THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.4257 of 2010 (Dated : 29-11-2010) Between: Vaddiparthi China Ramana Pitapuram, East Godavari District ….Petitioner A n d The District Collector, East Godavari District at Kakinada and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.4257 of 2010 ORDER: This writ petition has been filed by Vaddiparthi China Ramana seeking writ of certiorari calling for the records relating to Endorsement vide Ref.A/612/2006, dated 15-02-2010 issued by the Tahsildar, Kakinada Rural Mandal, East Godavari District in respect of Ac.4.81cents situated in Thimmapuram village, Kakinada Rural Mandal, East Godavari District and quash the same. 2. Background facts, in a nutshell, leading to filing of this writ petition are: - Thimmapuram village was part of Pitapuram Estate in East Godavari District. The then Zamindar of Pitapuram granted patta in favour of one Gopaiah S/o Oleti Venkataiah in respect of Ac.4.81 cents in Sy.No.141 (New Sy.No.174) of Thimmapuram village. The grandfather of the petitioner purchased the said land from Gopaiah under a registered sale deed dated 12.6.1908. The said Gopaiah delivered possession of the land to the grandfather of the petitioner. The land was in occupation of his grand father during his lifetime and thereafter, his father came into possession and after the death of his father, he came into possession of the property. The Estate of Pitapuram was taken over under the provisions of the A.P. (Andhra Area) Estates (Abolition and conversion of Ryotwari) Act, 1948, by issuing a notification under Sections 1 and 3 of the said Act. The petitioner along with others applied to the Assistant Settlement Officer, Kakinada for grant of ryiotwari patta. The Assistant Settlement Officer, Kakinada, by order dated 7.12.1957 granted patta in favour of the petitioner in respect of Ac.4.81 cents. The petitioner was examined as Pw.13 before the Assistant Settlement Officer, Kakinada. The relevant portion of the order passed by the Assistant Settlement Officer needs to be noted and it is thus:- “ It may not be out of place for me here to mention that Ex.P-9 which is a Reg. Sale Deed dated 12.6.1908 in which Pw.13 purchased the land was described as jeroyati wet. This shows that prior to the preparation of the R.O.R Register, these lands were ryoti lands, but it was only during the time of preparation of R.O.R.Register that they were separately registered as tank-beds. The Asst. Manager has nothing to contradict this fact. As already stated above, the petitioners wanted only what they were having during the time of the landholder and the objectors clearly admitted that they have no objection to the grant of ryotwari patta to the petitioners on conditions under which they held these lands during the time of the landholder. The learned Advocate for the Objectors could not show any provision under which I cannot impose a condition before recognizing the possession of the petitioners u/s 11(a) of the M.E. (a & cr) Act, 1948.The learned Advocate for the petitioners contended that they are entitled only for what they were enjoying during the time of the landholder and that a patta can be issued stipulating the condition that they should not raise any wet crop and raise only dry crop during the second crop season. I hold that the petitioners have proved beyond reasonable doubt that the lands ought to have been included in their holding with a condition that they should not raise any wet crop and that they should raise only a dry crop during the second crop season. U/s.11(a) of the M.E. ( A & CR) Act, 1948, I hold that the petitioners are entitled for a patta for the lands described in the schedule subject to the condition that they should not raise any wet crop and raise only a dry crop in the second crop season and that the facilities available to the ayacutdars are not in any way restricted”. 3. One of the applicants before the Assistant Settlement Officer filed revision petition before the Settlement Officer, Machilipatnam assailing the conditions imposed by the Assistant Settlement Officer while granting patta. The Settlement Officer, by order dated 30.8.1958, set aside the conditions imposed by the Assistant Settlement Officer and accordingly, allowed the revision petition. Assailing the order passed by the Settlement Officer, Bezwada Narayana Swamy and 27 others filed appeal before the Director of Settlement, Survey and Land Records, Hyderabad. The appellate authority set aside the orders passed by the Assistant Settlement Officer and the Settlement Officer and allowed the appeal, by order dated 23.3.1959. The relevant portion of the order needs to be noted and it is thus:- “ There is another point which has to be considered. Even granting that the Land