THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos. 10574 of 1994 & 3558 OF 2003 COMMON ORDER : Both these writ petitions are directed against the award passed by the Estates Abolition Tribunal, Vizianagaram, in renumbered TA Nos. 6 of 1986 and 7 of 1986 on 21.6.1993. TA No. 6 of 1986 has been preferred by the State while TA No. 7 of 1986 has been preferred by the original writ petitioner in WP No. 10574 of 1994 Sri Tirumareddy Tirupati. Both these appeals were directed against the orders passed by the Settlement Officer, Visakhapatnam, on 7.12.1972, upholding the claim for grant of a patta in favour of the original 4th respondent herein, Sri Raja Lakshminarasimha Sanyasi Raju. For convenience sake, the contesting parties are referred to as Sri Sanyasi Raju (original claimant/respondent No.4) and Sri Tirupathi (the original appellant/writ petitioner). Sri Sanyasi Raju appears to have instituted a civil suit OS No. 267 of 1955 on the file of the court of the Principal District Munsif, Rajam for recovery of possession of the plaint schedule land from Sri Tirupathi and also for damages for it’s use and occupation contending that the said property is his private property. The said suit OS No. 257 of 1955 was dismissed on 31.12.1955 holding that the land is not private land but is forming part of Salur estate. Aggrieved by the said judgment and decree, the original claimant preferred an appeal in AS No. 330 of 1956 on the file of the court of the Addl. Subordinate Judge, Srikakulam. The Sub- Court also held that the suit schedule land is Zirayithi land under Patta No. 14 and confirmed that the same would form part of Salur Estate, which vested in the government in terms of Section 3 of the Estates Abolition Act, Act 26 of 1948. At that stage, the original claimant filed a petition before the Settlement Officer, Visakhapatnam claiming patta in terms of Section 15 of Act 26 of 1948, in respect of 0.42 cts of land forming part of Sy. No. 159/2 part and 167/part of Salur. The original appellant/petitioner in WP No. 10574 of 1994 also filed a claim petition for grant of ryotwari patta under Section 11 of Act 26 of 1948. The Settlement Officer granted patta on 7.2.1972 in favour of the original claimant/respondent No.4. Calling in question the validity of this order, the original appellant preferred an appeal in TA No. 11 of 1974 before the Estates Abolition Tribunal, Srikakulam. The Tahsildar, Salur, representing the State also preferred an appeal in TA No. 27 of 1973. The Estates Abolition Tribunal dismissed both these appeals. Then the original petitioner preferred WP No. 5403 of 1977 while Tahsildar, Salur filed WP No. 3024 of 1977. Both these writ petitions have been heard together by this court and this court allowed the writ petitions and set aside the orders passed by the Estates Abolition Tribunal and remanded the matter back for fresh consideration. After considering the matter afresh, the Estates Abolition Tribunal by its order dated 28.9.1979 held that the judgment rendered by the civil court in OS No. 257 of 1955 operates as res judicata inasmuch as the civil court held the suit schedule land as forming part of Salur estate, but not private land of the original claimant. That gave rise to WP No. 7168 of 1979 instituted by the original claimant/respondent No. 4 herein. By judgment dated 30.12.1985, the said writ petition is allowed and the order passed by the Estate Abolition Tribunal on 28.9.1979 in TA Nos. 27 of 1973 and 11 of 1974 is set aside with a direction to pass orders afresh after considering the additional evidence in Exs.R1 to R12. Thereafter the Tribunal renumbered the cases as noted supra. In paragraph (8) of the judgment rendered in WP No. 7168 of 1979, this court specifically considered whether the Estates Abolition Tribunal had the power to go into the question relating to the res judicata under Section 64-A(2) of the Estates Abolition Act, after matter was remanded back by this court pursuant to the judgment rendered in WP Nos. 3024 and 5403 of 1977 dated 18.7.1978 and the said question was answered in the following manner: “ 8. On the aforesaid facts the question that calls for consideration is whether the Estates Abolition Tribunal had the power to go into the question relating to res judicata under Section 64-A(2) of the Act, after the matter was remanded back by this court pursuant to its judgment in WP Nos. 3024 and 5403 of 1977, dated 18.7.1978. There is force in the contention that Section 64-A(2) of the Act constituted a statutory bar in view of the judgment of the District Munsif in O.S.No.257/55 and affirmed by the Subordinate Judge in A.S.No.330/56. This proposition is directly supported by two judgments of this court on which learned counsel placed reliance supra. The fact however remains that this question regarding S.64-A(2) of the Act constituting res judicata was considered and decided by the Estates Abolition Tribunal when it first heard the appeal filed by respondents Nos.2 and 4. In the writ petitions Nos. 3023 and 5403/77 filed by respondents 2 and 4 the decision of the Tribunal on the question of res judicata was not challenged before this Court. On the contrary, before this court it was clearly conceded that the judgments of the civil court might not constitute res judicata, but the judgments ought to be considered by the Tribunal for the limited purpose of determining the character of the land. It was clearly observed in the order dated : 18.7.78 disposing of the two writ petitions that the tribunal held that the judgments of the civil court did not operate as res judicata and that finding was not questioned in the writ petitions. This court had therefore