, Subbayya from the original Mokhasadars and that the second defendant is not therefore a ryot but a mere tenant without a right of occupancy. The court below also held that the plaintiff was in possession within 12 years of the suit and that the last payment of rent by the second defendant to the plaintiff was on 6-8-1947 evidenced by Ex. A-4. The second defendant there after did not pay any rents and he continued in possession not as a tenant holding over but as a person in unauthorised occupation. The case of defendants 1, 3 and 4 depends upon the merits of the second defendant's plea of occupancy rights.

47. The above appeal was filed on 1-3-1952 and during the pendency of the appeal in this court, the suit Mokhasa village was abolished as an inam estate under the Madras Estates Abolition Act (1948) and the relevant notification under the Act was made on 27-8-1964. In the above appeal, the following question was referred for consideration to a Full Bench; viz.;

“Whether Section 56 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) applies to a case where the dispute contemplated by that section arose before the notification.”

48. A Full Bench consisting of Jaganmohan Reddi, C.J, Parthasarathi and K. Ramachandra Rao, JJ., gave its opinion dated 16-9-1968 holding that section 56 of the Act cannot have retrospective operation and that a civil court cannot be divested of its jurisdiction when it is already seized of jurisdiction to decide matters contemplated by section 56 of the Act. Subsequently, the appeal was again posted before us for disposal on merits. It is however necessary for us to clarify that in the instant case where the plaintiff sued for recover of possession and profits, the preponderance of authority in this court as well as in the Madras High Court is that even after abolition of on estate, the civil court has jurisdiction to entertain a suit for such reliefs which cannot be given by the Settlement Officer under Section 56 of the Act and that the questions contemplated by Section 56 of the Act can be incidentally decided by the civil Court. In the present case, even if the suit had been brought subsequent to the notification, the civil court is competent to entertain the suit and there is no bar of jurisdiction under section 5th of the Act. This position is not disputed by the learned Counsel for the appellant, Sri Veerabhadrayya.

49. The learned counsel for the appellant raised the following two questions for our consideration:

(i) The plaintiff is landholder owning only the Melvaram right and that the second defendant under whom defendants 1, 3, and 4 claim, is a ryot entitled to occupancy rights in the suit land: and

(ii) In view of the abolition of the estate, the property stands vested in the State Government and that no decree for possession can be granted in favour of the Plaintiff.

50. Taking up the first point for consideration, the learned counsel for the appellant has not been able to place any material before us for disturbing the finding of the trial court. It is not suggested by the learned counsel that on the date of Ex. A-1 of the year 1907 there were cultivating tenants in possession of the land and that the Mokhasadar conveyed only the Melvaram right to Subbayya the plaintiff's father-in-law. The case of the second defendant is that his father was let into possession only by the plaintiff after she became entitled to the suit property. We therefore confirm the finding of the trial court that plaintiff is entitled to both Melvaram and Kudivaram rights with respect to the suit land and that the second defendant is a mere tenant and not entitled to any occupancy right. No arguments are advanced before us as regards the decree and the direction for profits granted by the lower court.

51. The second question for consideration which is practically the main point argued before us by the learned counsel for the appellant is that the plaintiff cannot be given any decree in view of the estate having vested in the Government. This question has arisen on account of a subsequent event, namely the abolition of the estate in 1954 and hence we permitted the learned counsel to raise the same as it is one of law. Though there is preponderance of authority on this question against the contention of the appellant's learned counsel, he placed reliance upon a recent judgment of a learned Single Judge of this court in support of his contention. We would not have considered this point but for the fact that we are invited to deal with the correctness of the said decision, relied upon by the learned counsel for the appellant. Before referring to the decisions relating to this question to set necessary, it is necessary to set out the relevant provisions in the Estates Abolition Act (1948) in order to appreciate the argument.