Encroachment Act is not applicable it will still be seen that the entire Section in the Estates Land Act refers only to people who have been in unauthorised occupation. If a person is an encroacher and holds the land as against the land-holder the Act provides that after 30 years he cannot be evicted by the use of the Land Encroachment Act. In the present case it will be clearly seen that none of these occupants claim to be encroachers, but, they are people who have been let into possession lawfully by the land-holder for purposes of cultivation of the tank bed for periods of one year and on condition that the cultivation is carried out only after the water has receded. Once this position is conceded, I am unable to see how Section 21 of the Estates Land Act which is applicable to an unauthorised occupant can be applicable also to people who have been properly let into possession by the land-holder by virtue of his right to allow cultivation of tank bed land under certain conditions. Indeed, as seen from the Civil Court judgment which has been filed before the asst. Sett. Officer, the learned Munsif who tried the suit clearly held that the position of the occupant in that case shows clearly that he was a person who was entitled to cultivate the land for a period of one year and was under the agreement bound to vacate the land without notice. No doubt the case referred to is not one involving the present parties. But the facts are clearly identical. All the people who now claimed a patta were let into possession only for period of one year and if at a later stage they were continuing in possession they can be held to be only lessees holding over. The lessee, as I have already pointed out, does not become entitled to a patta under Section 11(a) of the Estates Abolition Act. In any view of the matter, therefore, I am unable to see how the respondents become entitled for the grant of a ryotwari patta under section 11(a). The land is undoubtedly tank bed and not ryoti. The occupants themselves were not given a regular patta under the Estates Land Act, but, were only allowed to remain in possession for periods of one year and permitted to cultivate the land with dry crops after the water had receded. In this view of the matter, it is clear, therefore, that no occupancy rights have accrued to them and no patta can be granted. The orders of both the lower Courts are, therefore, set aside and the present revision petition is allowed. The lands will be registered as part of the Ava tank of Thimmapuram village.” 4. Some of the parties before the Assistant Settlement Officer, Kakinada filed O.S.No.288 of 1988 for declaration of title and for possession and mesne profits and costs. I may make it clear at this juncture that neither the petitioner was a party nor the land claimed by him was the subject matter in the said suit. The suit filed by Vinti Suryakantham and 56 others came to be decreed, by judgment dated 5.10.2001. The issues that fell for consideration in the said suit were:- “ (1) Whether the plaintiffs are entitled for declaration of title as prayed for ? (2) Whether the plaintiffs are entitled to evict the defendants and to deliver vacant possession of the schedule lands as prayed for ? (3) Whether the civil Court has no jurisdiction to scrutinize the proceedings of the Settlement Authorities ? (4) Whether the suit is bad or misjoinder of cause of action ? (5) Whether the plaint schedule is a part of area Tank poramboke as pleaded in the written statement filed by D-1 ? (6) Whether the plaintiffs’ suit is barred by time ? (7) To what relief ? Additional issues also fell for consideration and they are :- (1) Whether the plaint schedule properties are Ryoti lands in the Pithapuram estate and surveyed as Ryoti lands in the records of rights register ? (2) Whether Ava tank of Timmapuram (v) was vested with the Government due to abolition of estate ? (3) Whether the conditional patta issued by the Estate Hold only to show pyru crop will come within the purview of the amendment of sec.20(a) and (b) of Estate Land Act,1908 ?” 