occasion only to consider the grievance of the respondents 2 and 4 that the additional evidence consisting of Exs.R-1 to R-12 was omitted to be considered by the Tribunal and for that purpose specifically remanded the matter back to the Tribunal for consideration. In these circumstances, it is difficult to accept the contention of the learned counsel, Sri Raghuram, that the Tribunal was entitled once again to go into the question of res judicata while disposing of afresh the appeals filed by respondents Nos.2 and 4 ……………………………… 9. Applying the above principles it will be seen that at an earlier stage of the proceeding during the course of the appeal before the Tribunal the question regarding res judicata was agitated and was decided by the court against respondents Nos.2 and 4. The subsequent proceedings in the High Court as well as the remand by the High Court to the Estates Abolition Tribunal are different stages in the same litigation. Therefore, the principles of res judicata applied between different stages in the same litigation and the Tribunal having at an earlier stage decided the question regarding res judicata cannot allow respondents Nos.2 and 4 to reagitate the matter again during the course of the remand proceedings. To the extent that the Tribunal decided earlier the question regarding res judicata without being challenged before this Court in the writ petitions filed by respondents Nos.2 and 4, it must be held that the decision of the Tribunal had become final and the Tribunal to which the case went back by way of remand cannot reconsider the matter. 10. In view of the above legal position, it seems to me that the Tribunal was in error in allowing the appeals filed by respondents Nos.2 and 4 solely in the ground that the decision of the District Munsif in O.S.No.257/55 and affirmed by the Subordinate Judge in A.S.No.336/56 constituted res judicata under S.64-A(2) of the Act.” In view of the above finding, this court felt that the Tribunal was only required to consider the material produced by the original appellant/the writ petitioner by way of Exs.R1 to R12 and decide the question afresh regarding the character of the land in respect of which patta was granted to the petitioner. In that process of determining the nature of the land, it was made clear that the Tribunal can consider the earlier decision of the District Munsif as well as the Subordinate Judge, referred to supra with regard to the character of the land. Thus, after this court has remanded the matter for fresh consideration pursuant to the judgment rendered in WP No. 7168 of 1979, the Tribunal dismissed the appeals preferred by the State as well as the writ petitioner in WP No.10574 of 1994 by its order dated 21.6.1993. Challenging the legality and validity of this order dated 21.6.1993, the present writ petitions have been instituted. It is contended that the Tribunal was required to examine the judgments rendered by the civil court in OS No. 267 of 1955 as confirmed in appeal AS No. 356 of 1956, as was specifically directed by this court and without in any manner adverting to this material the Estates Abolition Tribunal has tersely concluded the entire issue with reference to Exs.R1 to R12. Learned counsel for the petitioner would therefore contend that the judgments rendered by the civil court are entitled for a great weight, but unfortunately the Tribunal omitted the same from consideration totally. It is appropriate to notice how the Tribunal considered the entire matter. In paragraph (5) of the order, the Tribunal has considered the material produced by the original claimant/respondent No.4 in the form of Exs.P1 to P12. The Tribunal found that it is the grandfather of the original claimant/respondent No. 4 who purchased the land which has come to be called as `Bhoja Raju Thota’ along with some other extents of land from Sri Venkata Bhoja Raju through a registered sale deed of July 1868 and this document is marked as Ex.P1 and that the recitals of this document do not in any manner indicate that the land purchased is forming part of Salur Estate. Thus, the Tribunal has noticed that Ex.P1 – Sale deed of July 1868 formed the foundation for the claim of the original claimant. Ex.P2 is an order passed by the grandfather of the original claimant on 19.7.1907 for sale of usufruct of the scheduled land. Ex.P3 is dated 27.7.1907 which indicates the extents of sale of usufruct by the grand father of the original claimant. To the same effect are Exs.P3 and P4. Ex.P6 is a plan drawn on 24.4.1929 of Bhoja Raju Thota dividing it into plots and leasing them out for rent. Ex.P5 dated 24.4.1929 is a list of lessees in respect of different plots forming part of Bhoja Raju Thota. Thus, Exs.P5 and P6 which are of the year 1929 reflect that the garden has withered away by then and the land was used for non agricultural purposes by dividing it into small plots and leased them out on rent to different people. Pursuant to Ex.P5, a series of lease deeds commencing from the year 1929 to 1930 which were executed have been exhibited. Ex.P8 comprises of lease deeds in respect of the scheduled land executed by the lessees during 1955, 1957 and 1958. Ex.P9 is a notice issued to the grandfather of the original claimant/ respondent No.4 by the Commissioner of Salur Municipality on 28.6.1961 demanding him to arrange for payment of property tax in respect of the scheduled land to Salur Municipality. From this Ex.P9, it can be gathered that the grandfather of the original claimant/respondent No.4 leased out the scheduled land in favour of several others and he was actually in possession of the said land. Ex.P10 is a notice issued under Section 