Andhra Pradesh High Court - Amravati
Moganti Rama Santhi vs The State Of Andhra Pradesh on 7 April, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
W.A.No.292 of 2019
(Proceedings through physical mode)
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Revenue Department,
A.P. Secretariat,
Velagapudi, Guntur District and three others.
.. Appellants/Respondents
Versus
Dulla Ramunaidu
S/o Adiyya, aged 54 years,
Occ.Agriculture,
R/o E.Marripalem Village,
Parawada Mandal,
Visakhapatnam and three others.
.. Respondents/Petitioners
Counsel for the Appellants : Mr. B.Sesibhushan Rao for
Additional Advocate General.
Counsel for respondents : Sri G.V.Ramana Murthy
JUDGMENT
Dt. 07.04.2022 (Per M.Satyanarayana Murthy, J)
1) Aggrieved by the order dated 05.11.2018 passed in W.P.No.2168 of 2017 by the learned single Judge, the State preferred this appeal under Clause 15 of Letters Patent, raising several contentions.
2) The parties to the appeal will hereinafter be referred as arrayed before the learned single Judge for the sake of convenience and to avoid confusion.
CJ and MSM,J Wa_292_2019 2
3) The learned single Judge allowed the writ petition declaring the impugned order dated 15.12.2016 issued by respondent No.2 in respect of the petitioners lands in R.S.No.17 and corresponding to old Sy.No.23/1, 2, 3 an extent of Ac.04.50 cents, Sy.No.17 and 18 part corresponding to old Sy.No.23/1, 2, 3 and 24 part an extent of Ac.02.50 cents in Rs.No.17 and 18 part corresponding to old Sy.No.23/1, 2, 3, 24 part Ac.2.42 cents and R.S.No.17 and 18 part corresponding to old Sy.No.23/1, 2, 3, 24 part Ac.2.42 cents admeasuring total extent of Ac.11.84 cents in Edumetla Marripalem village, Parawada Mandal of Visakhapatnam District as illegal, against law and violation of Article 14, 16 and 300-A of Constitution of India and set aside the same.
4) The chequered history of proceedings before the different authorities, though necessary for better appreciation, the same will be referred at appropriate stage after little narration of the facts of the petitioners case.
5) The specific contention of the petitioners is that the subject land is a „Rythi land‟. The petitioners' ancestor Dulla Errasanyasi was lawfully inducted into the subject land and was in possession and enjoyment of the land prior to 01.07.1945, which is the notified date for grant of Rythwary Patta. His name was also recorded in Gillman Register of the year 1904. In fact, before the year 1904, the land was in possession and enjoyment of the petitioners' ancestor. The subject land was patta land but not Gayalu. E.Marripalem village is part of Anandapuram Thana in Vizianagaram Zamin Estate. The estate was taken over by the Government on 12.01.1951 as per the provisions of the A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short "the Estates Abolition Act") and settlement rates were CJ and MSM,J Wa_292_2019 3 introduced in E. Marripalem village with effect from 01.07.1959. The ancestors of the petitioners were continuously cultivating the land. The names of ancestors were recorded in Adangal of the village. The Tahasildar, Parawada Mandal, in the counter filed in the proceedings before the authorities, admitted that the ancestors of the petitioners were in long standing possession and enjoyment of the subject land for more than 50 years prior to 01.07.1945. The lands are zeroithi lands. The petitioners‟ ancestors paid cist to the Government. (Copies of Land Revenue receipts for Fasalies 1404, 1406 and 1414 along with certified copies and the relevant extract from Gillman Register were filed before the learned single Judge)
6) As there is no limitation to claim Ryotwari patta under Section 11(a) of the Estates Abolition Act and in the absence of rival claimants, the name of Dulla Yerra Sanyasi was recorded in pattadar column No.8 in Gillman Register of 1904, which is a settlement register. The said HFW Gillman, who is a special agent for Government of Madras, with the assistance of the Settlement Officer, after completion of survey operations, settled that, Dulla Yerra Sanyasi was in possession and enjoyment of the land in the year 1904 and was pattadar for old survey numbers 23/1,2,3 and also 24 part, which corresponds to new survey number 17 part and 18 part. Dulla Yerra Sanyasi is a ryot. He had both Kudivaram and Melvaram rights. In view of the explanation The purport of the explanation introduced in Section 3 by amending the Madras Estates Land Act, 1908, with amendment in the year 1934, is to give occupancy rights to a person who was in occupation at least for 12 years where there was no other ryot having occupancy rights in the said land. Dulla Yerra Sanyasi, the common ancestor of the petitioners, continued his possession over the subject CJ and MSM,J Wa_292_2019 4 land till his death. Thereafter, his successors came into possession and enjoyment of the land in question. Even as per the counter of the Tahasildar, Parwada, filed before the primary authority, „Dulla family‟ was in possession and enjoyment of the subject land for 50 years prior to 01.07.1945. Occupancy rights are heritable. His rights flowed to the present petitioners as they succeeded the right by way of succession under the Hindu Succession Act. When, in the year 1904, as per Gillman‟s settlement register the subject land was shown as ryoti land and the petitioners‟ ancestor was a ryot, the recording as against the survey numbers as „gayalu‟ or AWD (Assessed Waste Dry) in the revision survey and settlement, which were introduced in the year 1959, is against the purpose and intention of both the Madras Estate Lands Act, 1908, and the provisions of the Act. Entering the name of Yerra Sanyasi in pattadar column is sufficient to prove that he was in possession and enjoyment of the land and that he was the pattadar and his record of rights had been conclusively proved in respect of old survey numbers 23/1,2,3 and 24 which co-related to revision survey numbers 17 part and 18 part covering entire subject land.
7) It is further contended that the schedule land is Ryoti land under the settled terms.
8) Ryoti land is cultivable land in an Estate other than private land. Ryoti land doesn't forfeit its character as such merely because, it goes out of cultivation for some years and once the land is Ryoti in nature, it is always Ryoti in land.
9) In the present case, the name of Dulla Yerra Sanyasi had been recorded in Pattadar column No.8, in Gillman Register 1904, which is a Settlement Register. As the said HFW Gillman is a special agent for CJ and MSM,J Wa_292_2019 5 Govt. of Madras who with the assistance of the Settlement Officer, after completion of survey operations settled that, Dulla Yerra Sanyasi was in possession and enjoyment of the land in the year 1904 and who was pattadar for old survey numbers 23/1, 2, 3 and also 24 part, which corresponds to new survey number 17 part and 18 part. Despite the settled legal position, the authorities under the Act i.e. Special Officer did not consider the same even without taken into consideration of admission made in the counter filed by the Tahsildar, rejected the claim of the petitioner erroneously.
10) Before, the Joint Collector - cum - Settlement Officer and also the Commissioner and Director of Settlement raised two points i.e. the claim of the petitioners is time barred and the word "Gayalu" is recorded in Settlement Fair Adangal, and concluded that the land is recorded as "Gayalu" not a ryoti land and that the claim of the petitioners is barred by limitation. These conclusions are not based on any law and contrary to the settled law laid down by the Courts, requested to set aside the impugned order dated 15.12.2016 issued by respondent No.2.
11) Though the petitioners referred to legal position at different paragraphs of the petition with reference to limitation and change of nature of the land, the legal position will be referred at appropriate stage while deciding the real controversy between the parties. Therefore, for the present, those contentions are not extracted with reference to law.
12) The respondents filed counter denying material allegations inter alia contending that the subject land was classified as "Gayalu" in the re-settlement register. Apart from that, the claim was filed after long lapse of time though there is no limitation for making such claim CJ and MSM,J Wa_292_2019 6 before the authorities under the Estates Abolition Act. The petitioners have to file their claim within reasonable time.
13) It is further contended that as on notified date, the land is not a ryoti land and it is only "Gayalu", as such the land is not cultivable land, thereby grant of patta in favour of the petitioners after long lapse of five decades does not arise, requested to dismiss the writ petition.
14) At this stage, it is apposite to narrate the chequered history of the case for the purpose of deciding the real controversy between the parties.
15) Initially, the petitioners filed respectively S.R.Nos.11(a)1/2008- F2, 11(a)2/2008-F2, 11(a)3/2008-F2 and 11(a)4/2008 F2 before the Joint Collector-cum-Settlement Officer, Visakhapatnam, for grant of ryotwari patta under Section 11(a) of the Estates Abolition Act, in respect of their respective land viz., an extent of Ac.4.50 cents in RS.No.17 corresponding to old Sy.no.23/1,2,3; an extent of Ac.02.50 cents Sy.No.17 and 18 part corresponding to old Sy.No.23/1,2,3 and 24 part; Ac.2.42 cents in RS.No.17 and 18 part corresponding to old Sy.No.23/1, 2, 3 and 24 part; Ac.2.42 cents in R.s.No.17 and 18 part corresponding to old Sy.No.23/1,2,3 and24 part; admeasuring an extent of Ac.11.84 cents, in all, in Edumetla Marripalem Village, Parawada Mandal of Visakhapatnam District [hereinafter referred to as „subject land‟. The Joint Collector, by his separate orders, dated 02.02.2008, dismissed the said claims, inter alia, observing that the claims are devoid of merit and also time barred. Aggrieved of the said orders, the petitioners preferred revision petitions in R.P.Nos.81/08/VSP/A2, 80/08/VSP/A2, 82/08/VSP/A2 and 79/08/VSP/A2 respectively before the Commissioner & Director of CJ and MSM,J Wa_292_2019 7 Settlements, AP. The Commissioner, vide separate orders, dated 15.11.2011, having found that while passing the impugned orders, the Joint Collector had not reasonably examined certain aspects of the matter, remanded the cases to the Joint Collector for de novo enquiry under Section 11(a) of the Estates Abolition Act. In the said remand order, he pointed out the aspects to be examined. Accordingly, the Joint Collector having conducted de novo enquiry, by his common orders, dated 30.06.2012, once again rejected the claims of the petitioners for issuance of ryotwari patta under Section 11(a) of the Estates Abolition Act. Aggrieved thereby, the petitioners preferred revision petition in RP.No.34/2012/A before the Commissioner & Director of Settlements, Hyderabad. The Commissioner, by orders, dated 28.08.2013, dismissed the revision. Aggrieved of the said orders, the petitioners preferred further revision in CCLA‟s Ref.No.P1/885/2013 before the Commissioner of Appeals. By orders, dated 15.12.2016, the said revision petition was also dismissed. Therefore, the petitioners filed the present writ petition.
