THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT APPEAL No. 2106 OF 2003 DATED: 11-2010 Between: The Mandal Revenue Officer, Pedagantyada Mandal, Visakhapatnam District ..... APPELLANT AND U.A.N. Raju .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT APPEAL No. 2106 OF 2003 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) This appeal under Clause 15 of the Letters Patent is directed against the order of the learned single Judge in Writ Petition No. 13119 of 1993 dated 20-12-1995, wherein and whereunder the writ petition filed by the respondent – writ petitioner was allowed quashing the proceedings of the appellant – Mandal Revenue Officer, Pedagantyada, Visakhapatnam District in R.C No. 277/89/H.A, dated 28-06-1993 as being barred by the principle of res judicata. By the impugned proceedings which is the subject matter of the writ petition, the respondent was ordered to be evicted from the land, in all, admeasuring Acs.10.00 covered by R.S Nos. 64/17 and 64/18 of Pedagantyada Village, Visakhapatnam, which is carved out from R.S No. 64/1 and correlated to old Survey No. 83/B of Visakhapatnam District as the transfer of the land is in violation of the provisions of the Andhra Pradesh Assigned Lands (Prohibition and Transfer) Act, 1977 (for short ‘Act 9 of 1977’). The facts which gave rise to filing of the writ petition, briefly stated are as under: The respondent – writ petitioner purchased the lands on 26-12-1970 under a registered sale deed from one Palivela Ramudu and Palivela Nookaraju. Pedagantyada was a Zamindari village of Vizianagaram Zamin Estate taken over under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short ‘the Estates Abolition Act’) on 07-09-1949. Old Survey No. 83 correlated to R.S No. 64 which was recorded as banjar land (Assessed Waste Dry – AWD) with a total extent of Acs.79.30 cents. After survey and settlement, sub-divisions 1 to 16 were carved out of the said survey number. While in sub-divisions 2 to 16 ryotwari pattas were granted, an extent of Acs.43.23 cents in R.S No. 64/1 remained as AWD. According to the writ petitioner, in old Survey No. 83/B Nookaraju was entitled to Acs.5.00 of land and Ramudu was entitled to Acs.6.00 of land as they were in possession of the said extent of land prior to 1935 and were also given pattas after re-survey conducted by the revenue authorities which was recorded in the settlement register. Recording in the settlement register was effected in 1955 and 1956 as patta Nos.938 and 939. Whereas, according to the revenue officials, during the crash programme of assignment in the year 1961, Sri Palivela Ramudu and Sri Palivela Nookaraju were allotted land in an extent of Acs.5.00 each in R.S No. 64/1 along with several others. After sub-division D-form pattas were granted only in the year 1969 to all the landless poor persons along with the above persons by creating sub-divisions 17 to 35 and the lands assigned to the above two persons are 64/17 and 64/18. Pursuant to the D-form pattas, the assignees have not brought the land under cultivation and the land in Survey No. 64 along with several other adjoining state and private lands were requisitioned by the Steel Plant Land Acquisition Authorities for the purpose of rehabilitating the displaced persons. The said assignments along with the other state lands were transferred to the steel plant rehabilitation purpose by the Collector’s proceedings RC.No.15063/80/SO/dt. 21/8/80 after publishing a notice calling for objections on 04-03-1980 and in the year 1981, an extent of Ac.0.27 cents of land in Survey No.64/17 was also transferred to R&B Department for widening of the adjoining road. The Steel Plant Land Acquisition Authorities did not utilize the land for their purpose and in the year 1988, they transferred the lands along with the adjoining acquired lands to Visakhapatnam Urban Development Authority (VUDA) for construction of a housing colony. At that stage, the G.P.A holder of the respondent – writ petitioner filed Writ Petition No. 4287 of 1989 in this Court alleging that the Government is interfering with his possession over an extent of Acs.10.00 of land in Pedagantyada Village, Pedagantyada Mandal, Visakhapatnam and to declare that he is entitled to continue in possession without any obstruction whatsoever from the respondents or their subordinates and he cannot be dispossessed without following the due process of law and if at all he has to be evicted, compensation has to be paid to him. On contest made by the revenue officials contending that the land is recorded as AWD and pattas were granted in favour of the vendors of the petitioner pursuant to the application made in 1969, the said writ petition was allowed on 25-10- 1991 holding that the documents filed by the writ petitioner show that even in the year 1942 Palivela Ramudu and Nookaraju were cultivating the land under the Vizianagaram Estate, that even after the estate was abolished in the year 1949 they were cultivating the lands. The revenue officials have not filed any record to show that D form pattas were granted in favour of the said Palivela Ramudu and Nookaraju in the year 1969 except a reference made in the order of the Collector dated 24-08- 1980 transferring the said lands for rehabilitation. The Photostat copies of notices dated 10-11-1942 issued by the Distraint Revenue Inspector of Pedagadi Thata to Palivela Ramudu and Palivela Nookaraju stating that Palivela Ramudu occupied Acs.6.00 of banjar land in old Survey No.83/B and Nookaraju occupied Acs.5.00 of land in the same survey number and the fact that they were asked to pay some cist within 15 days show that the land forms part of erstwhile Vizianagaram estate and that they are cultivating tenants under the Zamindar, therefore, on the abolition of the estate they are entitled to ryotwari patta under Section 11 of the Estates Abolition Act and thus the writ petitioner is entitled to writ of mandamus declaring that he is entitled to continue in possession without any obstruction whatsoever from the respondents over an extent of Acs.10.00 of land in R.S Nos.64/17 and 64/18 of Pedagantyada Manal, Visakhapatnam District. Aggrieved by the orders of the learned single Judge in the above said writ petition, the Special Officer, Land Acquisition, Visakhapatnam filed Writ Appeal No. 930 of 1992 wherein this Court passed the following order: “There is no question of interfering in these proceedings as the learned single Judge has taken the view that the authorities can not disturb the original writ petitioner’s possession, meaning thereby, save are except in accordance with law. We are told that a notice under sub- section (2) of section 3 of the A.P Assigned Lands (Prohibition of Transfers) Act, 1977 is already issued. Even if that is so, the notice will have to be proceeded in accordance with law after hearing all concerned on all available points. Atleast so far as these proceedings are concerned, no further orders are required to be passed. Hence this appeal is dismissed. No costs.” Pursuant to the orders passed in the above writ appeal, a show cause notice was issued under Section 3 (2) of Act 9 of 1977 and served on the writ petitioner on 16-12-1992 as well as on the legal representatives of the assignees. In response to the same, it appears, the writ petitioner has not chosen to file any statement, but his G.P.A holder filed statement simply stating that this Court had already decided the said issue in Writ Petition No.4287 of 1989 and the same has been confirmed by the Division Bench in Writ Appeal No. 930 of 1992. Having not satisfied with the reply given to the show cause notice, the appellant passed the impugned order rejecting the contention of the writ petitioner holding that for a person to claim patta under Section 11 (a) of the Estates Abolition Act, he has to satisfy two requirements viz., (1) that the land should be ryoti and (2) that the claimant should have been inducted into the land prior to 1-7-45 and that he should have sufficient documents to show that he is inducted by the land holder accordingly and has been in continuous possession ever since. The village itself was taken over along with the estate on 07-09-1949 and as per the Gilman’s Settlement Register of 1904-1905 old Survey No.83 correlated to R.S No. 64 which was banjar land to an extent of Acs.79.36 cents. Out of the same, Ac.0.75 cents was converted to ryoti in the year 1935 which necessitated sub-division of the land as O.S No. 83/A – Ac.0.75 cents and O.S No.83/B – Acs.78.55 cents. During the resurvey conducted in the year 1955-56, old Survey No. 83/B correlated to R.S No.64/1 with an extent of Acs.78.33 cents and the balance of Ac.0.22 cents which was brought under cultivation was sub-divided as 64/2. During the settlement operations conducted in the year 1956-57, Settlement Officer inspected the land, granted pattas to some more persons who were cultivating the land prior to 01-07-1945 and were sub-divided as numbers 3 to 16 and after it, remained an extent of Acs.49.33 cents in S.No. 64/1 classified as AWD. Since the names of Palivela Ramulu and Palivela Nookaraju did not find place as persons in occupation, 16 persons in occupation prior to 1-7-45 were granted pattas in sub-divisions 3 to 16. In the Register of Encroachment prepared as per the survey operations conducted in 1955, the names of Palivela Ramudu and Palivela