Andhra HC (Pre-Telangana)
The State Of Andhra Pradesh,Rep. By ... vs Kothacheruvu Plantations And ... on 17 April, 2014
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
A.S.No.507 of 1995
17-04-2014
The State of Andhra Pradesh,Rep. by District
Collector,Chittoor.Appellant/Plaintiff
Kothacheruvu Plantations and Industries Pvt. Ltd.,No.12, Kungabakkam High
Road,Madras 600 034 and othersRespondents/Defendants
Counsel for Appellant/Plaintiff:Sri Y. Chandrasekhar,
Learned Special GP appearing for
the Office of the Advocate General,
for the State of A.P.
^Counsel for the 1st Respondent/
5th Defendant:Sri K.V. Nageswara Rao;
Counsel for Respondent Nos.7 10:Sri E. Manohar,
Senior Counsel appearing for
A. Chandrayya Naidu; &
Counsel for 11th respondent :Smt. B. Neeraja Sudhakar Reddy
Counsel for other parties :Sri M.V.S. Suresh Kumar, for Sri
A.Subba Reddy.
Sri K.S.Gopal Krishnan
Sri P.Ganga Rami Reddy
<GIST:
>HEAD NOTE:
? Cases referred:
1. See Krishna Yachendra Vs. Ramanujulu ..AIR 1942 Madras 56
2 Unide Rajaha Raja Bommarauze Bahadur Vs. Pommaswamy Venkatadri Naidu.7
MIA
128.
3. per Sounder Raja Ayyangar pgs.275-276
4 per Sounder Raja Ayyangar, at pgs.125 and 126
5 ILR 41 MADRAS 624 = AIR 1922 PC 168
6 AIR 1957 AP 258(DB)
7 1952 (2) MLJ 314
8 AIR 1956 SC 94
9 Raheja Universal Ltd. Vs. NRC Ltd.(2012) 4 S.C.C. 148 para 100
10 AIR 1997 Rajasthan 10
11. AIR 1972 Rajasthan 152
12. (2003) 3 S.C.C. 472
13. AIR 1977 S.C. 1701
14. 2007 (4) ALT 421
15. Common Judgment dt.31-10-2007 in C.C.C.A.No.134 of 2004 and 99 of 2005
16. (1996) 6 S.C.C. 660
17. (2009) 10 SCC 273
18. 1998 (2) ALT 513 (D.B.)
19. (1913) 24 MLJ 659 : 20 IC 769 : 1913 M W N 782
20. AIR 1957 AP 258
21. AIR 1960 SC 808
22. AIR 1954 SC 340
23. (2013) 10 SCC 136
24. AIR 1966 AP 121
25. AIR 1995 SC 2187
26. (1998) 3 SCC 331 at p.335
27. 2003 (1) SCC 506
28. (2013) 5 SCC 427
29. AIR 1989 SC 617
30. AIR 1971 AP 281
31. AIR 2004 AP 66
32. 1970 (1) SCC 613
33. 1987 (2) SCC 228
34. 1988 (2) SCC 142
35. 1973 (1) APLJ 388 (DB)
36. 1991 Supp (2) SCC 228
37. 2003 (8) SCC 134
38. 2004 (3) ALT 731 (D.B.)
39. 2008 (4) ALT 818
40. AIR 1964 SC 807
41. 2012 (4) ALT 16 (DB)
42. 1972 (1) An.W.R. 396
43. (1998) 6 SCC 538
44. (2011) 12 SCC 658
45. (2011) 10 SCC 1
46. 2009 (6) ALT 221
47. (2013) 9 SCC 319
THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
ASMP.Nos.152 of 2008, 2157 of 2010 and 3172 of 2012
In/And
A.S.No.507 of 1995
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
ASMP.Nos.152 of 2008, 2157 of 2010 and 3172 of 2012
In/And
A.S.No.507 of 1995
JUDGMENT :
This appeal is filed by the State of Andhra Pradesh challenging the judgement and decree dt.7.8.1994 in O.S.No.52 of 1985 of the Subordinate Judge, Srikalahasti in Chittoor District. The subject matter of this appeal is an extent of about 1500 acres of land known as Kothacheruvu Kandriga (for brevity, KCK) near Gudimallam village in the district of Chittoor. It earlier formed part of the Zamindari of Srikalahasti. The said Zamindari formed part of the erstwhile Madras Presidency and was controlled by the Nawabs of Arcot.
THE GRANT OF KCK IN 1786 A.D AND ITS GIFT TO DEITIES OF PERUMBUDUR TEMPLE IN 1863 A.D
2. In 1786 A.D., KCK was granted by the then Zamindar of Srikalahasti to Sri Ramanuja Kootam Koil Veeraraghavaswami and his brother Ayyappa as a personal grant without burden of payment of jodi or rendering of any service.
3. The grantees in turn gifted KCK to Adikesava Perumal and Bhashikarla Swami Devasthanam, Sriperumbudur under a registered gift deed dt.04-03-1863.
THE PERMANENT SETTLEMENT REGULATION XXV OF 1802
4. The Marquis of Cornwallis, the then Governor General of India initiated what came to be known as permanent settlement. The said term meant settlement in perpetuity of the government demand with the intermediate class of persons such as Zamindars. In 1799, positive orders were sent from England that Lord Cornwallis scheme was to be adopted throughout the Madras Presidency. Lord Wellesley, who succeeded him as Governor General directed the commencement of operations on the lands of the East Coast of India. Regulation XXV of 1802 was passed for carrying out the purposes of the permanent settlement. It conferred proprietary right in the soil on the Zamindars. The effect of the permanent settlement was to convert the precarious tenure previously held by Zamindars into a permanent one to give them a right to hold their estates forever on a fixed peishkush payable to the British Government with heritability and transferability. By virtue of the grant by the Government in favour of the Zamindar under the permanent settlement, the latter got a prima facie title to all lands lying within the geographical limits of their Zamindaris. Peishkush is the assessment fixed at the time of the permanent settlement payable by the Zamindar to the government. On the fixing of such assessment, the Zamindar was granted a sanad- i-milkiyat-i-istimrar or deed of permanent property in which the conditions and articles of the tenure are entered, and he is required to execute a corresponding kabuliat. Any dispute regarding assessment is regulated by the Sanad and the kabuliat. The assets or income of the Zamindari were taken into account for the purpose of arriving at the assessment payable to the Government i.e. peshkush. The policy of the East India Company at the time was to take away from Zamindars, the rights which according to modern western notions could only be exercised by the Sovereign power and to leave them only such rights as could be exercised by a private proprietor. Therefore on establishment of permanent settlement, it was made a fundamental condition that Zamindars should no longer be suffered to keep a military force and that preservation of general order and public tranquillity should henceforth be vested solely in government and civil authorities to whom under its control and direction the public safety was vested.
KCK BEING A GRANT OF 1786 A.D IS A PRE-SETTLEMENT MINOR INAM HAVING BEEN GRANTED BEFORE 1802
5. It is necessary to refer to the background of grants made by the Zamindars prior to permanent settlement of 1802 and as to how the income therefrom was dealt with at the time of permanent settlement while fixing the peishkush payable by the Zamindar to the Company. There are two categories here as mentioned in paras 7 and 8 below.
6. Grants made before the permanent settlement were called pre settlement inams. KCK is one such pre settlement inam as it had been granted in 1786 A.D. by the Zamindar/Rajah of Srikalahasti prior to 1802.
7. Generally pre settlement grants/inams in Madras Presidency were excluded from the assets of the Zamindari for the purpose of fixing the peishkush or assessment payable by the Zamindar to the government, the jodi payable to him by the ryots being alone included. The Permanent Settlement of 1802 having been made exclusive of alienated lands, pre settlement inams as they are normally called, the Zamindars connection with them ceased then. Section 12 of Regulation XXV of 1802 distinctly stated that it is not competent to a land holder to resume beneficial grants such as lakhiraj lands (lands exempt from the payment of public revenue and of all other lands paying only favourable rents) . The result of this was that such grants were thereafter regarded as held by the grantees under the Government subject to its right of resumption on valid grounds, and they were dealt with on that footing at the time of the subsequent inam settlement when they were enfranchised by the Government relinquishing its right of reversion in lieu of a fixed annual payment called quit rent. In respect of such alienated lands, Inam Commissioner was appointed under Inam Rules, 1859 to examine the history of such cases and grant title deeds and therefore, the title deeds in respect of such lands reflected the right of resumption vested solely with the Government and not with Zamindars. The jodi, however, continued to be payable to the Zamindar as before but it was no longer indicative of the Zamindars ownership and the grantees under tenure of the grant.
8. But where their full rental including that of the inams has been included in the assets of the Zamindari at the time of the permanent settlement for the purpose of computing peishkush, the Zamindar would be the owner of pre settlement inams also.
9. Inams granted by the Zamindar subsequent to the permanent settlement are known as post settlement or darmilla inams (the term darmilla in Telugu language meaning subsequent i.e., subsequent to Permanent Settlement, 1802).
10. The right of resumption in both these classes of inams (para 8 and 9) was in the Zamindar and the Government had no right to resume them.
11. In the monumental work Land Tenures in the Madras Presidency by Sri Sounder Raja Ayyangar, an authority on land tenures in the Madras Presidency, the celebrated author also notes that in relation to Venkatagiri, Kalahasti and Karvetinagar, a special formula was followed in 1802, the peishkush was simply an equivalent for the military services rendered by them without reference to assets; that their peishkush was a proportion of the cost of the zamindars military establishment inclusive of amarams and kattubadis diminished by the amount of revenue derived from salt, sayer and abkari which were reserved to government. Thus the inams granted by the Zamindar before 1802 remained under the Zamindar for these palayams.
12. In another important reference book on the subject written by another renowned author Sri V.Vedantachari, Advocate on the Madras Estates Land Act (I of 1908) (1947 edition), also it was stated that in case of the four western palayams the Zamindaris of Venkatagiri, Kalahasti, Karvetinagar and Sydapur, the peishkush was fixed on the basis of a commutation of the military services subject to which the zamindaris were originally held and it is further stated that agraharams and other inam villages were thus not excluded from the Zamindaries by the settlement and that the government had no right of reversion in such inams comprised in the Venkatagiri Zamindari. THE MADRAS ESTATES LAND ACT, 1908 :
13. The Madras Estate Land Act, 1908 was enacted to define the substantive rights and liabilities of landholders and ryots and makes a general declaration of the existence of an occupancy right in the ryot. The term ryot was defined as 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.
14. The term estate was originally defined as meaning :
(a) any permanently settled estate or temporarily settled Zamindari;
(b) any portion of such permanently settled estate or temporary settled Zamindari which is separately registered in the office of the Collector;
(c) any unsettled palaiyam or jagir;
(d) any inam village of which the grant has been made, confirmed or recognized by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees;
(e) any portion consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c) which is held on a permanent under tenure.
THE ORDER DT.10.7.1911 OF THE INAM DY.COLLECTOR CONFIRMED THE GRANT OF KCK TO THE DIETIES AS STATED IN EXTRACT OF REGISTER OF INAMS (Ex.A5) :
15. The Inam Deputy Collector by an administrative order on 10-07-1911 confirmed the grant of KCK in the name of God Sri Bhashikarlaswami of Sriperumbudur with a quit rent of Rs.4-12-0 mentioning that the jodi payable to the Zamindar was nil. The Register of Inams filed by the plaintiff/State ie. Ex.A-5 mentions these facts.
16. But it is contended by the State of Andhra Pradesh placing reliance on the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri and two other judgments one of the Madras High Court in Krishna Yachendra (7 Supra) and another of the then Andhra High Court in Madras (now Andhra) State v. Sri Kalahasteeswara Swamy Temple and another , that KCK was not an out and out grant; that at the permanent settlement of Kalahasti Zamindari, the peishkush payable by the Zamindar was not fixed upon the computation of the income from the assets of the Zamindari but on the basis of commutation of the military service subject to which the Zamindari was held; minor inams such as KCK were not excluded from the Zamindari by the Settlement; and the Government had no right of reversion in such inams comprised therein. It therefore contended that the State and its officers such as the Inam Dy.Collector had no authority to conduct any inquiry under the Permanent Settlement Regulation XXV of 1802 in regard to KCK. THE MADRAS ESTATES ABOLITION AND CONVERSION INTO RYOTWARI ACT, 1948 :
17. The Madras Estates Abolition and Conversion into Ryotwari Act, 1948 (for short, Act XXVI of 1948) was enacted to provide the repeal of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the State of Madras and the introduction of ryotwari settlement in such estates. This was done as it was noticed that in many estates in the Province of Madras, the rent levied by the landholder from his ryots was substantially in excess of the assessments charged by the Government on similar land in the neighbouring ryotwari area and was beyond the capacity of the ryots to pay; that the Zamindari system had perpetuated an assessment which had no relation to the productive capacity of the land and had led to loss of contact between the Government and the actual cultivator and had acted as a brake in regard to agricultural improvement; Peasantry was at the mercy of unscrupulous agents and there was acute discontent among estate ryots and they also agitated for their rights.