16) Learned single Judge allowed the writ petition directing the respondents to grant patta under Section 11 (a) of the Estates Abolition Act, in favour of the petitioners holding that the ancestor of the petitioners were in possession of the ryoti land, while concluding that no limitation is prescribed to prefer the claim before the competent authority for issue of patta under Section 11 (a) of the Estates Abolition Act.
17) Aggrieved by the order of the learned single Judge, the State preferred appeal raising serious questions on facts and law, which are as follows:
CJ and MSM,J Wa_292_2019 8
18) The first and foremost contention urged before this Court is that in the absence of pre-existing right in ryoti land based on pre-abolition record, occupation of the land subsequent to notified date will not create any right on the occupier to settle the land in his favour by issuing a patta under Section 11 (a) of the Estates Abolition Act, but the learned single Judge did not consider the eligibility of the petitioners for grant of ryoti patta under Section 11 (a) of the Estates Abolition Act. For grant for ryotwari patta under Section 11 (a) of the Act, the claimant has to satisfy the following conditions.
a) The land should be ryoti.
b) The Claimant must be a ryot and hold the land for the purpose of the agriculture on the condition of paying rent to the land holder.
c) The Claimant should have been inducted into the land by the landholder prior to 01.07.1945 and continue to be in possession till the notified date of the estate and the claimant has to prove possession and enjoyment of the land prior to 01.07.1945 with reference to documents such as Zamindari patta, cist receipt of the pre-abolition period or sale deed if he purchased the land from any ryot and so on which were to be reflected in the old estate accounts viz., Dittam, Adangal (Sagubadi chitta). The Writ Petitioners have not fulfilled any of the above said conditions and as such they are not entitled for the relief sought for in the Writ Petition. But the learned single Judge did not consider the same in proper perspective and committed error in allowing the writ petition.
19) It is further contended that the land in different survey numbers claimed by the petitioners is not ryoti land and the petitioners are not ryots as defined under Section 3 (15) and (16) of the Andhra Pradesh (A.A.) Estates Land Act, 1908 (for short „Estates Land Act) but the learned single Judge without considering the CJ and MSM,J Wa_292_2019 9 definition of „ryot‟ and „ryoti land‟ ordered the writ petition holding that the petitioners are entitled to claim ryotwari patta under Section 11 (a) of the Estates Abolition Act.
20) It is further contended that on verification of records, the estate was taken over on 12.01.1957 and the settlement rates were introduced on 01.07.1959. The subject land was classified as Gayalu as per the Settlement Fair Adangal. As such, the documents relied on by the Writ Petitioners related to pre-abolition period and they do not extend any assistance to the Writ Petitioners to claim the patta under Section 11 (a) of the Estates Abolition Act, but the learned single Judge totally ignored the same, as such on this ground, the order of the learned single Judge is liable to be set aside.
21) As per Settlement Fair Adangal of E.Marripalem village an extent of Ac.10.50 cents of land in Sy.No.17 is classified as "Gayalu" (AWD) and out of the entire extent, an extent of Ac.8.50 cents was assigned to Dulla Ramunaidu, Dula Venkata Swamy and Dulla Mahalakshmi in the year 1979 and subsequently, Dulla Ramunaidu and 3 others have jointly filed a claim petition on 25.05.2007 before the then Tahsildar, Parawada for regularization of provisional pattas for the lands measuring Ac.10.50 cts in S.No.17 and Ac.1.42 cts in survey Nos.18/2, 3 and 4 of E.Marripalem village stating that the lands are under their cultivation and enjoyment for the last 45-50 years and the said lands are ryotwari in nature and their late father Adeyya was cultivating the said lands prior to them and that the then Tahsildar, Parawada vide endorsement RC.No.262/07 dated 26.05.2007 has informed the claimants that the said land is classified as "Gayalu" as per the entries in Settlement Fair Adangal/ settlement CJ and MSM,J Wa_292_2019 10 records. But, this fact was not considered by the learned single Judge, which disentitled the petitioners to claim patta as the land is not ryoti land and that the same was classified as "Gayalu".