3(O) of Madras Act 26 of 1948 on 6.2.1959. Thus, the documentary evidence Exs.P1 to P12 clearly demonstrated that the suit schedule land forming part of Bhoja Raju Thota was purchased by the grandfather of the original claimant/respondent No.4 and that it was private property possessed by him even prior to the period when the civil court decided the civil suit OS No. 257 of 1955. As is required by the order passed by this court in WP No. 7168 of 1979, the Tribunal also examined the entire material evidence produced by the original appellant / writ petitioner comprising of R1 to R12. Ex.R1 which is filed as `Mutchilaka’ in the name of Poorna Appadu, was found not to disclose the details of the land concerning which the said deed was executed. Exs.R2 and R3 are the land cess account of Salur Zamindar paying ground rent for patta No.14. These documents are also found not containing any details regarding the land and further the name of the writ petitioner in WP No.10574 of 1994 the original appellant does not figure therein. Exs.R4 to R6 are the municipal property receipts evidencing payment of property tax by the original writ petitioner Sri Thimma Reddy Tirupati. Exs.R4 to R6 are obtained from the local Salur Municipality on one day i.e., 24.12.1973. Ex.R7 is a proceeding of the Board of Revenue dated 12.9.1952 as to how to calculate and levy ground rent for the land situated within the municipal areas. It is a general decision and not specifically concerning the land which is the subject matter of the lis. Exs.R8 to R12 are the decrees and judgments of different courts relating to certain disputes which arose between the original writ petitioner and Sri Sanyasi Raju, concerning certain parcels of land, the title to which was not determined. There is no correlation between the land in dispute and these documents. Thus, after considering the material brought before the Tribunal in the form of Exs.R1 to R12, dismissed the claim made by the original appellant / writ petitioner and upheld the claim for patta of the original claimant / respondent No.4. It will be relevant right at this stage to notice the development of legal regime relating to rights in land. Initially by Madras Act VIII of 1865 the procedure adopted by the landholders, as defined therein, for recovery of rents from their tenants was set out in detail. This piece of legislation is merely procedural. It has not declared either substantive or relative rights of the landholders and their tenants or ryots. Such rights have not been defined by any enactment and hence the Madras Estates Lands Act 1908 (Act I of 1908) has been enacted declaring the law relating to holding of land in estates. By virtue of Andhra Pradesh Laws (Amendment of short titles) Act, IX of 1961, this Act came to rechristened as Andhra Pradesh (Andhra Area) Estates Land Act, 1908. Section 3(2) of the said Act defined the expression `estate’. The expression landholder has been defined in Section 3(5) as a person owning an estate or part thereof including every person entitled to collect rents of the whole or any portion of the Estate. Section 3(10) of the Act defined the expression `private land’ as meaning the domain or home-farm land of the landholder which is proved to have been cultivated as private land of the landholder himself by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years, immediately before the commencement of the said Act. Section 3(11) of the Act defines the expression `rent’ as meaning whatever is lawfully payable in money or in kind or in both to a landholder by a ryot for the use or occupation of land for the purpose of agriculture. Similarly, the expression `ryot’ was defined in Section 3(15) as meaning a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. Most important for our enquiry is the expression `ryoti land’ as defined in Section 3(16) as meaning cultivable land in an estate “other than private land” which does not include beds and bunds of tanks and of supply, drainage, surplus or irrigation channels, threshing-floor, cattle-stands, village-sites and other lands situated in any estate which are set apart for the common use of the villagers and lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of the said Act. This Act has received the assent of the Governor on 25th March 1908 and was first published in St. George Gazette, dated 30th June, 1908. Section 4 of this Act recognises the right of the landholder to collect rent in respect of ryoti land in the occupation of a ryot. Section 5, hence, recognised rent payable to be a first charge upon the holding and also the produce generated therefrom. Section 6 has recognised a valuable right in the hands of a ryot. Sub-section (1) of Section 6 of this Act recognises that every ryot who is in possession as on the date when the Act came into force or who shall thereafter be inducted by a landholder into possession of ryoti land situated in the estate of such landholder, shall have a permanent right of occupancy in his holding. Thus, for the first time a right to permanently occupy the land in his holding subject of course to the liability to pay rent in terms of Section 4 of the Act, has been conferred upon a ryot. This is the salient feature of this enactment. Another important feature of this legislation deals with the landholder’s rights in private lands. Chapter XII of this Act dealt with the issues relating thereto commencing with Section 181. Section 181 recognises that the land holder has the liberty to convert his private land into ryoti land and confered occupancy right in the land so converted. Therefore, the Estates Land Act, 1908, is one of the foremost legislations which recognise