18. This Act applied to all estates as defined in Section 3 (2) of the Madras Estates Land Act, 1908. Section 1 (4) thereof stated that the said section and sections 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68 shall come into force at once; and the rest of the Act shall come into force in regard to any Zamindari, under tenure or inam estates, on such date as Government may, by notification, appoint. Section 1 (5) states:
1. Short title, extent, application and commencement:-
3[(5) The Government may, by notification, cancel or modify any notification issued under sub-section (4) in respect of any estate, but the cancellation shall not be deemed to affect the power of the Government under sub-section (4) again to extend the rest of this Act to that estate, 4[and the notification issued under sub-section (4) may be issued so as to have retrospective effect].
19. As to the consequences of notification of an estate under this Act, Section 3 thereof insofar as it is relevant states:
3. Consequences of Notification of estates:-
With effect on and from the notified date and save as otherwise expressly provided in this Act--
(a) the Andhra Pradesh (Andhra Area) Permanent Settlement Regulation, 1802, the Estates Land Act, and all enactments applicable to the estate as such except the Andhra Pradesh (Andhra Area) Estates Land (Regulation of Rent) Act, 1947, shall be deemed to have been repealed in their application to the estate;
(b) the entire estate (including [minor inams (post-settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate; all communal lands and porambokes]; other non-ryoti lands; waste lands; pasture lands;
lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works, fisheries'; and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances; and the Andhra Pradesh (Andhra Area) Revenue Recovery Act, 1864, the Andhra Pradesh (Andhra Area) Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate;
(c) all rights and interests created in or over the estate before the notified date by the Government cease and determine;
(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to that estate which the Government may require for the administration thereof:
20. Section 9 provided for determination of inam estates by a Settlement Officer and empowered him to decide whether any inam village (or hamlet or kandriga granted as inam) in his jurisdiction was an inam estate or not. Section 10 entitled to Settlement Officer to determine whether an under tenure estate was created before or after the date on which the principal estate was permanently settled. Section 11 enabled every ryot in an estate, with effect on and from the notified date to obtain a ryotwari patta. Sections 12, 13 and 14 dealt with the entitlement of a landholder in a Zamindari estate, an inam estate, an under tenure estate to get a ryotwari patta. Section 15 provided for the procedure to be followed by the Settlement Officer in determining the rights of the landholder. Section 16 declared that every person, whether a landholder or a ryot, who becomes entitled to a ryotwari patta under this Act, in respect of any land shall, with effect on and from the notified date be liable to pay to the Government such assessment, as may be lawfully imposed on the land. The Act provided for survey and settlement of estates and the determination of the compensation payable to the landholder.
KCK NOTIFIED UNDER SECTION 1(4) OF ACT XXVI OF 1948 ON 6.10.1952 AS AN UNDERTENURE ESTATE WHICH WAS QUASHED IN W.P.NO.792 OF 1952 BY THE HIGH COURT SUBJECT TO THE DECISION OF THE SUPREME COURT IN ANOTHER CASE FINDINGS NOT THEREFORE FINAL :
21. After the above Act was passed, the then State of Madras notified Kalahsati Estate as taken over on 3.9.1952. Among others, KCK was also described as under-tenure Estate and notified under Section 1(4) of the Act in G.O.No.427 dt.06.10.1952 by way of publication in Fort St. George Gazette at pages 1491-92 dt.15.10.1952.
22. This was questioned in W.P.No.792 of 1952 on the file of the High Court of Andhra Pradesh by two persons claiming to be lessees of KCK. They contended that KCK formed part of Gudimallam Village and as it was a minor Inam, it did not vest in the Government since it was not an Estate within the meaning of the said term under the provisions of the Madras Estates Land Act, 1908 or Madras Estates Abolition and Conversion into Ryotwari Act, 1948 (Act XXVI of 1948). That it was a minor Inam and not a grant of the whole village as alleged by the petitioners was not specifically denied by the Government in the counter-affidavit filed on its behalf. The Government asserted that it was a village forming part of the Zamindari Estate of Andanalagunta group consisting of 66 villages. THE ORDER DT.12.9.1955 IN W.P.NO.792 OF 1952 :
23. By judgment dt.12.09.1955, the said Writ Petition was allowed by the High Court of Andhra at Guntur , and the notification No.426 insofar as KCK was concerned, was quashed. The Court held, placing reliance on an order of the Inam Dy. Collector dt.22.10.1909, that KCK was a Khandriga, that the original grant therefore was not a whole village and the notification No.426 issued by the Government treating it as a permanent under-tenure is liable to be quashed. It observed that the questions (a) whether this Inam is to be treated as a part of the Zamindari Estate of Andanalagunta Estate and (b) whether the notification issued under Section 3 (2) (a) is valid, would arise for consideration; that the above proceedings of the Inam Dy. Collector establishes that the grant in the name of God Sri Bhashikarlaswamy of Sri Perambudur shows that it was an out and out grant and therefore it was no longer part of the Zamindari Estate. It held that the Government, having enfranchised the Inam and imposed Kattubadi or quit rent thereon, the notification issued under Clause (a) of Section 3 (2) of the Act XXVI of 1948 was also liable to be quashed. The High Court also followed the decision in Srinivasa Ayyangar v. State of Madras and held that Section 20 of Act XXVI of 1948 was also attracted and since the landholder had created an interest in the land by way of lease in 1935 before the notified date, such interests are saved by Section 20; that minor Inams granted prior to the said Act by the Zamindar are protected and they do not vest in the Government under Section 3 (b) of the said Act along with the entire Estate when such Estate is notified, and the notification issued by the Government treating it as part of the Estate is not valid. It however took note of the fact that an appeal had been preferred to the Supreme Court of India against the decision in Srinivasa Ayyangar (19 supra) and observed :
If the appeal preferred by the Government is allowed and if they are entitled under the provisions of the Abolition Act to notify the same, it is open to them to do so.
THE DECISION OF THE SUPREME COURT :
24. The appeal to the Supreme Court against the judgment in Srinivasa Ayyangar (19 supra) was decided a month thereafter, on 21.10.1955 in a decision reported in The State of Madras v. Srinivasa Ayyangar .
25. That case related to 1/16th share in the village of Karuppur situated within the ambit of the Zamindari of Ramanathapuram and which had been granted by Rani Mangaleshwari subsequent to the Permanent Settlement in 1802. Thus, it was a case of darmila or post-
settlement grant/Inam. The Ramanathapuram Estate was notified under Section 1 (4) of the Madras Act XXVI of 1948 on 22.08.1949 from 07.09.1949 and among the villages mentioned as comprised in the said Zamindari was Karuppur (Part). It was not disputed that the part referred to in the notification was the 1/16th part in the said village. The respondent contended that as the grant in question related only to a fraction of a village, it could not be notified as an under- tenure, as under Section 3 (2) (e), an under-tenure would be an Estate only if it related to a whole village or villages. The Government conceded that the Inam in question was not an under-tenure as defined in Section 3 (2) (e) as it comprised only part of a village, but contended that even though it was not in itself an Estate, it was nevertheless, part of the Zamindari of Ramanathapuram, being a post- settlement grant of a portion of a village comprised therein, and that when that Estate was notified, the entirety of it including the Inam in question must vest in the Government under Section 3 (b) of the Act. The respondent refuted this contention and also contended that even if post-settlement minor Inams were within the operation of the Act, they would still be protected by Section 20 of the Act; that a post- settlement minor Inam would be a right in land created by landholder falling within Section 20; the notification of the Estate under Section 1 (3) would not ipso facto divest the Inamdar of his title to the lands; and that he would be entitled to hold them subject to any action that might properly be taken under Section 20. The Madras High Court had upheld such a contention of the respondent.
26. But the Supreme Court disagreed with the Madras High Court and held that the question to be considered is whether post-settlement minor Inams were parts of the Estate out of which they were granted and if they were, then they would vest in the Government under Section 3 (b) and if not, they would be unaffected by the notification of the parent Estate. It held that under Section 2 (8) of Act XXVI of 1948, the term landholder is defined as including a darmila Inamdar also and since darmila Inamdars were owners of parts of an Estate, even if the darmila Inam did not relate to the entire village but only to a fraction of it, it still retains its character as part of the Estate in the hands of the Inamdars, and when the Estate is notified under Section 1 (4) of the Act, the darmilla Inam will also vest in the State under Section 3 (b). It also held that such post-settlement minor Inams do not fall within Section 20 because if they were to fall under Section 20, the title thereto would continue to stand in the Inamdar which is inconsistent with the view that the darmila minor Inam is part of an Estate and would vest in the Government under Section 3 (b). THE CONSEQUENT NOTIFICATION DT.6.6.1957 TREATING KCK AS AN INAM ESTATE WITHIN KALAHASTI ZAMINDARI :
27. Drawing strength from the observations in the judgment dt.12.09.1955 in W.P.No.792 of 1952 of the High Court of Andhra at Guntur extracted in para.23 supra and the subsequent reversal in the Supreme Court of the decision of the Madras High Court in Srinivasa Ayyangar (19 supra), the State of A.P. published a notification in the Andhra Pradesh Gazette of 6.6.1957, Ex.A.1. It stated :
MADRAS ESTATES (ABOLITION AND CONVERSION INTO RYOTWARI) ACT- ERRATUM TO NOTIFICATION.
[Memorandum No.1122. J/56, Revenue, 24th May 1957] No.221 Irratum.- In the schedule to the Revenue Department Notification No.427, dated 6th October 1952, published at pages 1491-1492 of Part I of the Fort St.George Gazette, dated the 15th October, 1952 as subsequently amended appointing the date on which certain provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), shall come into force in certain under-tenure estates in Chittoor district, the entry 23 KOTHACHERUVU KHANDRIGA (also called KOTHACHERUVU near GUDIMALLAM) shall be deleted .
Note.- Kothacheruvu Kandriga (also called Kothacheruvu near Gudimallam) is not an undertenure estate but is a pre-settlement minor inam included in the assets of the unregistered portions of Kalahasti Zamindari in Chittoor district and is deemed to have already been taken over by the Government along with the main zamin estate on 3rd September 1952 under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. It is now omitted from the notification, as it was wrongly treated as an under- tenure estate and notified as such under sub-section (4) of section 1 of the Act.
P.V.V.VARMA, Assistant Secretary to Government.
28. It is contended by the State that this Note in the above notification was obviously issued relying on the judgment of the Privy Council in 1922 in Secretary of State v. Rajah of Venkatagiri (17 supra) ; that it overrides the view of the Inam Dy.Collector dt.10.7.1911 (treating KCK as an outright grant and as if the income for KCK was not included in the assets of the Zamindari at the time of the Permanent Settlement in 1802) ; and that the said administrative decision is not correct. The validity of Ex.A.1 is one of the issues to be decided in this case.
THE GOVERNMENTS SCHEME DT.7.6.1961 IN RESEPCT OF TAKEN OVER ESTATES IN KALAHASTI INCLUDING KCK AS PART OF KALAHASTI ESTATE TAKEN OVER ON 3.9.1952 :
29. Thereafter, G.O.Ms.No.997 Revenue Department dt.07.06.1961 (Ex.A.13) was issued by the Government of Andhra Pradesh approving the scheme report of the Settlement Officer, Nellore for the introduction of settlement rates in the taken over Zamin and under- tenure Estates in Kalahasti Taluq, Chittoor District. It was set out in the said G.O. that for the information of the public, it is notified that Ryotwari Settlement in accordance with notification issued under Section 22 of Act XXVI of 1948 (and approved in G.O.Ms.No.2617 Revenue dt.14.12.1959 and published at pgs.97 to 109 of Part-I of the Andhra Pradesh Gazette dt.28.01.1960) would be given effect to in the taken over Estates specified in the Schedule which was located in Kalahasti Taluq of Chittoor District with effect from 01.07.1961. In the schedule to this notification Entry-91 stated as under :
91.