22) The petitioners in the writ petition filed their individual claims under Section 11 (a) of the Estates Abolition Act before the Joint Collector and Settlement Officer, Visakhapatnam for grant of ryotwari patta and the Joint Collector & Settlement Officer, Visakhapatnam has rejected the claims of the individuals vide orders dated 02.02.2008. Aggrieved by the orders of the Joint Collector, the respondents herein filed Revision Petitions before the Commissioner and Director of Settlements, Andhra Pradesh, Hyderabad and the Commissioner and Director of Settlements, Andhra Pradesh, Hyderabad by an order dated 15.11.2011 remanded the revision cases to the Joint Collector and Settlement Officer, Visakhapatnam for conduct of fresh/denovo enquiry under Section 11 (1) (a) of the Estates Abolition Act and on remand, the Settlement Officer, Visakhapatnam passed common order in S.RNos.11(a)1,2, 3, 4/2012 F2 dated 30.06.2012 rejecting the claims. The learned single Judge did not consider the common order referred above, which was again confirmed by the Commissioner and Director of Settlements vide proceedings RP No.34/2012-A dated 28.08.2013 rejecting the claim of the petitioners. Aggrieved by the orders dated 28.08.2013 of the Commissioner and Director of Settlements, Andhra Pradesh, Hyderabad, the respondents herein filed Revision Petition No.P1/885/2013 before the Commissioner of Appeals, CCLA, Andhra Pradesh, Vijayawada and the Commissioner of Appeals by an order dated 15.12.2016 dismissed the revision petition vide proceedings No.Ref.No.P1/885/2013. But these orders have not been considered CJ and MSM,J Wa_292_2019 11 in proper perspective by the learned single Judge while ordering the petition, directing the respondents to grant patta in favour of the petitioners. Therefore, the order of the learned single Judge is liable to be set aside.
23) During hearing, learned counsel for the State (appellant before this Court) Sri B.Sesibhushan Rao, contended that the record placed before the learned single Judge by the petitioners is not genuine. The subject land is not ryoti land and for occupation of the ancestors of the petitioners, B-memos were issued for payment of cist to the State. These memos were also placed on record, but they were not considered by the learned single Judge. Unless a finding is recorded that the petitioners are ryots, the direction issued by the learned single Judge is erroneous.
24) It is also contended that when the Gillman register was received and recorded the nature of land as „Gayulu‟, it cannot be treated as cultivable land and mere continuation in possession as encroachers would not enable them to claim patta under Section 11 (a) of the Estates Abolition Act, but the learned single Judge did not consider these aspects, more particularly about the requirements under Section 11 (a) of the Estates Abolition Act for issue of patta based on pre-abolition record, but the learned single Judge erroneously issued a direction in the writ petition allowing the writ petition. He placed on record certain copies of the documents for consideration at this stage. On the strength of those documents, he requested to allow the writ appeal setting aside the order of the learned single Judge while confirming the order passed by the Authorities under the Estates Abolition Act. It is also contended that the claim of the writ petitioners CJ and MSM,J Wa_292_2019 12 is time barred, but the learned single Judge erroneously held that, no limitation to make a claim under Section 11(a) of the Estates Abolition Act.
25) Sri G.V.Ramana Murthy, learned counsel for the respondents/ petitioners would submit that various judicial admissions made by the Tahsildar in the counter/written statement before the Settlement officer in the claim preferred by the petitioners under Section 11 (a) of the Estates Abolition Act are suffice to reject the appeal. Apart from that, under the Act, the nature of the land cannot be changed from „ryoti‟ to „Gayalu‟ by the authorities concerned without following the procedure prescribed under the Act. Therefore, mere making entry as „Gayulu‟ subsequent to notified date would not enure any benefit to the Government and that the State is making hectic effort to denude the petitioners to claim patta under Section 11 (a) of the Estates Abolition Act obviously for the reasons best known to them. Therefore, the order of the learned single Judge is well considered order and does not warrant interference of this Court while exercising power under Clause 15 of Letters Patent, requested to dismiss the appeal.
26) Considering rival contentions, perusing the material available on record, the points need be answered by this Court are as follows:
1) Whether the claim of the petitioners for grant of patta under Section 11 of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 is within limitation?
2) Whether the petitioners are „ryots‟ in occupation of „ryoti land‟ as defined under Section 3 (15) and (16) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908?
3) Whether the ancestors of the petitioners were in possession and enjoyment of the subject land prior to the notified date based on pre-abolition record and succeeded the estate being the legal heirs and continued to cultivate the same till the date of grant of rough patta in their favour and till filing of claim before the CJ and MSM,J Wa_292_2019 13 Settlement Officer - cum - Joint Collector, Vizianagaram? If so, whether the petitioners are entitled to claim ryotwari patta under Section 11 (a) of the Andhra Pradesh (A.A.) Estates (Abolition and Conversion into Ryotwari) Act, 1948?
P O I N T No.1:
27) The main argument of the State from the beginning i.e. from the stage of application under Section 11(a) of the Estates Abolition Act, was that, the claim of these petitioners is barred by limitation.
Initially, the authorities under the Act i.e. Primary Authority, Appellate Authority and Revisional Authority concluded that the claim of these petitioners was barred by limitation. However, the matter was remanded to the Primary Authority to re-examine the issue. But, the authorities did not touch the aspect of limitation. Even though limitation is not set up as a ground, the Court can examine the question of limitation at any stage of the proceedings. But, the provisions of Limitation Act, 1963, have no application to the proceedings under Estates Abolition Act, as there is a special rule dealing with limitation in the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari Rules, 1973, framed by exercising power under Section 67 of the Estates Abolition Act vide G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974.