52. Sec. 1(4) is as follows:

“This Section and sections 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68 shall come into force at once; and the rest of this Act shall come, into force in regard to any Zamindari, under-tenure or inam estate, on such date as the Government may, by notification, appoint.”

53. Sec. 3. With effect on and from the notified date and save as otherwise expressly provided in this Act—

(a) xxxxxxxx

(b) the entire estate (including minor inams (post-settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate; all communal lands and poramhokes; other non-ryoti lands; waste lands; pasture lands; Lands Lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances;……… ………”.

(c) all rights and interests created in or over the estate before the notified date by the principal or, any other landholder, shall as against the Government cease and determine;

(d) the Government may after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas maps, plans and other documents relating to the estate which the Government may require for the administration thereof:

Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider he is prima facie entitled to a ryotwari patta.—

(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;

(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta;

(e) xxxxxxxx

(f) xxxxxxxx

(g) 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 this Act, and any other rights and privileges which may have accrued to them in the estate before the notified date against the principal or any other landholder thereof shall cease and determine and shall not be enforceable against the Government or such landholder.

54. Sec. 11. Every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of—

(a) xxxxxxxx

(b) xxxxxxxx

55. Sec. 12. In the case of a zamindari estate, the land holder shall with effect on and from the notified date, be entitled to a ryotwari patta in respect of—

(a) xxxxxxxx

(b) xxxxxxxx

56. Sec. 13. In the case of an inam estate, the landholder shall with effect on and from the notified date, be entitled to ryotwari patta in respect of—

(a) xxxxxxxx

(b) xxxxxxxx

20(1) In cases not governed by Sections 18 and 19, where before the notified date, a landholder had created any right in any land (whether by way of lease or otherwise) including rights in any forest, or mines or minerals, quarries, fisheries or ferries, the transaction, shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government.

Provided…………………………

64. Where a person—

(a) is entitled to the ownership or to the possession or occupation of any land or building immediately 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 thereof; and

(b) has not on that date lost his right to recover the possession or occupation of such land or building; he shall, for the purposes of this Act and subject to the provisions thereof, be deemed to be the owner, or to be in possession or occupation, of such land or building;

Provided that any lawful transferee of the right to the possession or occupation of such land or building shall, save as otherwise expressly provided in this Act, continue to have the same rights against his transferor, as he had immediately before the notified date;

Provided further that any lawful transferee of the title to such land or building shall be entitled to all the rights under this Act of his transferor.