23. Kothacheruvu Khandriga (Also called Kothacheruvu Zamin near Gudimallam) Originally notified as U.T. Estate of Andanalagunta group estates in Govt.
memo 41008/52 Rev. dt.6-10-52 published at pp.1490 to 1492 of part I F.S.G.G.15-10-52 and subsequently amended and treated as presettlement minor inam included in the assets of the unregistered portion of the Kalahasti Zamindari i.e. the zamin in Govt. Memo. No.1122 J/57 dt.25-5-57 published at p.1053 part I of FSGG dt.6-6-57.
30. The State Government contends that the order clearly indicates that Ryotwari Settlement proceeding were also undertaken under the provisions of Act XXVI of 1948 in respect of KCK, treating it as a taken over estate along with the main Zamindari of Kalahasti on 3.9.1952. This notification was not only in respect of KCK but also in regard to another 195 Zamindari Estates and 208 under-tenure Estates. The State contends that by the notification dt.6.6.1957 and its Note, under Act XXVI of 1948 and inclusion of KCK in the Government scheme of 7.7.1961 (treating it as pre-settlement minor inam whose income were included in the assets of the Kalahasti Zamindari in 1802), KCK stood taken over as an estate along with main Kalahsati Zamindari which was taken over on 3.9.1952.
THE ANDHRA PRADESH (ANDHRA AREA) INAMS (ABOLITION AND CONVERSION INTO RYOTWARI) ACT, 1956 :
31. In the meantime, the State of Andhra Pradesh enacted Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short, Act XXXVII of 1956). This Act was passed to provide for the abolition of all minor Inams including charitable and religious and service Inams. Its object was to abolish and convert the Inam lands in a ryotwari or zamindari village into ryotwari lands.
32. Section 2 (c) of this Act (omitting the amendment thereto which is not relevant) defined the term Inam land as : Inam land means any land in respect of which the grant in inam has been made, confirmed or recognized by the Government, but does not include an inam constituting an estate under the Madras Estates Land Act, 1908 (Madras Act I of 1908). So a non-estate inam only is governed by Act XXXVII of 1956.
33. Section 2 (d) of this Act defined the term Inam village as :
Inam village means a village designated as such in the revenue accounts of the Government; and includes a village so designated immediately before it was notified and taken over by the Government under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948.
34. Section 3 thereof, to the extent relevant states :
3. Determination of inam lands : --
(1) As soon as may be, after the commencement of this Act, the Tahsildar may suo motu and shall on application enquire and determine --
(i) whether a particular land in his jurisdiction is an inam land.
(ii) whether such inam land is in ryotwari, zamindari or inam village;
(iii) whether such inam land is held by any institution.
35. Section 4 provided that in the case of an inam land in an inam village (a) if such land is held by an institution on the date of commencement of the Act, such institution shall be entitled to a ryotwari patta in respect of that land; (b) if such land is held by inamdar other than an institution on the date of commencement of the Act, and he is in actual possession on that date, the tenant who is declared to be in occupation of that land on 07.01.1948, by the Revenue Court under Section 5 (3) or by the Collector under Section 5 (5), as the case may be, shall be entitled to a ryotwari patta for 2/3rd share of that land and the Inamdar would be entitled to a ryotwari patta for the remaining 1/3rd; and (c) if such land is held by an inamdar other than an institution on the date of commencement of the Act, but is in the occupation of the tenant on the said date, the tenant who is declared to be in occupation of that land on 07.01.1948 by the Revenue Court or the Collector would be entitled to a ryotwari patta for 2/3rd share of that land and the inamdar would be entitled to a ryotwari patta for the remaining 1/3rd.
36. Section 7 provided for enquiry into grant of a ryotwari patta by the Tahsildar either suo motu or on an application by a person or an institution.
37. Section 8 however conferred permanent right of occupancy on tenants in occupation of an inam land held by an institution in an inam village.
38. Section 12 directed that every person or institution receiving a ryotwari patta under the Act in respect of an inam land, with effect on and from the date of the grant of the ryotwari patta, be liable to pay to the Government, ryotwari assessment.
39. Section 14 barred the jurisdiction of civil court to set aside or modify any decision of the Tahsildar, the Revenue Court or the Collector under the Act, except where such decision was obtained by misrepresentation, fraud or collusion of parties.
40. By amending Act XX of 1975, Section 14 A was introduced which enabled the Board of Revenue to suo motu or on application made to it, to revise orders passed by the Tahsildar, the Revenue Court or the Collector under the Act.
41. Thus, as stated in Section 2(c) , Act XXXVII of 1956 would apply only to such inam lands which do not constitute an estate under the Madras Estates Land Act, 1908. If it is an estate under the Madras Estates Land Act, 1908 then Act XXVI of 1948 alone would apply and not Act XXXVII of 1956.
42. The critical questions to be examined in the appeal is whether KCK is a land governed by Act XXVI of 1948 or Act XXXVII of 1956 and whether the jurisdiction of the civil court can be invoked by the State which has filed the present suit.
43. Chronologically, reference must be made to another amendment in 1959 to the Act XXVI of 1948 by the A.P.State Legislature with retrospective effect and overriding previous judgments by declaring that all pre-settlement and post-settlement inams must be deemed as taken over along with the main estate. This will be dealt with later under point 3.
THE GOVERNMENT MEMO DT.13.02.1968 TREATING KCK AS A MINOR INAM WHICH WAS NOT AN ESTATE :
44. A memorandum No.3082-67/26 dt.13.02.1968 was issued by the Government of Andhra Pradesh, Revenue Department (Ex.B.16) and a portion of it was published in the Chittoor District Gazette dt.25.11.1975 (Ex.B3/B.7). It states :
Sub:- Forests Chittoor District Kalahasti Taluk Kothacheruvu Khandriga village Determination Tenure extent and rights of the lesses etc., - Orders issued.
Ref:..
The Government have carefully examined the matter and they observe that it is clear that Kothacheruvu Kandriga is a minor Inam situated in a Zamindari and that it is attracted by the provisions of the Andhra Pradesh Inams (Abolition and Conversion into Ryotwari) Act, 1956. Under Section 4(1) of the Act, in the case of Inam land in a Zamindari village the institution (religions) holding such land on the date of commencement of the Act i.e., 14.12.1956 shall be entitled to a ryotwari patta in respect thereof. The institution which now holds the inam land in Zamindari estate of Kalahasti, is therefore, entitled to ryotwari patta in respect of the Kandriga. In view of this, the question of granting Taddic allowance under section 38, granting a ryotwari patta under section of 15 or 17 recognising rights if any, of the lessees under section 20 or administering the Kandriga under section 22 or 23 of the Estates Abolition Act may not arise.
2. The Board of Revenue is requested to take for issue a ryotwari patta to the institution viz., the Devasthanam of Sri Perumbudur Temple.
45. From the above it is clear that this Memorandum dt.03.02.1968 (Ex.B16) has gone contrary to the earlier Ex.A.1 notification dt.24.05.1957 published in the A.P. Gazette on 06.06.1957 and the scheme Ex.A13 dt.7.6.1961. Ex.A1 and Ex.A13 had stated that KCK was included in the assets of the Kalahasti Zamindari and was deemed to have already been taken over by the Government along with the main Kalahasti Zamindari estate on 03.09.1952 under the Act XXVI of 1948, but now Ex.B.16 states that it is a minor inam (non-estate) situated in a Zamindari and that it is governed by the provisions of Act XXXVII of 1956 and the Devasthanam of Sri Perambudur Temple, an institution, would be entitled to a Ryotwari Patta under Section 4 of Act XXXVII of 1956.
46. Questions whether the Memo Ex.B.16=B.3/B7 would override Ex.A.1 dt.24.05.1957 and Ex.A.13 dt.07.06.1961 (the G.O.Ms.No.997 approving the scheme for introduction of settlement rates in KCK and other taken over estates)? ; Whether it is valid in the eye of law? ; and whether it is binding on the State, are also to be considered in this appeal.
MEANWHILE THE PROPERTY CHANGES SEVERAL HANDS :
47. On 09.08.1961, under a registered sale deed Ex.B.1, the trustees of Sri Audikesava Perumal and Sri Bhashyakarlaswamy Devasthanam, Sri Perambudur sold to V.K. Balaram Chetty and the 1st defendant the entire parcel of land known as KCK for Rs.57,500/-. The said sale deed recited that the Board of Trustees filed application No.88 of 1960 for obtaining sanction to complete the sale before the Commissioner for the Hindu Religious and Charitable Endowments (Administration) Department, Madras State; that the latter had referred the matter for valuation to the District Collector, Chittoor, Andhra Pradesh; and that the Government of Madras vide G.O.Ms.No.2728 dt.04.07.1961 passed an order stating that the proposed sale is beneficial to the temple and sanctioned the sale.
48. Thereafter, Balaram Chetty relinquished his half share in the suit lands in favour of the 1st defendant under Ex.B.2/Registered Relinquishment Deed dt.04.03.1962.
RYOTWARI PROCEEDINGS UNDER ACT XXXVII OF 1956 ON THE ASSUMPTION THAT KCK IS AN INAM (NON-ESTATE) :
49. Thereafter, the 1st defendant approached the Tahsildar, Sri Kalahasti in 1971 for a patta in respect of KCK under Section 4 (2) (a) read with Section 3 of Act XXXVII of 1956. The said application was rejected on 06.03.1972 in L.Dis.1703/71.
50. Aggrieved thereby, he filed IA.No.1 of 1973 under Section 3 (4) of the said Act before the Sub-Collector, Chandragiri. Relying on Ex.B.16 Memo dt. 13.02.1968 issued by the Government, he contended that KCK is governed by Act XXXVII of 1956 and that the High Court in W.P.No.792 of 1952 had quashed the notification issued under Act XXVI of 1948 that it was an under-tenure estate and declared that KCK was an inam land. By order dt.16.08.1974 (Ex.A.2), the said appeal was allowed accepting the plea of 1st defendant that KCK was not an inam estate and the Tahsildar, Sri Kalahasti was directed to issue a patta to 1st defendant. In this order of the Sub-Collector, there is no reference to Ex.A1 Memorandum dt.24.05.1957 or to Ex.A13 scheme dt.7.6.1961.
51. This was questioned by persons claiming to be ryots of KCK in this Court in W.P.No.1741 of 1975. This Court dismissed the Writ Petition by order dt.15.10.1976 (Ex.A.4=Ex.B.10) holding that the petitioners had no locus to file it since they did not file any material to show that they were ryots; and that in view of the decision of the High Court of Andhra in W.P.No.792 of 1952 and Ex.B.16 Memo dt.13.02.1968, KCK is a minor inam situated in a Zamindari land, that it was a grant to an institution which holds the same as inam land, that the institution is entitled to ryotwari patta and consequently, the 1st defendant, who purchased from the institution, can claim ryotwari patta. There is no reference in this order to the reservation made in the judgement in the said W.P. set out in para 23 supra about the appeal in the Supreme Court (20 supra) against decision of the Madras High court in Srinivasa Ayyangar case (19 supra) nor to Ex.A1 or Ex.A13.
52. The State of A.P now contends that if KCK was an inam estate whose income was included in the assets of Kalahasti Zamindari at the time of permanent settlement, the invocation of Act XXXVII of 1956 is wholly without jurisdiction and hence the judgment in W.P.No.1741 of 1975 was without jurisdiction.
53. Whether Ex.A.2 decision of the Sub-Collector dt.16.08.1974 and Ex.A.4 decision of this Court in W.P.No.1741 of 1975 under Act XXXVII of 1956 would be without jurisdiction, null and void if KCK was indeed an estate as contended by the State, has to be considered in the appeal.
LITIGATION UNDER THE A.P.FOREST ACT, 1967 :
54. In the meantime, KCK was shown as part of Narayanavanam Block of Forests comprising 49, 120 acres in Puttur and Sri Kalahasti Taluqs of Chittoor District in a notification issued under A.P. Forest Act, 1967 in G.O.Ms.No.1967 F & A dt.27.09.1968 and objections were invited thereto.
55. The 1st defendant and one Pamula Krishnaiah (who was the 1st petitioner in W.P.No.1741 of 1975) questioned this before the Forest Settlement Officer, Nellore and objected to the inclusion of KCK contending that it was 1500 acres of patta land and was wrongly included in the block by relying upon Ex.A.2 order of Sub-Collector, Chandragiri and Ex.B.16 Memo dt.13.02.1968. The Forest Settlement Officer upheld the said objections in his order reference No.A-54/65
(vi) dt.17.06.1975 (Ex.A.10).