28) According to Rule 2(2) of the Estate Abolition Rules, 1973, any ryot claiming a patta under Section 11(a) of the Estates Abolition Act in respect of ryot lands which immediately before the notified date were property included or ought to have been properly included in his holdings immediately before the notified date, may file an application in writing before the Settlement Officer either in person or by registered post at any time after the notified date but before the ryotwari settlement of the estate is effected under Section 22. Sub-
CJ and MSM,J Wa_292_2019 14 Rule (3) of Rule 2 states that, every such application shall be in the Form appended to the Rules and it shall be signed and verified by the applicant and shall bear a court-fee stamp of the value of rupee one. Sub-Rule (4) further says that, notwithstanding anything in sub-rule (2) but subject to the provision of sub-rule (5), wherein respect of an estate in which the ryotwari settlement under Section 22 has already been effected before the commencement of the Rules, such an application may be filed before the Settlement Officer within thirty days from the date of such commencement. Provided that the Settlement Officer may, condone the delay, if such delay is caused due to the pendency of a dispute in a Court or for good and sufficient reasons shown by the applicant for the delay caused, and thereafter entertain an application fixed before him after said period of thirty days. Thus, thirty days time is the limitation prescribed for filing an application from the date of ryotwari settlement under Section 22 of the Estates Abolition Act.
29) In view of Rule 2(2) of the Estates Abolition Rules, 1973, limitation prescribed for filing an application is only thirty days after effecting ryotwari settlement under Section 22 of the Estates Abolition Act. But, this amendment was brought into force and published in Rules Supplement to Part II of the A.P. Gazette No.29 on 02.07.1974. This rule denuded the ryoths, who did not file their application(s) under Section 11(a) of the Estates Abolition Act for issue of ryotwari patta in their favour under virtually. But, leverage is given to claim condonation of delay under the provisos annexed to Sub-Rule (4) of Rule 2 of Estate Abolition Rules, 1973.
30) As per Section 67(2)(d) of the Estates Abolition Act, the Government is empowered to make rules prescribing the time within CJ and MSM,J Wa_292_2019 15 which applications and appeals may be presented under the Estates Abolition Act, in cases where no specific provision has been made in that behalf. In exercise of this power, the Government of Andhra Pradesh framed the Rules of 1973 which were notified in G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974. Rule 2(4) of the Rules of 1973 originally read as follows:
(4) Notwithstanding anything in sub-rule (2) but subject to the provision of sub-rule (5), where in respect of an estate in which the ryotwari settlement under Section 22 has already been effected before the commencement of these rules, such an application may be filed before the Settlement Officer within thirty days from the date of such commencement.
Provided that the Settlement Officer may, for good and sufficient reasons shown by the applicant, entertain an application filed before him after the period of thirty days aforesaid.
31) Subsequently, G.O.Ms.No.911 Revenue (J) dated 15.08.1983 was issued omitting proviso under Sub-Rule (4) of Rule 2 of Estate Abolition Rules, 1973. Thus, by virtue of this amendment, the power of condoning the delay, provided under the proviso to Rule 2(4), stood omitted. Again in the year 1986, a further amendment was effected to the Estate Abolition Rules, 1973 by the Amendment to the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari Patta Rules, 1973. By way of this amendment, the following proviso was added to Rule 2(4) of the Rules of 1973.
Provided that the Settlement Officer may condone the delay, if such delay is caused due to the pendency of a dispute in a Court or for good and sufficient reasons shown by the applicant for the delay caused, and thereafter entertain an application filed before him after said period of thirty days."
CJ and MSM,J Wa_292_2019 16
32) The above amendment was notified under G.O.Ms.No.551, Revenue (J), dated 19.05.1986 and by way of a further amendment effected under G.O.Ms.No.400, Revenue (JA), dated 24.04.1993, the proviso added in the year 1986 was again omitted.
33) If the applications were submitted and delay was condoned prior to commencement of G.O.Ms.No.911 Revenue (J) dated 15.08.1983, amending the Estate Abolition Rules, 1973, the petitioners are entitled to claim patta. But, it appears that the applications were filed under Section 11(a) of the Estates Abolition Act by these petitioners in the year 2008.
34) The learned single Judge of this Court held that, question of limitation does not arise in a petition filed under Section 11(a) of the Estates Abolition Act, claiming issue of patta. Learned single Judge also referred the judgment of High Court of Andhra Pradesh in Appalanaidu vs. Government of Andhra Pradesh1, where the Court dealt with the limitation and held that, in the absence of any provision being enacted or any, rule being made under the rule making power, prescribing the period of limitation, it would not be open to the Settlement Officer to reject applications filed under Section 11(a) of the Estates Abolition Act, on the ground of limitation. based on this principle, learned single Judge rejected the plea of the State that the claim of these petitioners to make a request for issue of patta under Section 11(a) of the Estates Abolition Act was barred by limitation. In view of the law relied on by the learned single Judge, it is appropriate for this Court to decide the imitation, as it is one of the major ground urged before this Court.