57. The above provisions may be summed up as follows: On and from the notified date, the entire estate vests in the Government. The Government may take possession of the estate and all other things required for the administration thereof. No person shall be dispossessed whom the Government considers as being prima facie entitled for a ryotwari patta. If any proceeding for the issue of a patta is pending before the appropriate tribunal, no action will be taken by the Government for dispossessing any person pending such adjudication before the tribunal. Special provisions are made, for the constitution of tribunals and for the grant of ryotwari pattas in favour of ryots and landholders in the case of Zamindari as well as inam estates. Subject to some conditions, certain rights created by the landholder before the notified date in favour of third parties are saved. All persons whose rights of ownership, possession or occupation were not extinguished by the date of the notification are deemed to be persons holding such rights for the purposes of the Act. It is also significant to note that there is no provision in the Act requiring the existing land holders or ryots to abandon their lands and surrender the same in favour of the Government. There is also no provision in the Act requiring that the persons entitled to ryotwari pattas should apply within a specified date in default of which they should be deemed to have lost their rights in the property, In cases where proceedings are actually pending for the issue of pattas, it is provided that the persons claiming such rights shall not be dispossessed pending adjudication of such rights. In cases where no proceedings are pending for the issue of patta under the relevant provisions of the Act, the question arises whether it is open to the Government to evict persons forthwith from the land as persons in unauthorised occupation under the Madras Land Encroachment Act. The provisions of section 3(d) proviso clearly indicate that even in such a case, the right of the Government to dispossess any person arises only when it considers that the person is not prima facie, entitled to a ryotwari patta. If the question is under consideration before the tribunals, it is provided that the Government shall not dispossess the persons until their claims are adjudicated upon by the tribunals. In other cases, that is, where the parties have not applied for pattas, it follows on a reasonable interpretation of the proviso that the Government should take suo motu proceedings to consider whether a person is prima facie entitled to a patta or not. Unless the Government, decides the said question either in such proceedings taken sno motu or in the proceedings started on the application of the parties no person in actual possession or entitled to such possession, will be deprived of his rights by the Government. Therefore until the claims of the persons are examined as aforesaid, the persons in actual possession are entitled to continue as before, even after the notified date. The object of vesting the property in the Government is to enable the Government, firstly, to issue pattas in favour of persons entitled to such pattas and in all other cases to assign the land, to whomsoever the Government desires as the owner of the property. The estate having vested in the Government, it is the Government alone that can take proceedings to take possession of the property after evicting persons in occupation. It therefore follows that it is not open to any person to trespass upon the land in the actual possession of a landholder or a ryot and to plead that in view of the vesting of the estate in the Government he is entitled to trespass on the land and that the only remedy of the erstwhile landholder or ryot is to obtain a patta under the provisions of the Act. This, in our opinion was not the intention of the legislature. Having regard to the summary of the relevant provisions set out above, the right of persons in actual possession or those having a right to possession on the date of the notification are left intact and specifically preserved by section 64 of the Act. It is common knowledge that after the notified date, it is not possible in the nature of things for the Government to conduct survey and settlement operations and issue pattas to the various persons within a short time; and in many cases it has taken more than 10 to 15 years. Even today, in the case of several estates which have been taken possession of even as early as 1950, pattas have not been issued to persons. If before the issue of such a patta, a person is wrongfully ousted from possession by a trespasser or if his peaceful possession is illegally threatened by another or if a person commits or threatens to commit other wrongful acts by way of cutting trees or otherwise causing damage to the property, the owner of the property should certainly be entitled under general law to protect his own possession either by suing in ejectment or for an injunction on the basis of his prior possession or possessory title. Such a person can always say that his possession cannot of disturbed except by the real owner who is the Government or any other person claiming from the Government. It is not open even to the Government to disturb the possession and enjoyment of the previous pattadars unless the Government holds that the person is not prima facie entitled to a ryotwari patta. We are of the opinion the though the entire estate vests in the Government the persons in previous occupation and having a right to possession are certainly entitled under general law to protect their own rights by resorting to the civil court for appropriate relief and whatever decree that is passed in favour of such persons, it is always subject to the right of the Government under the Act to evict the particular person if he is not entitled to a ryotwari patta. Such a right to protect one's possession is based upon the general principle that a person in possession of the property even without title can always protect his rights by suing either for recovery of possession or for an injunction as a trespasser as his previous possession is always good against everybody in the world except the real owner, vide. Narayana Rao v. Dharmachari. If the contention of the appellant's learned counsel, namely, that until a patta is obtained, the ryot or landholder cannot sue before a Court to protect his possession, it would result in dangerous consequences opening a wide door for persons to take law into their own hands and disturb persons already in peaceful possession of properties.

58. We will now refer to the decided cases on the point. In Rama Rao v. State of Andhra Satyanarayana Raju, J., (as he then was) sitting alone, held that so long as the claim for a ryotwari patta is pending before the Settlement Officer and on appeal before the Tribunal, it is not possible to say that the persons already in possession should be treated as trespassers liable to be evicted under the Land Encroachment Act.

