IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 21838 of 1998 Between: 1.B.Ramachandra Reddy, S/o B.Krishna Reddy, R/o Paleru Village, Bangarupalyam Mandal, Chittoor District. 2.B.Narasimha Reddy S/o B.Krishna Reddy, R/o Paleru Village, Bangarupalyam Mandal, Chittoor District. 3.B.Subramanyam Reddy, S/o B.Krishna Reddy, R/o Paleru Village, Bangarupalyam Mandal, Chittoor District. 4.B.Doraswamy Reddy, S/o B.Krishna Reddy, R/o Paleru Village, Bangarupalyam Mandal, Chittoor District. 5.B.Anjenugulu Reddy, S/o B.Krishna Reddy, R/o Paleru Village, Bangarupalyam Mandal, Chittoor District. ..... PETITIONERS AND 1.The Commissioner of Survey Settlements and Land Records, A.P. Hyderabad. 2.The DistrictCollector, Chittoor District. 3.The Mandal Revenue Officer, Bangarupalyam, Chittoor District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the order dt.4-5-98 in CSS LRs Case No.P3/1230/87 on the file of the Commissioner of Survey, Settlements and Land Records, A.P., Hyderabad as illegal, unjust, irregular and not maintainable under law and consequently to restore the order dt.10-2-83 in S.R.No.29/11(a)/81-CTR, Settlement Officer, Nellore. Counsel for the Petitioners: MR.S.V.MUNI REDDY Counsel for the Respondents: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR Writ Petition No.21838 of 1998 ORDER: This writ petition is preferred by the petitioners, who are seeking grant of patta under Section 11(a) of the A.P. (Andhra Area) Abolition of Estates and Conversion into Ryotwari Act, 1948 (for short ‘the Act’) with respect to Ac.0.20 cents of land and are aggrieved by the order of the Director of Settlements and thereafter that of the Commissioner, Survey, Settlements and Land Records, wherein the patta granted to them was set aside by both the authorities. This writ petition is, therefore, filed questioning the order of the Commissioner of Survey, Settlements and Land Records confirming the order of the Director of Settlements. 02. The facts, in brief, are that the petitioners claim that they and prior to them, their forefathers are in possession of Ac.0.80 cents of land, which forms part of Bangarupalyam Zamindar, bearing present Survey No.179/8 of Paleru Revenue village, Chittoor District. The petitioners allege that when their grand father was in possession, which was pre-abolition period, they were granted patta and they continued to be in possession and enjoyment of the entire extent of Ac.0.80 cents. They also allege that during the Settlement operations, the Settlement authorities suo motu granted patta to them to the extent of Ac.0.60 cents and since the patta with respect to balance Ac.0.20 cents was not granted, they had applied to the Settlement Officer for grant of patta. By an order of the Settlement Officer, dated 10.02.1983, ryotwari patta was granted in their favour. But, at the instance of a third party objector, a revision was entertained by the Director of Settlements and allowed the same, against which, the petitioners filed further revision before the Commissioner of Survey, Settlements and Land Records, (the first respondent herein). Under the impugned order, the learned Commissioner in Case No.P3/1230/87, dated 04.05.1998, the said revision was dismissed. Aggrieved thereby, the present writ petition is filed. 03. I have heard the learned counsel for the petitioners and the learned Government Pleader for Revenue appearing for the respondents. 04. As per the contention of the learned counsel for the petitioners, though the Settlement authority has granted patta in their favour, a third party objector was agitating that the said land is in fact a cart track poramboke and as such, the petitioners are not entitled to grant of patta. He submits that at the instance of the petitioners, the Director of Settlement entertained the revision and in the said revision, the third party objector relied upon the judgment of the learned II Additional District Munsif, Chittoor in O.S.No.262 of 1975, which was filed by the objector against the petitioners herein seeking injunction on the ground that the land in question is a cart track poramboke and that the said third party objector has easementary rights to use the same. The said suit was decreed, and the petitioners preferred A.S.No.199 of 1981 on the file of Principal Subordinate Judge, Chittoor. The learned counsel for the petitioners submits that later the appeal was decided in favour of the petitioners which was produced before the learned Commissioner, but the same has not been appreciated by the learned Commissioner. 