1 1974 (1) An.W.R. 10 CJ and MSM,J Wa_292_2019 17
35) Section 67 of the Estates Abolition Act delegated power to make Rules to the Government without prejudice to the generality of the provision with regard to limitation. Section 67(2)(d) & (e) of the Estates Abolition Act is relevant for the purpose of deciding this issue and it is extracted hereunder for better appreciation of the case:
The time within which applications and appeals may be presented under this Act, in cases for which no specific provision in that behalf has been made herein:
The application of the provisions of the Code of Civil Procedure, 1908, and the Indian Limitation Act, 1908, to applications, appeals and proceedings under this Act.
36) Thus, the Rules made under Section 67 of the Estates Abolition Act, makes only Sections 5 applicable and Section 14 of the Limitation Act are not made applicable. In V. Bhaskar Rao and others vs. M.R.O2 it is held that the Settlement Officer is vested with the power to condone the delay.
37) The Estates Abolition Rules, 1973, were framed under Rule 47 vide G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974, exercising the source of power conferred on the Government under Section 67 (d) &
(e) of the Estates Abolition Act and those Rules still holds good.
Therefore, the principle laid down by High Court of Andhra Pradesh in Appalanaidu vs. Government of Andhra Pradesh (referred supra) has no application. Even the principle laid down in V. Bhaskar Rao and others vs. M.R.O (referred supra) is not applicable to the present facts of the case, in view of G.O.Ms.No.911 Revenue (J) dated 15.08.1983, G.O.Ms.No.551, Revenue (J), dated 19.05.1986, G.O.Ms.No.400, Revenue (JA), dated 24.04.1993 repealing the two provisos annexed to Sub-Rule (4) of Rule 2 of Estate Abolition Rules, 1973. As on and from the date of issue of G.O.Ms.No.911 Revenue (J) 2 2004 (2) ALD (NOC) 12 CJ and MSM,J Wa_292_2019 18 dated 15.08.1983, G.O.Ms.No.551, Revenue (J), dated 19.05.1986, G.O.Ms.No.400, Revenue (JA), dated 24.04.1993, the authorities under the Act are disentitled to exercise power to condone delay and the provisions of Limitation Act, more particularly, Sections 5 and 14 have also no application to the proceedings under the Estates Abolition Act. But the learned single Judge did not advert to the G.Os referred above amending the Rules and based on the principle laid down in Appalanaidu vs. Government of Andhra Pradesh (referred supra), concluded that, there is no limitation for filing applications for issue of settlement patta under Section 11(a) of Estates Abolition Act. The settlement of estate under Section 22 of Estates Abolition Act was made in the year 1959. Therefore, the claim of the petitioners is beyond limitation prescribed under Rule 47 of the Estate Abolition Rules, 1973 read with G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974, G.O.Ms.No.911 Revenue (J) dated 15.08.1983, G.O.Ms.No.551, Revenue (J), dated 19.05.1986, G.O.Ms.No.400, Revenue (JA), dated 24.04.1993. The petitioners or the learned Government Pleader for Revenue might not have brought to the notice of the learned single about omitting the two provisos annexed to Sub- Rule (4) of Rule 2 of Estate Abolition Rules, 1973 by G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974, G.O.Ms.No.911 Revenue (J) dated 15.08.1983, G.O.Ms.No.551, Revenue (J), dated 19.05.1986, G.O.Ms.No.400, Revenue (JA), dated 24.04.1993. Therefore, learned single Judge committed an error in holding that, no time is prescribed to make appropriate applications under Section 11(a) of the Estates Abolition Act for issue of ryotwari patta in favour of the ryoths/claimants. Hence, the finding of the learned single Judge regarding limitation is hereby set-aside, while holding that the claim CJ and MSM,J Wa_292_2019 19 of the petitioners/ respondents herein is hopelessly barred by limitation.
P O I N T NOs.2 & 3:
38) The main grievance of the petitioners before this Court is that, the petitioners‟ ancestors were in possession and enjoyment of the subject land. Later the petitioners came into possession, enjoying in their own right and that the pre-abolition record would clinchingly establish the factum of the predecessors occupation and continue to occupy the land by the petitioners and that the subsequent records, classifying the land as „gayalu‟ in the settlement operation i.e. survey conducted under Section 21 is not the basis to decline the issue of patta under Section 11(a) of Estates Abolition Act in favour of the petitioners. Whereas, learned counsel for the appellant/State would contend that the land was classified as „gayalu‟, but, the writ petitioners based on the Gillman Register claimed patta and the learned single Judge ignored the classification of the land in the survey conducted in the year 1959 and ordered issue of patta under Section 11(a) of the Estates Abolition Act in favour of the petitioners, erroneously.
39) The petitioners are claiming to be ryots, as defined under Section 3(15) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 (hereinafter referred as „Estates Land Act‟) and the land in their occupation i.e. land in different survey numbers referred above is a „ryoti land‟. The word „Ryot‟ is defined under Section 3(15) of the Estates Land Act reads as follows:
"Ryot" means 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.
CJ and MSM,J Wa_292_2019 20 Explanation: A person who has occupied ryoti land for a continuous period of twelve years shall be deemed to be a ryot for all the purposes of the Act. Section 3(16) of Estates Land Act reads as follows: "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."