Nookaraju figured in the list of encroachers in occupation of R.S No. 64/1 and the age of the encroachment was noted as five years and on the application made by them, D-form pattas were granted to the applicants by sub-dividing the lands and creating new sub-divisions 17 to 35 in R.S No. 64/1. Once the assignees failed to cultivate the land and the sale is in violation of Section 3 (1) of Act 9 of 1977, the appellant ordered for resumption of the land. Questioning the resumption order, the respondent – writ petitioner filed the writ petition contending that Palivela Ramudu and Palivela Nookaraju have been in possession and enjoyment of the land prior to 1935 cultivating the same on their own right. Subsequently by virtue of partition between them, Palivela Ramudu has got Acs.6.00 of land and Nookaraju has got Acs.5.00 of land. Palivela Ramudu died in the year 1969 leaving behind three sons who succeeded to the property and continued to be in possession of the same. The legal heirs of Palivela Ramudu and Nookaraju sold the land in favour of the writ petitioner on 26-12-1970 under a registered sale deed and ever since he is in possession and enjoyment of the same. However, when he was tried to be dispossessed, Writ Petition No. 4287 of 1989 is filed contending that his vendors Palivela Ramudu and Nookaraju were cultivating heirs under the Zamindar of Vizianagaram since 1935 and they were granted pattas. This Court held that the petitioner’s vendors Palivela Ramudu and Nookaraju were owners of the land and that he shall not be dispossessed without taking any action by due process of law meaning thereby that the petitioner’s right and interest in the property shall not be taken away without initiating the proceedings under the Land Acquisition Act or any other law which enables the Government to take possession of the property. On dismissal of the writ appeal, the said finding became final. It is further stated that when it was brought to the notice of the appellant that the lands are ryoti lands and they have no jurisdiction to initiate action, it is not open to the appellant to conclude that the judgment of the learned single Judge is not correct and he cannot sit in appeal over the judgment. It is further contended by the writ petitioner that basing on the notice dated 10-11-1942 issued by the Distraint Revenue Inspector this Court gave the said findings and, therefore, the impugned order cannot be sustained. A detailed counter affidavit is filed stating about the sub-division of the land and its recording as AWD etc. It is stated that the land in question is an assigned land and prior to 1969, the writ petitioner’s predecessors in title have encroached upon the land and when once the Division Bench in Writ Appeal No.930 of 1992 modified the order permitting the Government to decide the issue pursuant to the show cause notice, the entire matter has been enquired into denovo and that the original assignment records are traced on which basis the impugned order has been passed and that the notice dated 10-11-1942 is not in the knowledge of the Mandal Revenue Officer. It is further stated that the said notice has been created and there is no need to challenge the validity of notice dated 10-11-1942 as the same does not relate to the scheduled lands and it is a nullity. The learned single Judge by the impugned order held that in the earlier writ petition, the stand taken by the appellant was that the D-form pattas were issued in respect of the lands in question and, therefore, the Government is entitled to resume the land as it is required for rehabilitation of displaced persons but failed to substantiate the same by producing necessary records to establish that the lands in question were assigned to the vendors of the writ petitioner by granting D-form pattas. The learned single Judge further held that this Court in the earlier writ petition by placing reliance on the Photostat copies of notice dated 10- 11-1942 relied upon by the writ petitioner held that the lands are located in the erstwhile Vizianagaram Estate and as there is evidence that the vendors of the writ petitioner were cultivating the lands, they will be entitled to ryotwari pattas under Section 11 of the Estates Abolition Act. Even assuming that the said finding is not correct, as the pattas granted under Section 11 of the Estates Abolition Act were not produced, the case of the appellant that the lands were assigned by issuing D-form pattas to the vendors of the writ petitioner has been categorically rejected in the earlier writ petition and that the appellant had the opportunity of substantiating his claim in the earlier writ petition itself by producing the records. The