56. This was questioned by the District Forest Officer, Chittoor (East) before the District Judge, Chittoor in AS.No.141 of 1975. He placed reliance on Ex.A.1 Memorandum dt.24.5.1957 treating KCK as land included in the assets of Kalahasti Zamindari and deemed to have been taken over along with the main estate of kalahasti on 3.9.1952 ; that Ex.A.1 was not challenged and had become final; there were no inam lands at all in respect of Kalahasti Zamindari and so the provisions of Act XXXVII of 1956 would not be applicable to any portion of the land or lands in Kalahasti Zamindari. He therefore contended that Ex.A.2 order dt.16.8.1974 of the Sub-Collector, Chandragiri under Act XXXVII of 1956 is without jurisdiction. By order dt.19.11.1977 (Ex.A.11), the said appeal was dismissed placing reliance on the order dt.15.10.1976 in W.P.No.1741 of 1975 and Ex.B.16 memo dt.13.02.1968 under Act XXXVII of 1956.
57. Whether Ex.A.10 and Ex.A.11 orders are null and void as contended by the State is also to be considered in this appeal. SUO MOTO REVISION PROCEEDINGS UNDER ACT XXXVII OF 1956 :
58. In the meantime, Section 14-A had been introduced in Act XXXVII of 1956 by amending Act XX of 1975 providing for a suo motu revision by the Board of Revenue of proceedings taken by the Tahsildar, the Revenue Court or the Collector under the Act.
59. The District Collector, Chittoor invoked Section 14-A of Act XXXVII of 1956 and sought suo motu Revision of the order dt.16.08.1974 of the Sub-Collector, Chandragiri (Ex.A.2) before the Commissioner of Survey, Settlements and Land Records, Hyderabad (for short, Commissioner). The 1st defendant contested the said Revision.
60. The Government Pleader appearing for the District Collector, (without pressing the plea of inherent want of jurisdiction) admitted that the judgment of this Court in W.P.No.1741 of 1975 (Ex.A.4) had become final, is binding upon the Government and that it is not open to the Government to re-agitate this issue.
61. The District Collector contended that Sri Kalahasti Zamindar was one of the Western Palayams in respect of which the peishcush was fixed without reference to the assets of the Zamindar and for that reason KCK was not excluded from the assets of the Zamindar at the time of permanent settlement (by relying on the decision in Secretary of State v. Rajah of Venkatagiri (17 supra) where it was upheld by the Privy Council) and that therefore on the notification of Kalahasti estate on 03.09.1952, KCK, as a minor pre-settlement inam included in the assets of the Zamindar, would stand taken over by the Government. The said plea was not considered on the ground that Section 14-A was introduced w.e.f. 20.06.1975 only and would not confer power on the Commissioner to review the Ex.A.2 order of the Sub-Collector which was passed prior thereto on 16.08.1974 and had been affirmed by the High Court in W.P.No.1741 of 1975. By order dt.31.03.1979 in case No.V2/2680/77 (Ex.A.3), the Commissioner therefore dropped the suo motu enquiry stating that the principle of res judicata would apply and he did not have the jurisdiction to take up suo motu enquiry.
62. The State of A.P now contends that the Commissioner had not considered the question whether KCK was not an inam covered by Act XXXVII of 1956 and whether the decision in W.P.No.1741 of 1975 was rendered without jurisdiction and so would not operate as res judicata.
63. In this appeal, this Court has also to consider whether Ex.A.3 order of the Commissioner is ab initio void and is of no effect. THE PRESENT SUIT FILED BY THE STATE OF A.P :
64. On 29.02.1980, the State of Andhra Pradesh represented by the District Collector, Chittoor filed OS.No.25 of 1980 before the Sub- Court, Tirupathi for the following reliefs :
(i) Declaring that the proceedings of the Sub Collector Chandragiri passed in I.A.No.1/1973 dated 16-8-1974 the Commissioner Survey, Settlements and Land Records (A.P.) Hyderabad passed in V2/2680/77 dated 31-3-1979 and the High Court in W.P.No.1741/1975 dated 15-10-1976 as ab-initio void and of no effect;
(a) and the order of F.S.O., Nellore dated 17-6-1997 in his C.No.A54/65 and judgment of the District Court dated 19-11-1978 passed in A.S.No.141/75 and W.P.6292/79 order dated 22-11-1979 of High Court of Andhra Pradesh also as ab-initio void; (added as per orders dated 30-7-84 in I.A.887/84).
(b) declaring that Kothacheruvu kandriga is not an Inam under the A.P. Inams Abolition and Conversion into (Ryothwari) Act, 1956 but an estate.( added as per order dt.12.4.1994 in I.A.No.113/1994)
(ii) directing the defendants to pay the costs of the suit;
(iii) and pass such other reliefs as this Honble court may deem fit and proper in the circumstances of the case.
65. In the plaint, the State contended :-
(a) that the judgment in W.P.No.792 of 1952 would not stand in its way to claim the above relief and contended that Ex.A-1 publication of Memorandum No.1122.J/56, Revenue dt.24-05-1957 is a notification treating KCK as a pre-settlement minor inam included in the assets of the unregistered portions of the Kalahasti Zamindari in Chittoor district and as one deemed to have already been taken over by the Government along with the main Zamindari estate on 03-09-1952 under the provisions of Act XXVI of 1948; Ex.A1 was never assailed and had become final; the permanent settlement of Zamindaris under Regulation of 1802 was generally done on the basis of the estimated income from the lands comprised in the Zamindari excluding the lands which were alienated prior to the date of the introduction of Permanent Settlement Regulation; only those lands, included in the assets of the Zamindaris, were taken into account for the purposes of estimating the income for fixation of peishcush; that Section 12 of the Permanent Settlement Regulation declared that such lands alienated prior to the Permanent Settlement were not part of the Zamindari and in such cases where such pre-settlement grants were made, the right of resumption vested solely with the then British Government and not with the Zamindar; that in respect of such alienated lands, Inam Commissioner was appointed under Inam Rules, 1859 to examine the history of such cases and grant title deeds;
therefore, the title deeds in respect of such lands reflected the right of resumption vested solely with the Government and not with Zamindars;
(b) the above rule did not apply to Zamindaris also known as Western Palayams or Military Palayams (four in number, viz., Venkatagiri, Srikalahasti, K. Nagar and Sydapur) which were permanently settled not on the basis of the estimated income from the lands included in the Zamindari; that in respect of these Zamindaris, the peishkush was fixed on the basis of estimated cost of maintenance of the Army by the respective Zamindars; that in respect of these 4 Zamindaris, lands which were alienated prior to the Permanent Settlement were included in the assets of Zamindari, viz., the entire geographical area lying within the Zamindari, vested with the Zamindar and the right of resumption in respect of pre-settlement grants was also vested solely with the Zamindar and not with the British Government;
(c) when the then Raja of Venkatagiri challenged the power of Inam Commissioner to make any enquiry under the Inam Rules, the Privy Council in 1922 in Secretary of State v. Rajah of Venkatagiri (17 supra) examined the entire history and held that within these four Western Palayams, the British Government had no right of resumption and that the Inam Commissioner was not competent to deal with the pre-settlement alienated lands. That although title deed in respect of KCK was granted in 1909 under the Inam Rules, 1859 by the Inam Commissioner, the conferment of title deeds through him is null and void; and that upon the issuance of the second notification by Government in 1957 (Ex.A-1), KCK vested in the Government under Section (3) (b) of the Andhra Pradesh Act XXVI of 1948 free from all encumbrances with effect from 03.09.1952.
(d) that although the Government issued Administrative instructions requiring the authorities under the Act XXXVII of 1956 to treat KCK as a minor T.D. Inam, vide memo 3082/k/67-26 dt.13.02.1968 (Ex.B-16), the Government is not vested with any statutory powers to do so under the said Act as it stood in 1968; a deeper examination of the history of the tenure reveals that there are no Inam lands as defined in Section (2) (c) of the said Act in Srikalahasti Zamin; the Governments opinion that KCK is a minor T.D. Inam and attracted by the said Act is only a view and not a statutory final decision; the Sub-Collector, Chandragiri in his order Ex.A-2 in I.A.No.1 of 1973 dt.16-08-1974 as appellate authority under the said Act allowed the appeal of 1st defendant against the order dt.06-03-1972 of the Tahsildar, Srikalahasti on the basis of Ex.B-16; that the said Sub- Collector should have applied his mind to the facts of the case and should not have allowed his decision to rest on the Governments view of the tenure of the village; the grant of KCK was not made by the Government, nor was the grant confirmed or recognized by the British Government because the lands were part of Srikalahasti Zamin; and that KCK is not Inam land within the meaning of Act XXXVII of 1956.
(e) that the authorities under the Act XXXVII of 1956 ought to have determined at the threshold the question whether the lands are Inam lands or not and a decision on this issue is jurisdictional in nature ; that only if they are Inam lands, the provisions of the said Act would apply; but the finding on the jurisdictional issue is not only not final but is always susceptible to collateral re-examination; that KCK ceased to be an Inam land and if the Sub-Collector had come to a wrong decision that it was an Inam land, and the Civil Court could examine whether the jurisdictional decision is correct or not; and the decision of the Sub-Collector, Chandragiri is one without jurisdiction since the land is not an Inam land;
(f) that after the Act XXXVII of 1956 was amended in 1975 and Section 14-A was introduced therein, Government took the view that KCK is not an Inam land and moved the Commissioner for Survey, Settlements and Land Records (Andhra Pradesh) Hyderabad, which is an authority in whom the power of Revision is vested per new Sec.14-A and he in turn initiated suo moto revision in respect of the order of the Sub-Collector, Chandragiri; that the said Commissioner dropped the proceedings; that in respect of lands which are not Inam lands, the provisions of Act XXXVII of 1956 itself would not apply and any power exercised by the said Commissioner under that Act would be without jurisdiction;
(g) that the decision of the High Court in W.P.No.1741 of 1975 dt.15-10-1976 (Ex.A-4) confirming the order of the Sub-Collector was on the ground that the petitioners had no locus standi;
(h) that the orders of the Sub-Collector, the Commissioner for Survey, Settlements and Land Records and the High Court would not constitute res judicata or preclude the plaintiff from contending that all the proceedings are void;
(i) the decisions in Ex.A-10 in reference No.A-54/65(vi) dt.17-06-1975 of the Forest Settlement Officer, Nellore, Ex.A-11 judgment dt.19-11-1977 of the District Judge, Chittoor in A.S.No.141 of 1975 affirming Ex.A-10 and the order dt.22-11-1979 in Ex.A-12 of the High Court in W.P.No.6292 of 1979 are also null and void since they were passed on a wrong assumption that KCK is a Inam land; and
(j) that these orders do not strictly require to be set aside since they are without jurisdiction and void but by way of abundant caution, the suit is being filed.
SUIT TRANSFERRED AND RENUMBERED :
66. Subsequent to the filing of this suit on 29-02-1980 before Sub- Court, Tirupati, a Sub-Court at Sri Kalahasti was established. Therefore the suit was transferred to the latter Court and renumbered as O.S.No.52 of 1985.
ALIENATIONS MADE PENDING PRESENT SUIT :
67. Subsequent to the filing of this suit, the 1st defendant executed Ex.B-17 agreement of sale dt.16-05-1980 in favour of 5th defendant agreeing to sell KCK for Rs.16 lakhs to it and also allegedly delivered possession of the land under a possession certificate Ex.B-18 to 5th defendant. He also gave a registered General Power of Attorney Ex.B-19 on 09-07-1980 to D-5 to act on his behalf in regard to management of his affairs, protection of his title, interest and rights in KCK. Subsequently another registered General Power of Attorney Ex.B-31 dt.14-02-1991 was executed by 1st defendant in favour of one Dr.M.S.Kadir Velu, the Managing Director of 5th defendant to conduct the litigation in O.S.No.52 of 1985 on his behalf.
68. The 5th defendant was impleaded by order dt.06-03-1984 in I.A.No.1270 of 1983.
THE WRITTEN STATEMENT OF 1ST DEFENDANT :
69. The 1st defendant filed written statement denying the plaint averments and contending that:-
(a) The property KCK was purchased for Rs.57,500/- on 09.08.1961; the notification No.427 dt.06-10-1952 treating KCK as under-tenure estate was quashed by the High Court in W.P.No.792 of 1952 on 12-09-1955 on two grounds- firstly, on the ground that it is not an under-tenure estate (and therefore the notification issued by the Government in G.O.Ms.No.427 dt.06.10.1952 is void); and secondly, that it is not part of the Zamindari Estate; that the proceedings of the Inam Deputy Collector confirming the grant in the name of God through Sri Bhasikaraswamy of Sriperumbur clearly established that it is treated as an out and out grant; that in view of the judgment of the High Court, it is not a Zamindari estate as defined under Section 2 (16) of Act XXVI of 1948; that the judgment in W.P.No.792 of 1952 has become final and binding on the Government; and that it is not open to the plaintiff to re-agitate the same question in order to harass the 1st defendant;
(b) that the Government of Andhra Pradesh in Ex.B-16 has taken a definite stand that it is not a Zamindari Estate and that it is an Inam under Act XXXVII of 1956;
(c) that KCK is an Inam which was confirmed by the Inam Commissioner in the name of God and so it is not part of the Zaminadri estate;
(d) that no action was taken pursuant to notification No.427 dt.06.10.1952 and therefore it was unnecessary for 1st defendant to question Ex.A-1 memorandum dt.24-05-1957;
(e) that the Collector representing the State of A.P. cannot question the action of the Government of A.P. and being a subordinate to it, is bound to implement its decision and cannot question the same in the suit.