5. The learned II Additional Senior Civil Judge, on full-fledged trial, came to the conclusion that the suit lands are not part of tank bed lands that they are ryoti lands and hence the plaintiffs are entitled for patta, by judgment dated 5th October 2009. The unsuccessful party in the suit carried the matter in appeal being A.S.No.169 of 1981, on the file of I Additional District Judge, Rajahmundry. Harijana Karmika Sangham, Thimmapuram also filed an appeal being A.S.No.161 of 1981 on the file of the I Additional District Judge, Rajahmundry. Both the appeals came to be disposed of by common judgment holding that the suit properties are not tank-bed lands; that a suit to declare title of the plaintiffs cannot be entertained by a civil Court in view of the decision in M.J.SYAMALA RAO vs. RADHAKANTHASWAI VARU [1984(1) APLJ 113] and however, the civil court has jurisdiction to restore possession of the plaintiffs who were forcibly dispossessed by the 2nd defendant. The State of A.P filed second appeal being S.A.No.4 of 1986 and whereas the 2nd defendant- Sangham in whose favour the Government have granted lease treating the suit land as poramboke filed S.A.No.82 of 1986. The plaintiffs also filed cross objections in S.A.No.82 of 1986 challenging the decision of the lower appellate Court with regard to disallowing the relief of declaration of their title. Both the appeals and cross objections were disposed of by judgment dated 10.12.1990, vide State of A.P v. Veeramreddi Ramajan and others[1]. The appeals ended in dismissal and cross objections filed by the plaintiff came to be allowed. The relevant portion of the common judgment passed in the above-referred two appeals and the cross objections reads as hereunder:- “ Both the courts below have held that the orders of the Director of Settlements and the decisions in the writ petitions do not bind the plaintiffs as no notices were issued to the plaintiffs and that they were not parties to those proceedings. Hence the principle of res-judicata cannot be invoked in this case. Both the Courts below on a consideration of the voluminous oral and documentary evidence adduced in the case have concurrently found that the suit lands are not tank-bed lands but they constitute ryoti lands and that the plaintiffs and their predecessors were in possession of the suit lands from 1923 to 1976 till they were forcibly dispossessed. From the above discussion, and following the decision of the Supreme Court in STATE OF T.N’s [ AIR 1986 SC 794], I hold that the civil court has jurisdiction to decide the question of title and the conclusion arrived at by the learned Additional District Judge that the declaration of title cannot be granted since the civil Court has no jurisdiction is not correct. In the result, both the appeals are dismissed and the cross-objections filed by the plaintiffs-respondents in Second Appeal No.82 of 1986 are allowed confirming the decree of the trial Court regarding declaration of title in favour of the plaintiffs. No costs.” 6. The petitioner filed application before the Tahsildar, Kakinada Rural Mandal for issuance of patta passbooks and title deeds in respect of Ac.4.81 cents comprising Sy.No.141. The Tahsildar, Kakinada Rural Mandal-2nd respondent issued endorsements under proceedings Ref.A.612/2007 dated 10.10.2007 and 3.11.2007 stating that the land covered under Sy.No.174 of Thimmapuram village is recorded as “Ava Tank Poramboke” in revenue records, and therefore, the request of the petitioner for issuance of pattadar passbook cannot be considered. The petitioner filed W.P.No.26020 of 2007 assailing the endorsements dated 10.10.2007 and 3.11.2007 issued by the 2nd respondent. The said writ petition came to be disposed of, by an order dated 17.6.2009 setting aside the endorsements and remanding the matter back to the 2nd respondent for consideration afresh. The relevant portion of the order dated 17.6.2009 reads as hereunder:- “ A thorough perusal of the endorsements dated 10.10.2008 and 03.11.2007 shows that the decision of the 2nd respondent is not a final decision taken after a detailed adjudication by considering the material produced by the petitioner as well as the pleas taken by him, but in view of certain circumstances, particularly in view of pendency of W.P.No.12946 of 2007 filed by the 3rd respondent Society and the interim orders passed therein, the claim of the petitioner was not considered, apart from the alleged reason that the subject land is a Government Tank Poramboke. However, it is brought to the notice of the Court that the said W.P.no.12946 of 2007 was disposed of by this Court on 04.03.2009, leaving it open to the petitioners therein to avail the remedy available before the Government or the Chief Commissioner of Land Administration against the order dated 03.05.2007, whereunder the land was resumed to the Government, and further it was directed that the respondents therein shall not alienate or assign the land in question therein nor shall they permit it to be put to other use. Therefore, it must be deemed that now there is no embargo on the 2nd respondent to decide the matter afresh on merits. In view of the above, the endorsements dated 10.10.2007 and 03.11.2007 are set aside and the matter is remanded to the 2nd respondent for consideration afresh as to issuance of pattadar passbook and title deed in respect of the subject land to the petitioner, in accordance with law, after considering all the objections raised by the unofficial respondents and after hearing all the parties concerned. This exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order”. 