observations made by the Division Bench in Writ Appeal No. 930 of 1992 would only mean that if it is otherwise legally possible for the appellant to take necessary action in accordance with law, he may do so for evicting the writ petitioner. It does not mean that the principle of res judicata does not operate merely because the Division Bench in the said writ appeal has stated that necessary action may be taken by the appellant in accordance with law against the writ petitioner. Holding so, the learned single Judge allowed the writ petition. Hence, the writ appeal. Sri N. Sridhar Reddy, learned Special Government Pleader and the learned Government Pleader representing the learned Advocate General contend that the land was assigned to the vendors of the petitioner on 30-08-1961 pursuant to the applications made by them. Pursuant to the assignments made, they have also paid the fees for sub- division of Survey No. 64 and the same was sub-divided and marked as Survey Nos.64/17 and 64/18 as per the sub-division order in Rc.No.2485/69, dated 27-06-1969 and after sub-division assignment orders were passed on 30-08-1961 over an extent of Acs.5.00, but no D- form pattas were granted in favour of the vendors of the petitioners. According to him, when vendors of the petitioner themselves cannot claim that they are cultivating tenants and entitled to patta under Section11 (a) of the Estates Abolition Act, the petitioner cannot claim any right. Once the sale is in violation of the provisions of the Act, the same has been rightly resumed. As the Division Bench modified the earlier order permitting the appellant to proceed in accordance with law including as per the notice issued for violation of Act 9 of 1977, the earlier finding, if any recorded to the said effect has been modified permitting the appellant to take action. Per contra, Sri N.V. Suryanarayana Murthy, learned Senior Counsel appearing for the respondent – writ petitioner contends that the finding in Writ Petition No. 4287 of 1989 that Palivela Ramulu and Paliela Nookaraju are entitled to pattas under Section 11 (a) of the Estates Abolition Act becomes final. Once it is recorded that the vendors of the petitioner are entitled to ryotwari patta under Section 11(a) of the Estates Abolition Act, nothing prevented the writ petitioner or his successor to file a claim petition before the Settlement Officer. Even after disposal of the writ petition the plea of the appellant that the writ petitioner has no right to establish cultivation of land prior to 1947 is erroneous when the cist receipt of the year 1942 establishes payment of cist. Therefore, the appellant cannot make enquiry into the same. To buttress the submission, he has placed reliance upon paras 4 and 5 of the judgment reported in Athmanathswami Devasthanam v. Gopalaswami Ayyangar[1]. According to him, the earlier order passed by this Court holding that the vendors of the writ petitioner are entitled to ryotwari patta under Section 11 of the Estates Abolition Act has become final and as it operates as res judiata, it cannot be reopened. In support of his contention, he placed reliance upon the judgments of the Supreme Court and also of this Court reported in State of W.B v Hemant Kumar Bhattacharjee[2]; the Workmen of Cochin Port Trust v. the Board of Trustees of the Cochin Port Trust[3]; Dr. Rao V.B.J. Chelikani v. Government of Andhra Pradesh[4] (para 82) and Indian Timber and Plywood Corporation Limited v. State of Kerala[5]. Learned Senior Counsel further contended that when procedure under Board Standing order 16 has not been followed for grant of assignment and no patta has been granted, the land cannot be resumed. In view of the above submissions made, whether the finding recorded in the earlier writ petition operates as res judicata or not depends upon the fact as to whether the order passed therein attained finality or not. Writ Petition No.4287 of 1989 was filed for issuance of a mandamus declaring that the writ petitioner is entitled to continue in possession to the extent of Acs.10.00 of land in R.S Nos. 64/17 and 64/18 situated at Pedagantada Village, Pedagantyada Mandal, Visakhapatnam District without any obstruction whatsoever from the respondents therein or their subordinates. The learned single Judge allowed the writ petition declaring that the writ petitioner is entitled to continue in possession without any obstruction. On appeal being filed, the Division Bench while dismissing the appeal opined that the view taken by the learned single Judge that the authorities cannot disturb the original writ petitioner’s possession, meaning thereby, save or except in accordance with law. Further, it was observed that