40) Keeping in view the definition of „Ryot‟ and „Ryoti Land‟, the learned single Judge held that these petitioners are „Ryots‟ and the land under their occupation is „Ryoti Land‟, based on the principle laid down in Dama Kotilingam @ Kotilingaiah vs. Joint Collector, Prakasam District, Ongole and another3, wherein the Court held that, when once the land is ryoti land in an Estate, the rights of the ryot do not get extinguished and the person, who is a ryot, is entitled to a patta and that in regard to ryoti lands is an Estate no right, title or interest of a ryot stands transferred and vest in the Government. In the present case, since there is evidence that the land is ryoti land, it follows that the ryot, whose right is not extinguished, is entitled to a patta.
41) In Lingareddy Ramakrishna Reddy and others vs. Director of Settlements, Hyderabad and others4, the Court dealt with the proposition of law that, prior to the abolition of the Estates under the Act, the lands were transferable and heritable and the legal heirs of the original ryot step into the shoes of the ryot, being the legal heirs. Based on the principle, the learned single Judge concluded that the 3 2003 (1) ALT 1 (DB) 4 1997 (4) ALT 409 CJ and MSM,J Wa_292_2019 21 petitioners being the successors of original ryot, they succeeded the ryoti land and copy of geonology chart of Dulla Family submitted by these petitioners to the Tahsidlar, Parawada Mandal, Visakahaptnam District on 15.01.2017 which is not disputed, is sufficient to conclude that these petitioners are the ryots having succeeded the ryoti land from the unknown ancestors Dolla Errasanyasi (died) original ryot in the Estate of Vizianagaram.
42) Apart from that, the Tahsildar, Parawada Mandal, Visakhapatnam District filed his counter affidavit before the Primary Authority that, an application was made by these petitioners for issue for ryotwari patta under the Estates Abolition Act, making several judicial admissions as to the possession and enjoyment of Dulla Errasanyasi and succeeding the property by these petitioners, their possession and enjoyment of the property subsequent thereto, so also the nature. But, those admissions need not be discussed in detail in the present appeal, as the learned single Judge recorded on the finding that the land is „ryoti land‟ and the petitioners are „ryots‟ and entitled to claim patta under Section 11(a) of the Estates Abolition Act. This finding needs no interference by this Court even after reappraisal of entire material.
43) In fact, the order of the Joint Collector & Settlement Officer, Visakhapatnam dated 02.02.2008 does not show that, in the written statement of the Tahsildar, the relationship is disputed is one of the contentions of the petitioners.
44) One of the major contentions of the appellant/State is that, the land is classified as „gayalu‟ in view of the revenue records after conducting survey under Section 21 of the Estates Abolition Act and placed on record the material to establish such classification recorded CJ and MSM,J Wa_292_2019 22 in the revenue records. No doubt, the classification of the land is recorded as „gayalu‟ which is „Assessed Waste Land‟. The word „gayalu‟ is not defined anywhere, but as per Glossary of Judicial and Revenue Terms by H.H. Wilson, the word „gayal‟ or „gayalu‟ means neglected, left uncultivated as land or land unfit for cultivation.
45) Merely because the land is recorded as „gayal‟ or „gayalu‟, it does not confer any title on the Government, but still, remains as uncultivated or neglected land or land unfit for cultivation. Therefore, mere recording of classification of land as „gayalu‟ would not change its nature from ryoti land to government land. As the learned single Judge relied on the judgment of this Court in Commissioner, Survey, Settlement and Land Records, Hyderabad vs. Indupuru Raghava Reddy and others5, where the Court laid down the proposition that waste land has a well defined legal connotation and that, it means „barren or desolate land‟ which is unfit for use or which is worthless but is not a land which is uncultivated. Thus, it is clear from the record that, merely because the land is classified as „gayalu‟ or „Assessed Waste Land‟, it does not belong to the Government and it remains as a land unfit for cultivation or uncultivated land. The word „ryoti land‟ though defined under Section 3(16) of the Estates Land Act, the High Court of Madras in Gopalaswami Ayyangar vs. Athamanathaswami Devasthanam6 concluded that, once the lands are ryoti lands, the lands remain so unless there was a conversion into private lands; and that the recognized categories of lands in an Estate are either private lands or ryoti lands and that in an Estate, there will not be any Government lands. If, this principle is applied to the present facts of the case, 5 2012 (2) ALD 164 (DB) 6 1956 Law Suit (Mad) 335 CJ and MSM,J Wa_292_2019 23 when the land was undisputably part of Vizianagaram Estate, that can never be treated as a government land, though it is allegedly classified as „gayal‟ or „gayalu‟ i.e. uncultivable land or land unfit for cultivation after survey under Section 21 of the Estates Abolition Act.. Still, it was part of estate and the government cannot claim any right, in view of the law laid down by the Madras High Court in the judgment referred above.
46) Apart from that, rough patta was granted by the Tahsildar in favour of the petitioners‟ ancestors for the land in dispute after verification and the now the petitioners are continuing in possession and enjoyment of the property. When a rough patta was issued, they are deemed to be in possession and enjoyment of the property cultivating the same.