59. In Bobbili Sri Ramamurthi v. Bachu Dhan Raju, a landholder filed a suit claiming that the land was his private land and that the defendants are trespassers who set up false claims for occupancy rights. It was found that the land was not ryoti land and that the defendants had no rights of occupancy. In answer to a contention that the entire estate vested in the Government after the abolition of the same and that the plaintiff has no right to sue in ejectment as he did not obtain a patta from the Government under the relevant provisions of the Act, it was held by N.D Krishna Rao, J. (as of then was) who delivered the judgment of the Division Bench, consisting of himself and Chandra Reddy, J., (as he then was) that under proviso (ii) to section 3(d) of the Act, the landholder is entitled to continue in possession until the Government considered that he had no prima facie right to obtain a patta and that he is therefore surely entitled to evict any trespasser from the land. It was further pointed out that there was nothing in the Act to support the view that the landholder has no right to possession of private land until he gets a ryotwari patta in respect of it under Section 12.

60. In Adakalathammal v. Cepanipundar . A.I.R 1959 Madras 447. a Division Bench of the Madras High Court held that if a person has been in possession of a ryoti land and another person has trespassed on his holding and no ryotwari patta has actually been granted to either of the persons, there is nothing prima facie many of the provisions of the Act which prevents the civil court from entertaining a suit for possession by a person who had been in possession and who had been dispossessed.

61. In Siva Kuttumba Rao v. Sarvalakshmma Kummarayya, J., sitting alone, following the decision in Bobbili Sri Ramamurthy v. Batchu Dhanraju held that even if the property in question had vested in the Government, it was not open to the defendants to set up that plea in defence of continuance of their unlawful possession as against the plaintiffs who are proved to be the owners of property at the time of the trespass, at the time of action and even on the date immediately before the notification and who, in the eye of law, should be deemed to be owners in occupation and entitled to continue in possession and enjoyment until dispossessed by the Government. On a consideration of the relevant provisions of the Act the learned Judge held that even if the position of the plaintiffs be equated with that of a mere possessory owner on account of the vesting of the estate by reason of the notification, the plaintiffs in that capacity as well can claim back the property which they were wrongfully deprived of by any person other than the true owner.

62. In A.K Sastrulu v. Uttandimatta Swamuluvaru a Division Bench of this Court consisting of Chandra Reddy C.J, and Gopalakrishna Nair, J., repelled a similar contention and held after considering the provisions of section 3 and the proviso thereto and section 64 of the Estate Abolition Act, as follows:—

“The effect of this suction is that the respondent shall be deemed to be in possession of the lands notwithstanding the temporary dispossession of the lands by the appellants. What then is the result of these two sections?. Could it be posited that notwithstanding these two provisions the appellant could continue in possession of the land which no obtained by trespassing on them?. If the argument of the learned counsel for the appellant is to be accepted, it would amount to this namely: That despite the fiction created by section 64 the appellant should be permitted to continue to be in possession driving the respondent to seek his remedies else where. We are not persuaded that this argument is substantial. If really a person is deemed to be in possession of curtains lands and the Govt. cannot dispossess him of the lands in similar circumstances, that person is surely entitled to evict the trespasser with the aid of the Court.”

63. In coming to this conclusion, the ruling in Bobbili Sriramamurhy v. Batchu Dhan Raju was followed.

64. Reference may next be made to an unreported decision of Satyanarayana Rao, J., in Second Appeal No. 12 of 1964 dated 15-4-1968 in State of Andhra Pradesh v. Mutta Venkata Rajamma in which the learned Judge construing section 3(d) proviso held that it is the imperative duty of the Government to maintain the possession of persons as stated in section 3(d) proviso and that the Government shall not dispossess any person if they consider prima facie that he is entitled to a ryotwari patta, following the decision of this court in A.K Sastrulu v. Uttanndimatt Swamuluvaru . 1964 I. A.L.T 292. The learned Judge held that a suit for possession and profits is maintainable at the instance of a party even if the estate is abolished and without the plaintiff having obtained patta. In the said case the Government was also impleaded as a supplemental defendant in view of the objection taken that the property vested in the Government.