(f) that KCK is not a part of Kalahasti Zamindari and is outside the Zamindari and is not a Zamindari estate; that the income in respect of KCK was not taken into account in fixing the peishkush of the Kalahasti Zamindari, at the time of permanent settlement;
(g) that the Inam Commissioner confirmed the grant of KCK in the name of Sri Bashikarla Swamy of Sriperumbudur in 1909 and the Collector cannot question it after 71 years and contend that the title deed granted by the Government in 1909 is invalid;
(h) that the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) is inapplicable as it related to the Venkatagiri estate in the Madras Presidency and did not deal with Kalahasti estate; and a casual observation in respect of Kalahasti estate therein is not binding either on the Government or on the Zamindar or on the minor Inamdar;
(i) as far as KCK is concerned, the Raja of Kalahasti or the Inamdar have questioned the action of the Government in issuing title deed in favour of the above institution in 1909 and the Collector cannot now plead that the said decision of the Government is a mistake; that the Government cannot approbate or reprobate;
(j) that Ex.A-1 notification issued by the Government under Act XXVI of 1948 is invalid, was never acted upon by the Government itself and it had later issued Ex.B-16 memo directing the pattas under
Act XXXVII of 1956 should be issued; this shows that KCK did not vest in the Government on 03-09-1952 or any later date; Ex.B-16 is binding on the Government and the Collector and no decision is taken to reverse the said decision;
(k) that a suit by the Collector is barred under Section 14 of Act XXXVII of 1956 since KCK is an Inam land within the meaning of the said Act;
(l) the Government Pleader rightly conceded before the Commissioner in the proceedings under Section 14-A (Ex.A-3) that the judgment of the High Court in W.P.No.1741 of 1975 is final and binding on the parties notwithstanding the earlier Privy Council judgment in Secretary of State v. Rajah of Venkatagiri (17 supra);
(m) that the suit is barred by limitation since the State is questioning the action of the Inam Commissioner taken 71 years back; and
(n) that the Collector without any direction from the Government had ventured to question the action of the Government in the Civil Court and as such, the suit be dismissed with costs.
THE WRITTEN STATEMENT OF THE 5TH DEFENDANT :
70. The 5th defendant filed a written statement substantially adopting the contentions of 1st defendant. It contended that the Government cannot in law maintain the suit since it is barred by doctrine of estoppel by judgment and also estoppel by conduct apart from res judicata and that the Civil Court has no jurisdiction to declare the judgments of superior Courts like the High Court as void.
71. The 1st defendant died pending suit. His wife Smt.M.Vydehi (6th defendant) was impleaded as his legal representative in I.A.No.124 of 1992 on 17-08-1992. She did not file any separate written statement.
ADDITIONAL WRITTEN STATEMNT OF 5TH DEFENDANT :
72. An additional written statement was filed by 5th defendant stating that it had obtained an injunction against Smt.Vydehi in I.A.No.10390 of 1992 in O.S.No.3484 of 1992 from the IV Assistant Judge, City Civil Court, Madras restraining her from interfering with and disturbing his rights in regard to the suit property; that 5th defendant had become the holder in due course of the suit property as 1st defendant had already conveyed all his rights to it and defendant no. 6 had no right or interest in the property.
THE ISSUES:
73. The trial Court framed the following issues:
Issues dt.24-10-1981:
1. Whether the impugned orders of the Sub-Collector, Chandragiri, the Commissioner of Survey & Land Records or that of the High Court of A.P. in W.P.No.1741 of 1975 are without jurisdiction and therefore ab initio void?
2. Whether the valuation of suit for purpose of court fee is correct and whether C.F. paid is sufficient?
3. Whether the suit is maintainable without the orders of the Govt.
of A.P. sanctioning its presentation?
Additional Issues framed on 13-04-1984
1. Whether the agreement of sale dt.16-08-1980 by 1st defendant to the 5th defendant is true, valid and binding on the plaintiff?
Following issues are framed afresh as per order dt.13-09-1984 in I.A.No.783 of 1984
1. Whether the suit is barred by resjudicata in view of decisions in W.P.No.792 of 1952, W.P.No.1741 of 1975 judgments dt.15-10-1976, W.P.No.6292 of 1979 judgment dt.22-11-1979, order dt.31-03-1979 in V2/2680/77 of Commissioner of Survey, Settlement and Land Records, Hyderabad, District Courts judgment dt.19-11-1977 in A.S.No.141 of 1975 and Chandragiri Sub-Collectors judgment dt.16-08-1974 in Inam Appeal 1/73?
2. Whether the plaintiff is estopped from filing this suit on account of A.P., Government Memorandum No.3082/67/26 dt.13-02-68 Revenue (K) Department?
3. Whether this Court has jurisdiction as the High Court and Special Tribunals have decided the dispute in this suit? Additional Issues framed on 07-06-1993
1. Whether the 6th defendant has succeeded to the rights of the 1st defendant who even during his life time assigned and transferred all his rights relating to the suit properties to the 5th defendant for cash consideration and whether the 6th defendant is the holder of the suit lands?
2. Whether the 6th defendant who is the legal heir of deceased 1st defendant is not entitled to succeed the rights of the 1st defendant in respect of the suit properties?
3. To what relief?
Additional Issue framed on 15-04-1994
1. Whether the plaintiff is entitled to declaration that Kothacheruvu Kandriga is not an inam under the A.P. (Andhra Area) Inam Abolition and conversion into (Ryotwari) Act, 1956 but an estate?
74. On behalf of plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-17 were marked. On behalf of defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-33 were marked.
THE TRIAL COURT JUDGMENT DT.07-08-1994 :
75. By judgment and decree dt.07-08-1994, O.S.No.52 of 1985 was dismissed by the trial Court.
76. The trial court, in a brief judgment, held that Ex.A-3 discloses that during course of arguments, the Government Pleader had admitted that the judgment of the High Court Ex.A-4 dt.15-10-1976 in W.P.No.1741 of 1975 has become final and binding on the Government; that it is not known why the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) was not brought to the notice of the Commissioner who passed Ex.A-3 or the High Court when it decided W.P.No.792 of 1952 or W.P.No.1741 of 1975 (Ex.A-4); therefore Collector had no right to question the order passed therein and is estopped from challenging them. It also held that it cannot now hold that KCK is not an Inam, that it is an estate or notified as under-tenure estate. It further held that the conduct and actions of the Government disclosed that it proceeded as if KCK is an Inam and not an estate, since it had not preferred any Writ Appeal challenging the above judgments of the Single Judges of the High Court. It therefore held that it is not possible to hold that all the Government Orders are null and void and that the notifications of the Government are wrong. It held that the judgment in W.P.No.6292 of 1979 restrains the Collector and the Forest Officer from preventing 1st defendant from cutting the trees in the length. It rejected the contention of the State that in view of the judgment in Secretary of State v. Rajah of Venkatagiri (17 supra), the Memo Ex.B-16, the Sub Collectors decision (Ex.A-2) or the Order of the Commissioner of Survey, Settlement and Land Records, (Ex.A-3) are without jurisdiction. It also held that decisions rendered in writ petitions on merits by the High Court are binding on the Government and subordinate Courts and therefore it is not competent to question the decisions rendered in W.P.No.792 of 1952 and W.P.No.1741 of 1975. It accepted the plea of the defendants that all points raised in the suit are barred by res judicata since they were discussed in these writ petitions and in A.S.No.141 of 1975 by the District Court. It held that the evidence of P.Ws.1 and 2 and the documents marked on behalf of the State do not establish its case and that it had no jurisdiction to entertain the suit and hold that the plaint schedule property is not inam land and that it is an estate in Srikalahasti Zamindari. It also held that the District Collector had no right to sue the Government since Defendant no.s 2 to 4 are government officials; he cannot file a suit against them questioning the orders passed by them in their official capacity; he cannot question the judgment of High Court in writ petition; and the suit is not at all maintainable without obtaining orders of the Government to sue the government officials who passed orders in their official capacity. It further held that the State is estopped from filing the suit against the defendants in view of the orders in the above writ petitions.
77. It also held that the agreement dt.16-05-1980 by 1st defendant in favour of 5th defendant is a true and valid document and there are no reasons to suspect it; since only part consideration was paid under the said agreement to 1st defendant before his death, 6th defendant being his legal representative, is entitled to receive the balance consideration and she gets the right over the suit property.
78. It declared that the conduct of the Government and the parties to the earlier proceedings and orders in the above two writ petitions clearly show that the Government has not taken any action earlier to establish that it is an estate and not an inam and in fact the Government had admitted that the land was not an estate, but an inam. It found that there is no material to declare that the plaint schedule property is not inam land but it is an estate.
THE PRESENT APPEAL BY THE STATE OF ANDHRA PRADESH :
79. Aggrieved thereby, this appeal is filed by the State/plaintiff along with defendants 2 to 4. Subsequently the latter were transposed as respondents vide order dt.29-12-2006 in A.S.M.P.No.2642 of 2006.
80. Pending appeal, the 6th defendant in the suit/respondent No.2 in the appeal died. Initially one Smt.R.Sulochana (respondent No.6), her daughter, was impleaded as her legal representative vide order dt.06-08-2007 in A.S.M.P.No.1549 of 2007. Later respondents 7 to 10 represented by their GPA holder were also impleaded as legal representatives of the deceased 6th defendant by order dt.09-04-2013 in A.S.M.P.Nos.199 of 2010 and 455 of 2011. Subsequently respondent No.6 died and the respondent No.11 was impleaded as her legal representative vide order dt.09-04-2013 in A.S.M.P.No.676 of 2013.
81. I have heard the elaborate arguments of Sri Y.Chandrasekhar, learned Government Pleader appearing for the office of the Advocate General for the appellant State of Andhra Pradesh, Sri K.V.Nageswara Rao, learned counsel for 1st respondent/ 5th defendant, Sri E.Manohar, learned Senior Counsel appearing for A.Chandrayya Naidu, counsel for Respondent no.s 7 to 10, and Smt.B. Neeraja Sudhakar Reddy, counsel for Respondent no.11.
OTHER APPLICATIONS FOR IMPEADMENT IN THIS APPEAL :
82. A.S.M.P.No.152 of 2008 was filed by one P.Satteyya for impleading himself as party contending that he had obtained an agreement of sale dt.14-09-2000 from Smt.Vydehi, wife of 1st defendant in respect of the plaint schedule property and also stating that he had filed O.S.No.14 of 2008 before the Additional District Court, Tirupathi for specific performance of the said agreement of sale nd the said suit is pending. Sri K.S.Gopal Krishnan, learned counsel appeared for him.
83. A.S.M.P.No.2157 of 2010 was filed by five persons seeking impleadment in the appeal contending that they purchased an extent of Ac.50.00 gts of land under an agreement of sale dt.14-12-1983 from 1st defendant. Sri P.Gangi Rami Reddy, learned counsel addressed arguments on their behalf.
84. A.S.M.P.No.3172 of 2012 was filed by persons claiming to be legal representatives of Smt.Vydehi and 1st defendant subsequent to their death claiming through S.Vaidyanathan Pillai, brother of 1st defendant on the basis of a family arrangement and contending that Smt.Vydehi had no legal heirs. Sri M.V.S.Suresh Kumar, Advocate appeared for Sri A.Sudhakar Rao, Counsel for these petitioners. This application was opposed by 1st respondent denying the contents thereof. Since the estate of 1st defendant and 6th defendant is represented by Respondents no.7-10, it is unnecessary to implead these petitioners in the appeal since several disputed questions of fact need to be gone into to allow the application. Therefore this application is dismissed.
85. Since the agreements of sale do not by themselves create any interest in the plaint schedule property or part thereof in view of Section 54 of the Transfer of Property Act, 1882 , the petitioners in A.S.M.Ps.152 of 2008 and 2157 of 2010 are not entitled to be impleaded as parties in the appeal. The said A.S.M.Ps. are therefore dismissed.