7. The petitioner made a detailed representation dated 23.7.2007 along with all documents. The 2nd respondent issued proceedings in Ref.No.A/612/2007 dated 25.8.2009 rejecting the request of the petitioner for issuance of patta passbook and title deeds. The petitioner challenged the endorsements by filing Writ Petition No.24724 of 2009. The said writ petition came to be disposed of directing the 2nd respondent to reconsider the matter in the light of the judgment dated 10.12.2009 rendered in S.A.No.4 and 82 of 1986 and cross objections and pass appropriate orders. The 2nd respondent re-examined the material brought on record and issued endorsement dated 15.2.2010. The relevant portion of the endorsement needs to be noted and it is thus:- “ It is observed that there is no connection of the present writ petitioner’s contention and documentary proof and fact of the case with the parties in S.As.4 and 82/86 (defendants). The schedule lands covered in S.As are in possession and enjoyment and their title was confirmed by civil courts. But the present petitioner has no title. He simply showing rough patta which was disallowed later by Director of Settlements as confirmed by Commissioner. The petitioner kept silent for more than three decades and did not approach civil Court for declaration of title as he has no valid patta to prove his title. There is no circumstance which strike a similarity with the above S.As and the request of the petitioner for grant of Pattadar Pass Book and Title Deed is ruled out as he has no title and possession”. 8. The said endorsement is assailed in this writ petition. For better understanding of the grievance of the petitioner, paras 12 and 13 of the affidavit filed in support of the writ petition need to be noted and they are thus:- “12. It is submitted that effect and purport of the orders of the Director of Settlement in R.P.No.50/58, dated 23-8- 1959 was categorically considered by this Hon’ble Court in judgment made in S.A.No.4 & 82/86, dated10-112- 1990 reported in 1991(1) LS 257 in which the Hon’ble Court categorically confirmed the view that the persons who are not parties to the Director of Settlement order dated 23-8-1959 do not bind the persons who are not parties to the said order, as such, upheld the rights of those persons who are not parties to the said order thereby confirming the rights in favour of such patta holders similar to the petitioner herein. The said judgment is being filed herewith. In such view of the matter, the action of the 2nd respondent in rejecting the request of the petitioner for grant of pattadar passbook and title deeds in respect of the subject land on the ground that the Director of Settlement has declared that the subject land is Ava Tank Poramboke though the petitioner is not party to the said proceedings is highly illegal and arbitrary. 13. It is submitted that in fact, the persons who were granted patta along with the petitioner in pursuance of the orders of the Assistant settlement officer, Kakinada in Proceedings S.r.II (A)186/56, dated 7-12-1957 have also filed civil suit bearing O.S.No.288/1988 before the II Addl. Senior Civil Judge, Kakinada seeking declaration against the State as well as some other encroachers and in the said suit, a detailed judgment was rendered vide Judgment and Decree dated 5-10- 2001 in which the categorical findings were given that the land in question is a ryoti land and further it was declared that it is not Government land. The effect of the orders issued by the Director of Settlement which has been relied upon by the respondents herein was also considered in the said judgment. A specific issue was also framed therein whether the land is Tank Proamboke land or not and the said suit was decreed with categorical findings that the entire extent of the land is not a Government land. For better appreciation, a copy of the said judgment in the said suit is also being filed herewith. It is submitted that though the petitioner is not party to the said suit, However, as the land of the petitioner is also situated adjacent to the land of those persons who have filed the suit also due to the reason that the petitioner and those plaintiffs in the said suit were also issued with orders under 11A of the Estate Abolition Act by the Assistant Settlement Officer. The said judgment is relevant in this case. More so in view of the fact that the stand taken by the District Collector that the entire extent is Tank Poramboke land was rejected. Therefore, the stand taken by the 2nd respondent for rejecting the request of the petitioner vide the impugned proceedings is illegal and therefore, the impugned orders issued by the respondents are liable to be set aside”. 