65. I will now refer to two decisions on which the learned counsel for the appellant Sri Veerabhadrayya placed strong reliance in support of his contention. The first one is a recent judgment of this court delivered by Basi Reddy, J., (as he then was) in Gudivadu v. Murugappa Mudali . 1964 2 An. W.R 832.. It was a suit filed for a declaration that the plaintiff is the owner of certain trees and for an injunction restraining the defendants, who had cut away some trees, from cutting the other trees on the land. It was argued that the plaintiff had no right to maintain the suit in view of the fact that he failed to obtain a patta after the abolition of the estate in consequence of which the property stood vested in the State Government. In upholding this contention the learned Judge held that the provisions of Section 3 proviso do not in any way wittle down the absolute vesting the title on the Government or create any title in the party in possession of the property. Further, the learned Judge was not prepared to call in aid the provisions of Section 64 as they related only to land and buildings and not to frees. In view of the foregoing preponderance of authority, we are of the opinion with great respect that the decision of Bast Reddy, J., is not correct. Applying the principles stated above, the person who is in actual enjoyment of the trees as well as the land can always maintain an action against the wrongful acts of mischief committed on his land by strangers by way of cutting the trees, and such a right is undoubtedly based upon his possessory title and it is no defence for the wrong-doer to say that the quantum owner of the trees has no right to protest and that it is only the Government that can raise the objection. We are therefore constrained to over-rule the above decision of Basi Reddy, J., In this connection we cannot avoid observing that none of the previous decisions of this court was brought to the notice of the learned Judge. The second case relied upon by the appellant's learned counsel is the decision of the Supreme Court in Hajisk Subban v. Madhorao . A.I.R 1962 Supreme Court 1230. which arose under the Madhya Pradesh Abolition of Properietory Rights (Estates, Mahals, alienated Lands) Act, 1950. A purchaser of certain property in a revenue sale filed a suit for possession and obtained a decree therein and the said decree was also upheld by the High Court. Before the confirmation of the decree by the High Court, the estate in question was abolished under the provisions of the Madhya Pradesh Act and it was not brought to the notice of the High Court. When the decree holder cannot obtain any rights in the property except in accordance with the provisions of the said Act. This objection was upheld by the Supreme Court. In order to appreciate the decision of the Supreme Court, it is necessary to refer to the relevant sections of the said Madhya Pradesh Act which are as follows:—

Section 3(1): “Save as otherwise provided in this Act, on and from date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate……………shall pass…………and vest in the State for the purposes of the State free of all encumbrances.

(2) After the issue of a notification under Sub-Section (1) no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State………”

66. In view of these specific provisions, it was held by the Supreme Court that the only manner in which a person can acquire rights in property is the one contemplated in sub-section (2) and that the decree of the High Court which was passed after the notified date conferred no right upon the decree-holder therein. There is no provision in the Madras Estates Abolition Act corresponding to section 3(2) of the Madhya Pradesh Act and there is also no provision in the Madhya Pradesh Act corresponding to Section 3 proviso of the Madras Act. There is, therefore no analogy between the scheme of the Madhya Pradesh Act and the Madras Estates Abolition Act. Reliance was placed upon this decision of the Supreme Court in the case already cited namely A.K Sastrulu v. Uttandimatta Swamulu Varu . 1964 I A.L.T 292. where it was held that the provisions of the two Acts are not analogous and that no reliance can be placed upon the said decision for the purpose of construing the provisions of the Madras Estates Abolition Act.

67. For the above reasons, we hold that the plaintiff is entitled to continue the suit even after the estate vested in the Government. The second defendant had no right to remain in possession after August 1947. The plaintiff filed the suit within 12 years thereof for recovery of possession. It may also be noted that after the estate was abolished in 1964, neither the second defendant nor defendants 1, 3 and 4 who claim rights under him applied for any patta under section 11 of the Act claiming to be ryots entitled to a ryotwari patta. The decree of the court below is therefore confirmed and this appeal is accordingly dismissed with costs payable to the plaintiff by the Appellants.