47) Similar question came up for consideration before the Division Bench of High Court of Andhra Pradesh in Mandal Revenue Officer, Visakhapatnam (Rural) vs. Kanchubriki Parvathamma7, where the Court held that rough patta that was granted to the ancestors of the parties in that case clearly reflected a link between it; and, hence the contention that the rough patta in that case is unconnected with Section 11 of the Estates Abolition Act was not countenanced.
48) In Ramji Ram and others vs. Bansi Raut and others8 , the High Court of Patna had an occasion to deal with the meaning of zeroiti land and private land and held that „zeroiti‟ means proprietor‟s private land and that the entries in the record of rights that the lands are zeroiti shall be presumed to be correct until the contrary is provided.
7 2009 ALT (Rev.) 131 (D.B) 8 1925 Patna 241 CJ and MSM,J Wa_292_2019 24
49) In the case on hand, no record is produced to show that the subject land is not a ryoti land but converted into gayalu in the survey under Section 21 of the Estates Abolition Act and it belongs to the government. The survey conducted under Section 21 is a part of settlement operations and that, merely because the classification is recorded as „gayalu‟ it would not change the nature of the land. Therefore, the land in dispute in different survey numbers as stated above is only ryoti land and the pre-abolition record, more particularly, the Gillman‟s Register prepared in the year 1904 would clinchingly establish that these petitioners‟ ancestors were in possession and enjoyment of the land and also cultivating the same. Thereafter, their successors and presently the petitioners are cultivating the ryoti land in the estate. As long as settlement operations are not completed or finalized, the land vests on the Government and the ryot who is actually cultivating the land is entitled to claim ryotwari patta under Section 11(a) of the Estates Abolition Act. The learned single Judge rightly held that the petitioners and their ancestors were ryots, as defined under Section 3(15) of the Estates Land Act and land in their occupation in different survey numbers is co-relating to the old survey numbers is a ryoti land, as defined under Section 3(16) of the Estates Land Act.
50) On overall consideration of the material available on record, including the findings recorded by the learned single Judge, it is evident that the land in their occupation is a ryoti land and the petitioners are ryots. Consequently, the petitioners satisfied the requirement under Section 11(a) of the Estates Abolition Act for issue of ryotwari patta in their favour after settling the estate under the Estates Abolition Act.
CJ and MSM,J Wa_292_2019 25
51) The scope of interference in intra-Court appeal under Clause 15 of the Letters Patent Act is limited, unless the findings recorded by the learned single Judge are perverse or arbitrary. In "Seshaiah vs. South Central Railway9", it was held that in an intra-Court appeal interference in the order of the learned single Judge is not as a matter of course and substitute its opinion except where the discretion has been shown to have been exercised arbitrarily.
52) In view of the law declared in the said judgment, the jurisdiction of the Division Bench of this Court in intra-Court appeal is limited. Hence, we find no ground to interfere with the findings recorded by the learned single Judge as to the nature of ryoti land and status of these petitioners as ryots. Accordingly, Point No.2 is answered in favour of the petitioners/respondents herein and against the State.
P O I N T No.3:
53) One of the major contentions of these petitioners is that, they are ancestors were in possession and enjoyment of the property prior to pre-abolition and the pre-abolition record clinchingly established that they were in possession and enjoyment of the property as in the year 1404 i.e. Gillmans Register, where Gillmans Register was prepared after conducting survey. Thus, it means the ancestors of the petitioners were in occupation and cultivating the subject land and thereafter, the petitioners succeeded the land, being the legal heirs, as held in Division Bench of High Court of Andhra Pradesh in Mandal Revenue Officer, Visakhapatnam (Rural) vs. Kanchubriki Parvathamma (referred supra). When the land is ryoti land and these 9 (2019) 6 ALT 84 CJ and MSM,J Wa_292_2019 26 petitioners are ryots and cultivating the same, they are entitled to claim patta under Section 11(a) of the Estates Abolition Act, as the pre-abolition record prior to the notified date i.e.1945, their ancestors were in possession and succession of the land by these petitioners, being the legal heirs and cultivating the same continuously in possession and enjoyment as on the notified date. Hence, the petitioners are entitled to claim ryotwari patta under Section 11(a) of the Estates Abolition Act, subject to limitation prescribed under Rule 47 of the Estate Abolition Rules, 1973, as discussed in Point No.1.
54) In view of our foregoing discussion on Point Nos. 1 to 3, we hold that the claim of these petitioners is hopelessly barred by limitation, in view of Rule 47 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Grant of Ryotwari Rules, 1973 read with G.O.Ms.No.50, Revenue (J-1), dated 16.01.1974, G.O.Ms.No.911 Revenue (J) dated 15.08.1983, G.O.Ms.No.551, Revenue (J), dated 19.05.1986, G.O.Ms.No.400, Revenue (JA), dated 24.04.1993 though the petitioners are the ryots in occupation of ryoti land, as defined under Section 3(15) and Section 3(16) of the Estates Land Act, since the learned single Judge did not consider the aspect of limitation in proper perspective.
55) In the result, writ appeal is allowed only on the ground of limitation, holding that, the claim of the writ petitioners/appellants herein is barred by limitation. No costs.
56) Consequently, miscellaneous petitions pending, if any, shall also stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY,J Ksp/SP