9. The Tahsildar, Kakinada Rural Mandal-2nd respondent has filed counter affidavit. The counter affidavit, in brief, is:- The village Timmapuram is an estate village of Pithapuram Estate. It has been taken over by the Government in the year 1950 under the provisions of Estate Abolition Act, 1948. During the settlement operations, the land in Sy.Nos.118, 119 etc., measuring Ac.294.00 was classified as Ava tank poramboke. The land in Sy.No.174 measuring Ac.4.81 cents, which has been claimed by the petitioner forms part of the total extent of Ava Tank Poramboke. The registered Ayacut under the tank was originally 700 acres and after excavation of Ramanayyapeta irrigation channel, an extent of Ac.444.00 was transferred to the said channel leaving an extent of ac.256.00 to be irrigated with water of `Ava tank’. Prior to survey and settlement operations, major extent of ava tank used to be under occupation of several ryots who were said to be inducted by the landholders for cultivation of second(dry) crops during second crop season only. 10. The Assistant Settlement Officer, by order dated 7.12.1957 held that the ryots are entitled for patta subject to the condition that they should not raise any wet crops and should raise only dry crop in the 2nd crop season. On appeal, the Director and Settlement Officer, set aside the order passed by the Asst. Settlement Officer. After abolition of estates, people belonging to weaker sections of Thimmapuram, Achampeta villages sought for permission to cultivate the lands. Various Sanghams representing the group of weaker sections have been granted permission to cultivate lands on lease. Some illegal transactions took place in respect of the said leased lands. Thereupon, the Joint Collector, East Godavari conducted enquiry and issued proceedings cancelling the lease granted by the Tahsildar, Kakinada to the three societies, namely, Thimmapuram Harizana Vyavasaya Karmika Sangam, Atchampeta Sannakaru Vyavasaya Karmika Sangam and Thimmapuram Sannakar Vyavasaya Karmika Sangam. Aggrieved by the cancellation of lease, the members of the Sangham filed W.P.No.12946 of 2007, wherein interim order has been passed restraining the respondents not to alienate or assign the lands in question. In the meanwhile, the present petitioner Vaddiparthi China Ramanna filed writ petition questioning the endorsements dated 10.10.2007 and 03.11.2007. The writ petition filed by the petitioner came to be allowed remanding the matter for fresh consideration. The land in question is classified as Government Poramboke (Ava Tank). A direction has been issued in W.P.No.15595 of 2006 dated 12.2.2007 to protect/safeguard all tanks in the state. In O.S.No.288 of 1988, the petitioner herein is not a party. The land claimed by the petitioner is not the subject matter in O.S.No.288 of 1988. Therefore, the petitioner cannot claim any benefit of the judgment passed in O.S.No.288 of 1988. For better appreciation, I may refer para 7 of the counter, which reads as hereunder:- “ In reply to para 10 to 12, the petitioner requests for grant of pattadar pass book. The main criteria for grant of pattadar passbook is the ownership and enjoyment/possession. In this case that the ownership is decided against the petitioner in enquiries and the land is in the possession and custody of the Government. Hence grant of pattadar passbook cannot be considered. In reply to para 13, it is submitted that in O.S.No.288/88 the petitioner is not a party. The lands are also different. The schedule lands covered in S.As are in possession and enjoyment and their title was confirmed by civil Courts. But the present petitioner has not title. He is simply showing rough patta which was disallowed later by Director of Settlements as confirmed by Commissioner. The petitioner kept silent for more than three decades and did not approach civil Court for declaration of title as he has no valid patta to prove his title. I submit that the whole claim of the petitioner in the present writ petition is that in O.S.No.288 of 1988 title of the petitioners therein were declared in respect of the land, which is also part of the present ava tank. It is also stated by the petitioner that in the second appeal this Hon’ble High Court upheld the title of the private persons and disallowed the claim of the Government that it is a government land. It is respectfully submitted that the petitioner in the present writ petition is not a party to the said proceedings in the second appeal and therefore, there is no title declaration in favour of the writ petitioner herein. The further claim of the petitioner is for issuance of pattadar passbook and title deed in