the rights for permanent occupancy of the ryots over the land in their position as also the rights of the land holder over his private land. Finding that the zamindari system perpetuated an assessment which has no relation to the productive capacity of the land and also finding that the zamindari system has resulted in loss of contact between the government and the actual cultivator of the land, government was convinced that the zamindari system should be abolished. For achieving this objective, the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (henceforth called as ‘the Abolition Act’), has been ushered in. it received the assent of the Governor – General on 02-04-1949 and was published in Fort St.George Gazette on 19-04-1949. As per Section 3, the Abolition Act applied to all estates as defined in clause (2) of Section 3 of the Estates Land Act. By virtue of this Abolition Act, the entire estate other than non royati lands, waste lands, pasture lands, Lanka lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries all stood transferred to the government. In terms of Section 4, Government was required to appoint a Director of Settlement to carry out survey and settlement operations in estates and to introduce ryotwari settlement therein. As per Section 5, Government was also required to appoint Settlement Officers to carry out the functions and duties under the Act. Under Section 11 of this Act, every ryot in an estate shall, with effect on and from the notified date was entitled to a ryotwari patta in respect of ryoti lands which immediately before the notified date were included or ought to have been included in his holding. Similarly, under Section 12 of the said Act, in case of a zamindari estate, the landholder shall with effect on and from the notified date be entitled to a ryotwari patta in respect of lands which immediately before the notified date belong to him as private land, within the meaning of the Section 3 Clause 10(a) of the Estates Land Act or those which stood recorded as private lands in the record prepared under the provisions of Chapter XI or XII of the Estates Land Act, which lands have not been subsequently converted into ryoti lands. It is therefore significant to notice that in terms of Section 11, a ryot is entitled to be granted a ryotwari patta in respect of ryoti lands whereas a landholder is entitled to a ryotwari patta in respect of only such private lands held by him. Section 15 of the Abolition Act conferred power on the Settlement Officer to examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta and then decide the claim. It is therefore essentially required of the Settlement Officer to take into account and consideration the nature and history of the land and only in case he is satisfied that the land is a private land, held by the land holder, so recognised in terms of the Estates Land Act, then alone a ryotwari patta can be granted in favour of the landholder. If on the other hand, the land is a ryotwari land and not a private land, then the land holder cannot be granted a patta. But, it is the ryot in possession of such land who should be granted a patta in respect of such a ryotwari land. Salur Estate was taken over in terms of the provisions of the Estates Abolition Act, 1948 on 12th January, 1951. It is therefore for the claimant before the Settlement Officer Sri Sanyasi Raju, to establish that the land over which he has sought for a patta is his private land and it stood so recorded as private land in terms of either Chapter XI or XII of the Estates Land Act, 1908. In this context, significance need to be attached to the fact that Sri Sanyasi Raju has filed civil suit OS No.267 of 1955 claiming it as private land and hence sought for eviction of Sri Tirupathi, the petitioner in WP No.10574 of 1994 and the said suit was dismissed which decree was affirmed in appeal as well. It is therefore essentially required of the Tribunal to determine as to whether the Settlement Officer has correctly determined that the land in question is a private land in terms of the Estates Land Act, 1908 or not. That is the fundamental requirement before the claim for grant of ryotwari patta of a landholder in terms of Section 12 read with Section 15 of the Abolition Act is upheld by the Settlement Officer. If the finding of the Settlement Officer is to be otherwise viz., that the land in question is not private land of the land holder in accordance with the Estates Land Act, 1908, but the land is a ryotwari land, then it is the ryot who is liable to be granted a patta over the said land in terms of Section 11, but not the landholder. If it is a ryotwari land, but not a private land of the landholder, the claim of Sri Tirupathi the petitioner in WP No.10574 of 1994 for grant of ryotwari patta ought to have been upheld. There is no denying the fact that the grandfather of the original claimant Sri Sanyasi Raju has purchased “Bhojaraju Thota” along with other lands by way of a registered sale deed in July, 1868, which document has been exhibited as Ex.P1 before the Estates Abolition Tribunal. That will not tilt the balance in favour of the respondent automatically, for securing a ryotwari patta in terms of Section 12 of the Abolition Act. Unfortunately, the Tribunal has not made any attempt to examine as to whether the Settlement Officer is right in recording a finding of fact that the land is a private land of the landholder or not. The Settlement Officer has to rest the basis for his conclusion on the fact that the said land has been recorded as private land in the record of private lands in terms of either Chapters XI or XII of the Estates Land Act, 1908. Otherwise, on