86. Since this appeal arises out of a suit filed by the appellant/plaintiff against defendant nos.1-5 for the reliefs set out in para 64 supra and the primary issues to be decided relate to the said reliefs only, in my opinion, it was not proper for the trial Court to have decided the disputes inter se 1st defendant/6th defendant and Defendant no.5/1st respondent in the impugned judgment. Therefore its findings on additional issues 1 and 2 framed on 07-06-1993 were not necessary to be given in deciding whether or not the suit was to be decreed or dismissed. The said findings are therefore set aside with liberty to Respondent nos.1, 7 to 11 to get adjudicated their inter se disputes in an appropriate forum by appropriate proceedings. It is declared that the findings of the trial Court on the above issues would not bind them in any manner in such proceedings.
THE POINTS FOR CONSIDERATION IN THE APPEAL:
87. The following points arise for consideration in this appeal:
(1) Whether the suit filed by the appellant through the District Collector, Chittoor is maintainable even though there is no specific authorization filed on behalf of the District Collector issued by any authority authorizing him to file the suit? (2) Whether the respondents are right in their submission that the District Collector cannot file a suit against other officials of the State like Tahsildar, Srikalahasti (2nd defendant), Sub-
Collector, Chandragiri (3rd defendant), Commissioner of Survey, Settlements and Land Records, Hyderabad (Defendant no.4)?
(3) Whether the judgment in W.P.No.792 of 1952 of this Court operates as res judicata and bars the suit filed by the State out of which this appeal arises?
(4) (i) What is the effect of Memo No.3082-67/26 dt.13.02.1968 of the Government of Andhra Pradesh Revenue (K) Department (Ex.B.16) which was published in the Chittoor District Gazette on 25.11.1975 (Ex.B.7) ? (ii) Whether the said memo would override Ex.A.1 publication in the Gazette dt.06.06.1957 ? and (iii) Whether the issuance of this Memo dt.13.02.1968 operates as an estoppel against the State ? (5) (i) Whether Ex.A.2 order of the Sub-Collector of Chandragiri dt.16.08.1974 in IA.No.1 of 1973 and its confirmation by this Court in W.P.No.1741 of 1975 placing reliance on Ex.B.16 has any effect on this suit ? (ii) Whether the decision in the W.P.No.1741 of 1975 (Ex.B.10) would operate as res judicata ? And (iii) Whether the State is entitled to a declaration that these two proceedings are ab initio void and are of no effect?
(6) Whether the present suit is barred in view of Section 14 of Act 37 of 1956 ?
(7) Whether the order dt.31-03-1979 of the Commissioner, Survey, Settlement and Land Records (D4) passed in proceedings No.V2/2680/77 (Ex.A-3) is void, ab initio and is of no effect?
(8) Whether the decision of the Forest Settlement Officer, Nellore dt.17-06-1975 in Ref. No.A/54/65 (vi) marked as Ex.A-10, its confirmation by the District Judge, Chittoor in his judgment dt.19-11-1977 in A.S.No.141 of 1975 (Ex.A-11) on confirmation of the later order in W.P.No.6292 of 1979 dt.22-11-1979 are ab initio void ?
(9) Whether the plaintiff is entitled to declaration that KCK is not an inam governed by the A.P.(Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 but an estate ?
(10) Whether the plaintiff is entitled to grant of such relief of declaration even if it had not sought the relief of recovery of possession?
Point No.(1):-
88. The learned counsel for respondents contended that the District Collector, by himself could not have filed the suit without any specific authority issued to him to do so. They relied upon Section 79 and Order XXVII Rule 1 CPC in support of the said plea, on the assumption that the District Collector was not representing the State and was not authorized. The counsel for the respondents relied upon State of Rajasthan and Others, Vs. M/s.Jaipur Hosiery Mills (Pvt.) Ltd. and Others , Firm Mohanlal Ramchandra Vs. The Union of India , Chief Conservator of Forests Vs. Collector and Others , Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi and Lt. Rajender Singh Punia Vs. Chief or Naval Staff and Another in support of the above objection.
89. On the other hand, the learned Government Pleader contended that Section 79 CPC has to be read in conjunction with Section 80 CPC and since the latter provision indicates that notice prior to the filing of a suit against a State Government is required to be issued either to the Secretary to that Government, or to the Collector of the District [under sub clause (c) to sub section (1) of Section 80], the State of A.P. can file the suit represented by the District Collector and no specific authority is required to file the suit. He relied upon an unreported judgment of a Division Bench of this Court in Bandaru Yadagiri Vs. The State, rep. by the Mandal Revenue Officer, Bandlagudem, Hyderabad and contended that in a lis dealing with property of the State, the State is a necessary party and should be impleaded as provided under Article 300 of the Constitution of India and Section 79 CPC i.e. the State of Andhra Pradesh can represented by the District Collector or the Chief Secretary, as the case may be. He also contended that the principle laid down in United Bank of India Vs. Naresh Kumar and Others also should be invoked and it is for the Court to be satisfied that District Collector could sign the plaint on behalf of the State particularly when the suit was filed on behalf of the State; oral and documentary evidence was adduced on behalf of the appellant and the trial continued before the trial Court from 1980 to 1994, for 14 years and it would be difficult, in these circumstances to presume that the suit had been filed and tried without the State having authorized the District Collector to institute the same. He further submitted that the appeal was also filed on behalf of the appellant State by the office of the Government Pleader and was entrusted to the Advocate General of the State to appear and argue it and there cannot be any doubt that the suit was instituted with proper authority.
90. Section 79 CPC states:
79. Suits by or against Government In a suit by or against the Government, the authority to be named as plaintiff or defendant, at the case may be, shall be-
(a) in the case of a suit by or against the Central Government,2[the Union of India], and
(b) in the case of a suit by or against a State Government, the State.]
91. Order XXVII Rule 1 and 2 CPC states :
Order XXVII, Suits by or Against the Government or Public Officers in their Official Capacity:
(1) In any suit by or against (the Government) the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. (2) Persons authorised to act for Government:-
Persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
92. In State of Rajasthan (22 supra), a Single Judge of the Rajasthan High Court had held that an appeal under Section 96 CPC was filed by the Standing Counsel of the State who had no express authorization in writing from the Law Department to present the appeal on the date when it was filed in the Court and that sanction by the Law Department granted subsequently would not operate retrospectively. He relied upon a Division Bench judgment of the same Court in Firm Mohanlal Ramchandra (23 supra), where a similar plea was upheld relying on the language of Order XXVII Rule 1 and 2 CPC. In that case it was held by High Court of Rajasthan that the Superintendent of Post Offices was not authorised to act for the Central Government under Order VII Rule 2 CPC in view of a statutory rules and orders No.3920 dt.05-12-1957 of the Government of India by which the Government Advocate of the Rajasthan High Court were appointed to be Government Pleaders for the purpose of Order XXVII Rule 8-B CPC in relation to any suit by or against the Central Government filed in the State of Rajasthan.
93. In my opinion, these two decisions are distinguishable for they deal only with the authority of a counsel/advocate appearing for a State or Central Government and do not deal with the authority of an Officer of the State like a District Collector to file a suit on its behalf.
94. In Chief Conservator of Forests (24 supra), relied on by respondents, the Supreme Court emphasised that State concerned is a necessary party in a dispute relating to its property and should be impleaded in the suit or proceeding. It held that the Chief Conservator of Forests could not have filed a writ petition in the High Court challenging an order of the Commissioner of Survey, Settlement and Land Records under Section 166-B of the AP (Telangana Area) Land Revenue Act, 1317 Fasli. It held that he can neither be treated as the State of Andhra Pradesh nor is it a case of mis-description of the State of Andhra Pradesh and that the suit is not maintainable. In Ranjeet Mal (25 supra), a writ petition was filed by an employee of the Northern Railways against the General Manager, Northern Railway without impleading the Union of India. The Supreme Court held that a General Manager is a servant of the Union and that the latter represents the Railway Administration and ought to have been impleaded when a challenge is made to an order of removal passed against the petitioner which was confirmed by the General Manager. In Lt. Rajender Singh Punia (26 supra), this Court held that the Union of India is a necessary party in a writ proceeding filed in the High Court by a Naval Officer challenging the order of the Chief of Naval staff approving his discharge from service.
95. These three decisions relied on by respondents also have no application to the present case since admittedly the State of Andhra Pradesh is the plaintiff and not the District Collector. In the present suit, the District Collector represents the State of Andhra Pradesh which is the plaintiff.
96. In the case relied on by the Learned Government Pleader for the appellant i.e., Bandaru Yadagiri (27 supra), a suit was filed by a private party for declaration of title and for injunction in respect of a house site by merely impleading the State of Andhra Pradesh represented by the Mandal Revenue Officer, Bandlagudem, Hyderabad. The trial Court partly decreed the suit by granting relief of injunction but refused the relief of declaration. In the appeals filed by the parties in the High Court, a question was raised whether the suit was maintainable against the State Government represented by the Mandal Revenue Officer. While the State contended that under Section 79 (b) of CPC, in a suit against a State Government, a Secretary to that Government or Collector of the District has to be named, the private party contended that the suit is maintainable since no such pleading was raised by the defendant in the suit. After considering the provisions of Section 79 and 80 CPC and several decisions of the Apex Court including Chief Conservator of Forests (24 supra), this Court held:
24.From the decided cases as discussed above, the following principles emerges. In a suit filed by or against the State Government, the State has to be named as plaintiff or defendant, as the case may be.
A notice contemplated under Section 80 (1) CPC should be served on Secretary to Government or the Collector of the District in case a suit against the Government or public officer is instituted. The Court is empowered to dispense with the notice contemplated under sub section (1) of Section 80, where the Court is of the opinion that issuance of the notice will defeat the relief of obtaining urgent and immediate order. Mis-description of the parties in the notice issued no dot entail dismissal of the suit, where the notice has been served on the appropriate authority or the public officer as specified under sub- section (1) of Section 80 CPC disclosing the cause of action and proviso to sub-section (2) of Section 80 mandates that if the Court is of the opinion that no urgent or immediate relief deserves to be granted, it should return the plaint for presentation after complying with the requirement contemplated under sub-section (1) of Section 80. When the State or appropriate authority representing the State has been impleaded and if any notice has not been issued as contemplated under Section 80 (1) CPC, an objection has to be taken at the initial stage and if no objection is taken and the issue is framed in that regard, it is deemed to have been waived. In a lis dealing with the property of a State, such State is necessary party and should be impleaded as provided under Article 300 of the Constitution of India and Section 79 CPC i.e. the State of Andhra Pradesh represented by the Chief Secretary or the District Collector, as the case may be (emphasis supplied)
97. This decision is directly on the point and squarely applies to the present case. In this suit, admittedly the State of Andhra Pradesh is represented by the District Collector, Chittoor. Even otherwise the Court has to take judicial notice of the overarching role of a District Collector in the administration of the affairs of the State within his district and the fact that under several State and Central enactments he is designated as a competent and statutory authority to deal with the rights of the citizens vis--vis the State or other citizens. He is a high public official entrusted with the management of affairs of the State. It cannot be said that such an official needs express authorization from some authority to file a suit to protect the interests of the State particularly one like the present suit where a large extent of 1500 acres of valuable land in Srikalahasti area of Chittoor District is at stake. Public Interest mandates that the plea of the State on merits should be examined for it would suffer gravely if on such technicalities, the suit is thrown out.
98. In United Bank of India (28 supra), relied upon by the appellant, a suit filed by a Bank for recovery of money against the respondents was dismissed on the ground that the plaint was not duly signed and verified by a competent person. It was confirmed by the High Court of Punjab and Haryana. On appeal, the Supreme Court held:
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
It held that a Company in a juristic entity and under Order XXIX Rule 1 CPC , it can authorize any person to sign the plaint or the written statement on its behalf and such authority could be by Board resolution or by a power of attorney. It also held that even in the absence of such authority, where pleadings have been signed by one of its officers, a Corporation can ratify it and that such ratification can be express or implied. It held that the Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial come to a conclusion that the Corporation had ratified the act of signing of the pleading by its officer. It directed that even appellate courts can exercise the power under Order 41 Rule 27 (1) (b) CPC and can direct production of such authority or proof of ratification. It held that it would be a travesty of justice if the appellant bank were to be non-suited for a technical reason which did not go to the root of the matter. Having regard to the facts in that case that the suit was filed in the name of the appellant company, full amount of Court Fee had been paid by it, documentary as well as oral evidence had been led on its behalf in the trial Court for about two years, it held that it is difficult to presume that the suit was filed and tried without the appellant having authorized its institution. It held that the only reasonable conclusion is that the person who signed the plaint must have been authorized to sign it and in any case it must be held that the appellant had ratified his action in signing the plaint and thereafter continued with the suit.
