Case: Chigurupati Venkata Subbayya &amp; Ors Vs. Paladuga Anjayya &amp; Ors

1. This is an appeal by special leave. Defendants 2 to 7 in the suit are the appellants in this appeal. The plaintiffs who are respondents 1 to 4 herein sued for a declaration that Survey Nos. 12 to 18 comprising an extent of 10 acres 54 cents in South Vallur village of Vijayawada Taluk are communal lands, the villagers therein having rights of irrigation and drainage. In that suit they challenged the assignment of suit lands in favour of the 2nd defendant (1st appellant) by the Estates Manager by his order of December 21, 1952. They also sought a permanent injunction restraining the defendants from interfering with the exercise of their rights in those lands. Further they prayed for a mandatory injunction against defendants 2 to 7 directing them to restore "Agakodu" at their own cost to its original condition. The plaintiffs brought the suit in a representative capacity after obtaining the permission of the Court3. The trial court dismissed the plaintiffs suit upholding the contentions of the 2nd defendant. It came to the conclusion that the plaintiff had failed to establish the communal character of the lands pleaded by them and further even if those lands were communal lands at one time, they had ceased to be such in view of the various order passed by the authorities4. The first appellate court reversed the findings of the trial court and decreed the plaintiffs suit as prayed for. It came to the conclusion that the lands in question were communal lands and the villagers had rights or irrigation and drainage through those lands. It further came to the conclusion that the various orders referred to by the 2nd defendant in his written statement were either invalid or ineffective. The High Court has affirmed the decision of the 1st appellate court.

Reasoning:
6. We shall now proceed to examine these contentions. But before doing so, it is necessary to point out that Mr. Pillai attempted to reopen questions of fact which appear to have been conceded before the High Court. We have not permitted him to do so. From the judgment of the High Court, it is clear that the arguments in that court proceeded on the basis that the suit lands were once communal lands; Survey Nos. 12 to 15 even now continue to be communal lands but Survey Nos. 16 to 18 ceased to be as such because of the order passed by the Collector, Krishna on October 29, 1946 under S. 20-A (1) of the Madras Estates Land Act as well as that passed by the Estates Officer and Assistant Settlement Officer subsequently, to which we shall refer presently. In the course of the judgment the learned Judge of the High Court observed7. In view of the stand taken by the appellants before the High Court, it is not permissible for them to contend that Survey Nos. 12 to 18 were at no time communal lands nor is it open to them to contend that Survery Nos. 12 to 15 do not still continue to be communal lands. The controversy as regards the nature of the lands, therefore, must be confined to Survey Nos. 16, 17 and 18. In this view the first contention of Mr. Pillai fails so far as Survey Nos. 12 to 15 are concerned17. The lands with which we are concerned are not lanka lands nor were they declared to be ryoti lands either under the Abolition Act or under the Estates Land Act. That being so the Assistant Settlement Officer had no competence to grant ryotwari patta in respect of those lands - see the decision of the Madras High Court in Valathar Mooppannar v. Board of Revenue, Madras, (1966) 1 Mad LJ 354.That officer has purported to grant the patta in question even without notice to the interested parties and that during the pendency of the suit18. For the reasons mentioned above, we are unable to accept the contention of the appellants that Survey Nos. 16 to 18 have ceased to be communal lands or that the appellants had obtained any lawful title to them20. The decision of the Settlement Officer which is made final under this section must be a decision in respect of one of the matters referred to in sub-s. (1) of S. 56. The controversy with which we are concerned in this case viz. Whether the suit lands continue to be communal lands does not fall within the scope of that section. Hence we are unable to accept the contention of the appellant that the order made by the Settlement Officer has become final or conclusive. It is a wholly invalid order. In this view, it is not necessary to consider whether an order made under S. 11 without notice to the interested persons can be considered as a valid order21. The contention that the civil courts have no jurisdiction to go into the controversies arising for decision in this case in view of S. 189 (1) of the Estates Land Act is again without merit. That section provides:"A District Collector or Collector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appellate or revisional jurisdiction therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue CourtNo Civil court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of the which such suit or application might be brought or made.22.The jurisdiction of the civil courts is taken away only in respect of suits or applications of the nature specified in parts (A) and (B) of the Schedule to the Act.No reliance was placed by the appellants on any of the matters mentioned in part (A) of the Schedule. Even as regards matters mentioned in part (B) reliance was only placed on item 5 of that Schedule. Part B refers to applications to be disposed of by a District collector or Collector. Item 5 refers to a decision of the Collector under S. 20-A (1).We have already come to the conclusion that the Collector had made no order under that section. Hence s. 189 of the Estates Land Act is not attracted to the present case. The disputed with which we are concerned is a civil dispute. Therefore the court below had jurisdiction to decide the same under S. 9 of the Civil Procedure Code23. The only other contention that remains to be considered is that the communal rights in the suit lands stood abolished under S. 3 of the Estates Abolition Act. This contention does not appear to have been taken before the High Court. Therefore we see no justification to go into that contention. That apart, there appears to be no basis for that contention. Section 3 (a) of the Estates Abolition Act, repeals several Acts includingthe Madras Estates Land Act, 1908. In view of cl. (b) of that section all Estates including the communal lands, porambokes and other ryoti lands, waste lands pasture lands, Lanka lands, forests, mines and minerals, quarries, rivers and streams tanks and irrigation works: fisheries and ferries stood transferred to the Government and vested in them free from all encumbrances. It further provides that that Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to that estate. Clause (c) of that section prescribes that"all rights and interest 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."24. It is true that the suit lands in view of Sec. 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. What has been abrogated is the rights and interests created in or over the estate before the notified date by the principal or other landholder. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by Clause (c) of Section 3 of the Estates Abolition Act.