notice under sub- section (2) of Section 3 of Act 9 of 1977 has already been issued and the said notice will have to be proceeded in accordance with law after hearing all the concerned on all available points. The order of the learned single Judge merged with the order of the Division bench where the writ petitioner’s possession was directed not to be disturbed save except in accordance with law and permitting the respondents to take the proceedings to its logical end on all available points. The Supreme Court in Kunhayammed & Ors v. State of Kerala & Anr[6] explained the doctrine of merger on dismissal of the special leave petition. The order passed in the writ appeal is in exercise of appellate jurisdiction and capable of reversing, modifying or confirming the order put in issue before it and the doctrine of merger can be applied to the orders passed in exercise of appellate jurisdiction. It was further held that the fact whether order of the appellate authority is one of reversal or modification or of dismissal confirming the order appealed against would not make any difference. Once the appellate Court applies its mind to the order put in before it and exercises its letters patent jurisdiction after issue of notice and disposes the appeal after full hearing in the presence of both the parties, such order would be appellate order and would attract the applicability of doctrine of merger. Admittedly, in the present case, while disposing of the appeal, the order of the learned single Judge has been clarified as explained above, meaning thereby that it was left open to the authority to pass an order. Therefore, the finding of the learned single Judge is not final and the same will not operate as res judicata. Sri N.V. Suryanarayana Murthy, learned Senior Counsel further contends that when part of Survey No.83 is a ryoti land, the remaining land cannot be AWD. On abolition of the estate, the entire land will become a ryoti land as defined under Section 3 (16) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908. Section 3 (16) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 which defines ryoti land reads as under: ““Ryoti land” means cultivable land in an estate other than private land but does not include – (a) beds and bunds of tanks and of supply, drainage surplus or irrigation channels; (b) threshing-floor, cattle-stands, village-sites, and other lands situated in any estate which are set apart for the common use of the villagers; (c) land granted on service tenure either free of rent or on favourable rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.” Section 11 of the Estates Abolition Act, deals with grant of ryotwari pattas in which the ryot is entitled to the same. The proviso to Section 11 provides that no person who has been admitted into possession of any land by a landholder on or after the first day of July, 1945, shall except where the Government, after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land. When the vendors of the petitioner themselves have made an application on 12-04-1961 for assigning Acs.5.00 of land each, sub- division was ordered sub-dividing as Survey Nos.64/17 and 64/18 and the same was ordered to be assigned in their favour, but no patta has been issued to them. On 30-05-1969, both the vendors made an application to issue D-form pattas for the lands assigned in their favour, an endorsement was made to enquire into the financial status of the individuals and whether the case of assignment is genuine or not. From the above applications made by the vendors of the petitioner it can be presumed that Palivela Ramudu and Palivela Nookaraju cannot claim ryotwari patta as they are not in possession prior to the cut off date and they cannot compare themselves with the persons who are in possession of the property covered by the Survey Nos.64/2 to 16 and who were granted ryotwari pattas since the remaining extent can be granted as ryotwari pattas to the persons who are not in possession. It was subsequently found that they encroached into the property as per the encroachment survey operations conducted in 1955 and conceding the request of Palivela Ramudu and Nookaraju for grant of D-form pattas applied to the Tahsildar, the Tahsildar passed an order on 26-06-1969 to subdivide the land with a view to grant D-form patta to the applicants and granted D-form pattas. The fact that they have not made any claim to grant ryotwari pattas as granted in favour of other ryots in Survey No.64/2 to 16 at the time of settlement itself shows that they are not entitled to ryotwari pattas. Therefore, the petitioner is estopped from the actions of their vendors to claim ryotwari patta under Section 11 of