99. I am of the view that the principle behind this decision ought to be applied to the present case. Here the State of Andhra Pradesh is the plaintiff in the suit represented by the District Collector, Chittoor. As to the manner of conduct of the trial, the State examined a Deputy Tahsildar and a Mandal Revenue Officer, both government officials, as its witnesses and marked Exs.A-1 to A-17. The Assistant Government Pleader conducted the trial of the suit from 1980 to 1994 i.e. for 14 years. This appeal was filed by the office of the Government Pleader for Irrigation and was later entrusted to the office of the Advocate General. A learned Government Pleader attached to the office of the Advocate General argued the appeal.
100. In view of all these circumstances, I am satisfied that the District Collector was authorized to represent the State Government and to file the suit on behalf of the State since all these things would not have happened without the District Collector having been authorized by the State to institute the suit. Therefore in my opinion the provisions of Section 79 and Order XXVII Rule 1 and 2 CPC are complied with, and the objection of the respondents that the District Collector had no written authorization to file the suit, is rejected. This point is accordingly answered in favour of the appellant and against the respondents.
Point No.2:-
101. It is the contention of the respondents that the District Collector, an Official of the State cannot sue the Tahsildar, Sub- Collector and Commissioner of Survey, Settlements and Land Records in the suit. I am unable to agree with the said contention.
102. Firstly, the suit is not by the District Collector alone but it is filed by the State of Andhra Pradesh represented by him. So it has to be treated that the State of Andhra Pradesh is the plaintiff and not the District Collector. Secondly, the Tahsildar, the Sub-Collector and the Commissioner were exercising statutory quasi judicial powers under Sections 3(1), 3(4) and 14-A of the Act XXXVII of 1956 and their orders are in question in the suit. Since the State felt aggrieved by their orders, it filed the suit through the District Collector by showing them as defendant Nos.2 to 4 in the suit. They are not sued in the suit merely in their official capacity as Tahsildar, Sub-Collector and Commissioner respectively, but as statutory quasi judicial authorities under the Act XXXVII of 1956. As quasi-judicial statutory authorities they adjudicate the rights of the ryots, landholders like Zamindars/institutions and the State and they do not act as agents/employees of the State. They have expertise in revenue matters and are expected to adjudicate impartially the disputes among the above categories of litigants.
103. Therefore, the contention of the respondents that the suit is filed by the District Collector and he could not have filed it against the Tahsildar, Sub-Collector or Commissioner, is rejected. Thus the point is answered accordingly against the respondents and in favour of the appellant.
Point (3):
104. The respondents contended that the judgment in W.P.No.792 of 1952 of this Court operates as res judicata and bars the suit filed by the State out of which this appeal arises.
104. The principle of res judicata would not apply on the issue of nature of land as held on 12.9.1955 in W.P.No.792 of 1952, since it was left open and also if the said judgment is void on account of the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) and an earlier Division Bench judgment of this Court and by the Madras High Court discussed below.
105. There is no dispute that the Revenue Department of the State of Madras issued a notification No.427 dt.06-10-1952 published at pages 1491-1492 of Part-I of the Fort St.George Gazette dt.15-10-1952 appointing the date on which certain provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948) would come into force in certain under-tenure estates in Chittoor district. One of the entries in the said Gazette is entry 23 dealing with KCK.
106. This notification was challenged by certain lessees thereof in this Court by way of W.P.No.792 of 1952. The said W.P. was allowed. The petitioners therein contended that KCK was only a minor inam and not a grant of a whole village. This plea was not specifically denied by the Government. The Government asserted in the counter-affidavit that it was a village forming part of Zamin estate of Andanalagunta group consisting of 66 villages. The High Court of Andhra in its judgment dt.12.09.1955 therefore held that the notification issued by the Government treating it as a permanent under-tenure was liable to be quashed. Although the Court also noted that a further question i.e. whether this inam may be treated as a part of the zamin estate of Andanala gunta estate and the notification issued under Section 3(2)(a) of Act XXVI of 1948 was valid arises for consideration, it did not consider the provisions of the said Act and did not answer it. On the basis of the proceedings of the Inam Deputy Collector dt.22-10-1909 holding that there is a grant in the name of the God Sri Bhashikarla Swami of Sri Perambudur and that it was an out and out grant, the High Court held that it ceased to be the part of Zamindari estate. It therefore quashed the notification under Section 3(2)(a). It also held, following the decision of the Madras High Court in Srinivasa Ayyangar (19 supra), that minor inams are protected under Section 20 of the Act and so they did not vest in the Government on the date of notification under Section 3(b) of the Act. It however observed that if the appeal preferred by the Government in the Supreme Court against the said judgment in Srinivasa Ayyangar (19 supra) is allowed and if they are entitled under the provisions of Act XXVI of 1948 to notify the same, they could do so. (See para 23 supra). The trial Court ignored this part of the judgment in W.P.No.792 of 1952 and held that this judgment had become final and conclusive and the Government is bound by it. I am unable to agree with the said view.
Effect of non-filing copies of pleadings and judgments on the plea of res judicata :
107. I shall now deal with the question of res judicata. Curiously, neither the judgment of this Court in W.P.No.792 of 1952 nor the pleadings therein have been marked as exhibits in the present suit by the respondents. (The said judgment was obtained from the Archives of the High Court Registry by me and supplied to all the counsel). In my opinion, the non-filing of the same debars them from raising the plea of res judicata, as per the law under Section 11 CPC.
108. The Supreme Court of India in Ramachandra Dagdu Sonavane (dead) By L.Rs. and others Vs. Vithu Hira Mahar (Dead) by L.Rs. and others , held:
55. It is true that if an earlier judgment has to operate as res judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed on record in the subsequent proceedings
109. Similar view was expressed by a Division Bench of this Court in Devarapu Narasimharao Vs. Yerrabothula Peda Venkaiah and others . The Bench held:
19. Thus, whenever the plea of res judicata is raised, the Court has to investigate the facts in order to determine whether the requirements of Section11 of the Code of Civil Procedure have been fulfilled or not. The concerned party has to file copy of the pleadings of the earlier suit as also copy of the issues and the judgments so that the Court can see whether the required elements are present on record or not. Where the concerned party does not place the relevant material before the Court, the question of making an investigation into the facts and invoking the doctrine of res judicata does not arise, because, it is not a pure question of law and the plea of res judicata is not the one which affects the jurisdiction of the Court. Thus, it is a plea in bar of trial of a suit or an issue, as the case may be, which a party can choose to waive.
110. Since neither the pleadings in the said W.P. nor the judgment in the said W.P. were marked as exhibits in the suit by the respondents/defendants, as a matter of law, they are not entitled to raise the plea that the present suit is barred by res judicata on account of the decision of this Court dt.12-09-1955 in W.P.No.792 of 1952. Special procedure for Venkatagiri, Kalahasti and two other Zamindaris where the income from the Zamindaris and the Inams comprised therein was commuted in lieu of military services :
111. Even otherwise, the said decision would not operate as res judicata in view of the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) dealing with the case of Venkatagiri Zamindari estate where reference was also made to the Kalahasti Zamindari. In that case the Privy Council referred to several documents in its judgment relating to Kalahasti estate also and held that in respect of Venkatagiri, Kalahasti, Bomarajupalem and Sidapore (which were the Zamindaris in the Western Arcot), as a special feature, the permanent settlement was not made in accordance with the practice prescribed by the Permanent Settlement Regulation of 1802 but was made quite independently of the provisions of the said Regulation, and that at the time of permanent settlement, the peishkush was not fixed upon a computation of the income from the assets of these Zamindaris, but was fixed on the basis of a commutation of the military service subject to which the said Zamindari was held. The Privy Council held that as a result of the special procedure, income from minor inams were thus not excluded from the Zamindaris by the settlement and the Government had no right of reversion in such inams comprised therein. It observed that these assessments and Sanad issued to the Zamindar were outside the Regulation XXV of 1802 under which the Government claimed the right to resume the inam lands within the estate of Zamindar of Venkatagiri and to assess them separately.
112. The Privy Council thus treated Venkatagiri, Kalahasti and two other Zamindari estates as being on the same footing. It held that the Secretary of State for India in Council had no right to resume or assess to public revenue, inam or lakhiraj lands situated within the said Zamindari, and granted an injunction restraining the Secretary of State and his Officers from holding any investigation into such inams and dealing with them under Inam Rules or resuming and assessing them for public revenue.
113. Since as per the said judgment, Kalahasti Zamindari stands on the same footing as Venkatagiri Zamindari, the result is the same for Kalahasti Zamindari also; namely that though the income from minor inams granted prior to 1802 was not included in the assets for computing the peishkush, the same result is obtained by another formula by commuting the military service of the entire kalahasti Zamindari while arriving at the peishkush.
114. Again in Krishna Yachendra v. Ramanujulu (1942) (7 supra), a Division Bench of the Madras High Court consisting of Wadsworth and Patanjali Sastri JJ, in respect of grant of an agraharam situated in the Kalahasti Zamindari granted to a community of brahmins followed the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) and held that it was an inam estate. It was observed:
Now, an agraharam is a village granted to a community of Brahmins by former rulers or zamindars either absolutely rent-free in which case it is called sarva agraharam or on condition of paying annually a fixed sum which is variously called jodi, poruppu or kattubadi. At the time of permanent settlement of of zamindaris in this Presidency, such villages were excluded from the assets of zamindari for the purpose of fixing the peishcush or assessment payable by the zamindar to the Government, the jodi payable to him being alone included. The result of this was that such villages were thereafter regarded as held by the agraharamdars under the Government and subject to its right of resumption on valid grounds, and they were dealt with on that footing at the time of the subsequent inam settlement when they were enfranchised by the Government relinquishing its right of reservation in lieu of a fixed annual payment called quit rent. The jodi, however, continued to be payable to the zamindar as before but it was no longer indicative of the zamindars ownership and the agraharamdars undertenure of the village. This was why such a village was held not to fall under cl.(e) of S.3(2), Madras Estates Land Act, which included in the definition of estate villages held on a permanent undertenure in permanently settled zamindaris : Veerabhadrayya Vs. S.Venkanna . This is not, however, the position in respect of agraharam villages in Kalahasti zamindari. As pointed out by the Privy Council in Secretary of State Vs. Rajah of Venkatagiri, the permanent settelemtn of what were known as the four western zamindaris, namely Venkatagiri, Kalahasti, Bomvauzepalem and Karvetnagar, was not made in accordance with the practice described above which was prescribed by the Permanent Settlement Regulation (25 of 1802), but was made on quite different lines independently of the provisions of the regulation; that is to say, the peishcush was not based upon a computation of the assets of these zamindaris after excluding lakhiraj or revenue free lands and other lands paying only small quit rents or jodis but was fixed on the basis of a commutation of the military service subject to which the zamindaris were originally held.
The agraharams and other inam villages were thus not excluded from the zamindaris by the settlement and it was for this reason that their Lordships held in the case referred to above that the Government had no right of reversion in such inams comprised in the Venkatagiri zamindari. The position therefore is that the agraharam here in question which is in Kalahasti zamindari continued as before the permanent settlement to be held on an undertenure under the zamindar whose right has no become vested in the petitioner. (emphasis supplied)
115. Another Division Bench of this Court on 03.03.1955, in Madras (now Andhra) State Vs. Kalahasteeswaraswamy Temple and Anr consisting of Koka Subba Rao C.J and Bhimasankaram J, followed the decision of Privy Council in Secretary of Statev. Rajah of Venkatagiri (17 supra) and the decision in Krishna Yachendra v. Ramanujulu (7 supra) in deciding whether the village of Kalahasti, which formed part of Zamindari of Kalahasti, was correctly notified as Zamindari estate under Act XXVI of 1948. The Division Bench held:
2. The village of Kalahasti formed part of the ancient Zamindari of Kalahasti, which is one of the impartible estates included in the Madras Impartible Estates Act (II of 1904). In the year 1791-1792, the Rajah of Kalahasti granted the village in inam to the temple. At the time of the permanent settlement in 1802, peishkush was fixed in regard to the entire Kalahasti Zamindari not by taking into account particular assets of the Zamindari, but by commuting military service. (See Secretary of State V. Raja of Venkatagiri, ILR 44 Madras 864 : AIR 1922 PO 168 (A), and Navaneetha Krishna V. Ramanujulu Chetty, 54 Mad LW 120 : AIR 1942 Mad. 56(B).) The effect of that process was that the pre-existing inams, including the inam of the village of Kalahasti, were not excluded from the assets of the Zamindari.(emphasis supplied) The Division Bench held that inam of the village of Kalahasti continued to be held on a permanent under-tenure under the Zamindar and so could not have been notified as a Zamindari estate as defined under Section 2 (16) of Act XXVI of 1948 .