05. The learned Government Pleader for Revenue appearing for the respondents submits that the Settlement authorities have to decide the claim only on the basis of the records relevant to the Estate and the revenue records etc., and as such, relevancy of the civil suit inter parties ought not have influenced the judgment of the authorities under the Act. 06. I have considered the submissions earnestly. 07. I find from the order of the Director of Settlements that a certified copy of the judgment in O.S.No.262 of 1975 was filed before him, which was heavily relied upon by him with respect to the finding of the civil Court that the land in question, which was suit schedule land, was a cart track poramboke. In fact, the Director of Settlements has recorded the observations and findings of the civil Court and based his order on the basis of the aforesaid findings of the civil Court. The revision of the petitioners, therefore, was primarily dismissed on the basis of the findings reached by the civil Court that the land in question is a cart track poramboke. However, the petitioners preferred an appeal as mentioned above and the learned Principal Subordinate Judge, Chitttoor, through his judgment, dated 28.07.1988, held in paras- 20 and 21 as follows. “20. It is not possible to have any rastha next to the bund since the lands on the north of the bund are 15 to 25 feet lower in level and the land of the appellant is 7 feet lower in level to Chellamalliah channel and so there is no question of carts being taken on such uneven land, since one wheel of the cart would be on the height of 15 feet and the other wheel would be at 7 feet height. There cannot be a relief about something which is non-existence and which is incapable of being enjoyed and there cannot be an easement of right which is incapable of being enjoyed. So the question whether the respondent-plaintiff had been using the path and had perfected his user by prescription would not arise since there is no road or rastha at all. 21. Therefore, the appeal is allowed with costs throughout setting aside the decree and judgment of the learned II Additional District Munsif, Chittoor in O.S.No.262/75 dated 05.09.1980 and the suit of the respondent-plaintiff is dismissed.” 08. The said judgment was produced before the learned Commissioner when the revision was decided, but he has proceeded to observe as follows and has not taken note of the said finding of the appellate Court. “The third and sixth grounds need not detain us because the grant or otherwise of patta U/s 11 (a) is on its own merits and not the orders/decrees of civil courts on prayers for temporary injunction etc.” 09. It is evident that the order of the Director of Settlements is clearly based upon the judgment of the civil Court in the first instance and when the said judgment was reversed on appeal by the appellate Court, the learned Commissioner has not taken note of the findings therein. The existence or otherwise of the cart track fell for consideration before the civil Court in the said proceedings and the judgment of the civil Court would certainly be relevant to consider the said controversy. To my mind, therefore, the order of the learned Commissioner ignoring the findings of the appellate Court is not justified, especially when the Director of Settlements has completely relied upon the said judgment of the civil Court and decided the revision. The order of the Director of Settlements which was in question before the Commissioner was therefore necessarily to be examined in the light of the judgment of the appellate Court produced before him. 10. While it is true that the authorities under the Act, would decide the application for grant of ryotwari patta on the basis of the records and in accordance with law, as mentioned above, and when an effective adjudication of a competent civil Court is available, the same is relevant evidence to be looked into for the purpose of adjudication. I, therefore, feel it appropriate to remit the revision for re-consideration to the learned Commissioner, Survey, Settlements and Land Records (first respondent herein). The learned Commissioner is free to decide the revision in accordance with law, uninfluenced by any of the observations made herein and if he feels that factual verifications are necessary to be made, it shall be open to him to remit the matter further to the authorities subordinate to him, if he deems fit and proper. 11. In the result, the writ petition is allowed and the impugned order is set aside as above. No costs. ____________________ Vilas V.Afzulpurkar, J Dt.27.11.2008. VGB