116. In the monumental work Land Tenures in the Madras Presidency by Sri Sounder Raja Ayyangar, an authority on land tenures in the Madras Presidency, the celebrated author also notes that in relation to Venkatagiri, Kalahasti and Karvetinagar, the peishkush was simply an equivalent for the military services rendered by them without reference to assets; that their peishkush was a proportion of the cost of the zamindars military establishment inclusive of amarams and kattubadis diminished by the amount of revenue derived from salt, sayer and abkari which were reserved to government.
117. In another important reference book on the subject written by another renowned author Sri V.Vedantachari, Advocate on the Madras Estates Land Act (I of 1908) (1947 edition) also, it was stated that in case of the four western palayams the zamindaris of Venkatagiri, kalahasti, karvetinagar and Sydapur, the peishkush was fixed on the basis of a commutation of the military services subject to which the zamindaris were originally held and it is further stated quoting the Privy Council decision in Secretary of State v. Rajah of Venkatagiri (17 supra) that agraharams and other inam villages were thus not excluded from the Zamindaries by the settlement and that the government had no right of reversion in such inams comprised in the Venkatagiri Zamindari.
The decision of the Privy Council and that of the High Courts of Madras and Andhra Pradesh on Kalahasti Estate are binding :
118. The above decisions of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra), Krishna Yachendra v. Ramanujulu (7 Supra) and Madras State (now Andhra) Kalahasteeswaraswamy Temple and Anr (32 supra), the latter two specifically dealing with grants in Kalahasti estate, are binding on this Court.
Effect of the Privy Council Judgment of 1922 in Secretary of State v. Rajah of Venkatagiri (17 supra) :
119. I shall now consider the binding nature of the judgment of the Privy Council of 1922 in Secretary of State v. Rajah of Venkatagiri (17 supra). In Yellappagouda Shankargouda Patil Vs. Basangouda Shiddangouda Patil , the Supreme Court held that decisions rendered by the Privy Council prior to its abolition under the Abolition of the Privy Council Jurisdiction Act, 1949 (which came into effect from 10-10-1949), abolishing the jurisdiction of the Privy Council in respect of appeals from India and conferring them on the Federal Court after that date, would have to be treated as a decision of the Federal Court under the 1949 Act and by fiction introduced by Article 374(2) of the Constitution of India, it has to be treated as if a judgment has been passed by the Supreme Court of India. In this view of the matter, it is not open to the respondents to contend that the decision of the Privy Council has to be ignored by this Court. Why the administrative order of the Dy.Collector dt.22-10-1909 is to be treated as outside his jurisdiction ?
120. In view of the above judgments directly relating to minor inams in Kalahsati Zamindari, it is clear the administrative order of confirmation of the grant passed by the Inam Dy. Collector dt.22.10.1909 (referred to in the judgement of the High court of Andhra in W.P.No.792 of 1952)/ dt.10.7.1911 mentioned in Ex.A5 Register of Inams holding that KCK is an out and out hereditary grant to be enjoyed by the God Sri Bhashikarla Swami of Sri Perambudur and is no longer part of the Zamindari estate of Kalahasti), is without any basis and is therefore, without jurisdiction.
121. The Inam Deputy Collector did not take note of the fact that a special commutation formula was applied for Kalahasti Zamindari in 1802 at the time of permanent settlement as declared in the above judgments. Consequently the State had no right to resume or assess to public revenue, inam or lakhiraj lands situated within the Kalahasti Zamindari and the State through the said official could not have held any investigation into such inams, deal with them under Inam Rules, or resume and assess them for public revenue. He failed to notice that KCK, being an inam estate within Kalahasti Zamindari (and not outside it), was outside the purview of enquiries by the State through Officers such as Inam Dy. Collector. Therefore, the administrative order of the Inam Dy. Collector dt.10.07.1911 recorded in Ex.A5 Register is absolutely without basis, is without jurisdiction and is a nullity.
122. In Kiran Singh v. Chaman Paswan , the Supreme Court held:
. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings
123. In Jagmittar Sain Bhagat v. Health Services, Haryana , this principle was reiterated :
9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a court or tribunal becomes irrelevant and unenforceable /inexecutable once the forum is found to have no jurisdiction. Similarly, if a court/tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The court cannot derive jurisdiction apart from the statute. In such eventuality the doctrine of waiver also does not apply. (Vide United Commercial Bank Ltd. v.
Workmen, Nai Bahu v. Lala Ramnarayan, Natraj Studios (P) Ltd. v. Navrang Studios and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar.)
124. Therefore the fact that it is passed without jurisdiction and is a nullity can be pleaded in this suit by the State and the mere fact that several years passed since the order, is irrelevant. Passage of time would not render a void administrative order valid. More over there is also no substance in the plea of respondents that KCK being an outright grant was outside the Zamindari. It continued to be part of the Zamindari within its geographical limits even after the grant by Zamindar.
125. The decision of this Court in W.P.No.792 of 1952 did not also notice how Kalahasti inams were dealt with in 1802 nor did it notice the above judgments by which an inam in Kalahasti was treated as inam estate but fortunately, it left the decision in the matter open to be reconsidered after the judgment of the Supreme Court in The State of Madras v. Srinivas Ayyangar (20 supra).
126. Therefore, another reason to say that the judgment in W.P.No.792 of 1952 of the High court of Andhra dt.12.9.1955 does not operate as res judicata, is to remember that in the last paragraph of the decision of this Court in W.P.No.792 of 1952 (see para 23 supra), it had observed that if the appeal preferred by the Government in the Supreme Court against the judgment of Srinivasa Ayyangar (19 supra) was allowed and if they are entitled under the provisions of the Act XXVI of 1948 to notify the same, the State was at liberty to do so. It was only thereafter that the State published Memorandum No.1122. J/56, Revenue dt.24-05-1957 (Ex.A1) treating KCK as an inam estate within Kalahasti Zamindari.
127. As stated therein, the main Zamindari estate of Kalahasti was taken over on 03-09-1952 under Act XXVI of 1948. Originally KCK was mentioned in the notification No.427 dt.06-10-1952 as an under- tenure estate in respect of which under the provisions of Section 1(4) of the Act, certain provisions of that Act would apply to it.
128. A reading of this Memorandum Ex.A1 dt.24.05.1957 indicates that in the 1st paragraph under the heading Irratum, the State notified that KCK, which had been notified as an under-tenure estate, would stand deleted.
129. In the latter part of Ex.A-1 in the Note, it was clearly stated in categorical terms that KCK, although not an under-tenure estate is a pre-settlement minor inam included in the assets of the unregistered portions of Kalahasti zamindari in Chittoor district and is deemed to have already been taken over by the Government along with the main zamin estates on 03-09-1952 under Act XXVI of 1948.
130. While deleting the categorisation of KCK as an under-tenure estate, in exercise of power under Section 1(5) of the said Act, the State had thus declared that as a pre-settlement minor inam included in the assets of the unregistered portions of Kalahasti zamindari, KCK is deemed to have already been taken over by the State along with Kalahasti estate. This Memorandum was within the reservation of the States right granted in the judgment dt.12.9.1955 in W.P.no.792 of 1952.
131. It may be that as the law stood on that day, only post-settlement minor inams in a Zamindari estate would vest in the State on the notification of the said estate under Section 1(4) of the Act in view of the Supreme Court decision in The State of Madras v. Srinivasa Ayyangar (20 supra) and may be, pre-settlement minor inams could not have been so declared, as was done in Ex.A-1.But this problem was further solved by a legislative act soon in 1959, Act XV of 1959 discussed below. The 1959 Act amended Act XXVI of 1948 retrospectively and also has a non obstante clause nullifying the effect of judgments rendered before 1959. I shall now refer to these aspects.
132. This is yet another formidable answer to the question of res judicata. The Andhra Pradesh Amendment Act XV of 1959 was passed amending Act XXVI of 1948. In particular it amended Section 3(b) by including pre-settlement minor inams along with post settlement minor inams and directing that such inams, included in the assets of the zamindri estate at the permanent settlement of that estate would stand transferred to the Government and vest in it, free from all encumbrances with effect on and from the notified date.
133. The reason why this amendment was introduced is set out elaborately in the Statement of Objects and Reasons to the said amending Act which is necessary to be noted:
ANDHRA PRADESH AMENDMENT ACT XV OF 1958 Under Section I(4) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 the Government may by notification appointed a date on which the provisions of that Act (other than Sections 1, 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68, which had already come into force from the date of commencement of the Act) shall come into force in any zamindari, under-tenure or inam estate. The Government had notified under that section a number of villages which were reported to be inam estates or under-tenure estates within the meaning of Section 2(7) or 2(15) of the Act. It was subsequently found that some of these villages were not really inam estates or under-tenure estates. Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) Amendment Act, 1951, was therefore enacted withdrawing the provisions of the main act (other than Sections, 1, 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68) from a number of such wrongly notified villages. It has since been brought to the notice of the Government that there are still a number of villages which have been wrongly notified. In some cases, the notification of an estate as an under-tenure estate may have to be cancelled because it is an inam estate which may have to be notified again after inquiry under Section 9 of the Act. As instances of such wrong notifications come to the notice of the Government from time to time, the Government consider it desirable to take general powers by amending the Act so as to enable them to cancel or amend a notification issued under Section 1(4) of that Act and also to make it clear that cancellation of a notification in respect of an estate does not prevent the Government from notifying the estate again. Clause 2 of the Bill provides for this.
In a decision reported in (1952) 2 MLJ 314 relating to Karuppur village of Ramanathapuram district, the Madras High Court held that darmila inams, i.e, (post-settlement minor inams) the income of which was included in the assets of the zamindari at the time of the permanent settlement, were protected under Section 20 of the Act and that they would not vest in the Government along with the main estate of which they formed parts. Based on this decision, the High Court subsequently quashed a number of notifications issued by the Government in respect of certain villages on the ground that the villages were only post-settlement minor inams and in some cases the High Court issued prohibitory orders restraining Government from interfering with the management of the landholder in respect of these villages. In view of the interpretation then placed by the High Court on the effect of Section 3(b) and Section 20 of the Act, the Government did not file any appeals against the decisions and became final. But the judgment of the Madras High Court in (1952) 2 MLJ 314 was later set aside in appeal by the Supreme Court in its judgment reported in (1956) SCJ 89 in which the Supreme Court has held that darmila inam villages fall outside the scope of Section 20 of Estates Abolition Act and that they would vest in the Government under Section 3(b) of the Act along with the main estate. This decision of the Supreme Court has recognised the automatic vesting of these villages under the notification relating to the main estates. But as the earlier decisions of the High Court regarding these villages based on the view held by the High Court in the Karuppur case have become final and operate as res judicata, the Government are unable to resume the management and administration of the darmila inams under the provisions of Estates Abolition Act. As it is necessary that these darmila inams should also be managed as parts of the main estates, it is considered necessary to make a specific provision in Act itself by a suitable amendment, so as to enable the Government to treat the minor inams of the category referred to above as forming part of the main zamin estate with effect on and from the notified date of that main estate, notwithstanding any judgment, decree or order of a Court to the contrary. Clauses 3 and 4 of the Bill seek to give effect to the above proposals.
134. Though this part of the Statement of Objects and Reasons does not deal with the pre- settlement minor inams, Section 4 of the Act clearly itself does away with any such distinction. Even pre-settlement minor inams were deemed to be taken over from the date on which the main estate was taken over. Section 4 of Act XV of 1959 further stated as under:
4. Removal of doubts: (1) For the removal of doubts it is hereby declared that every minor inam (whether post settlement or pre-
settlement whose income was included in the assets of the main zamindari estate at the permanent settlement of that estate shall be deemed to be, and always to have been, part of such zamindari estate, and included in and taken over by the Government along with the main estate with effect on and from the notified date applicable to that estate under any notification issued therefor under sub-section (4) of Section1 of the principal Act before the commencement of this Act.
(2) For the purpose of giving effect to the provisions of sub- section(1), the Government may issue such incidental and consequential orders as they deem necessary in regard to the adjustment or recovery of any amount already paid as compensation in respect of the minor inams or the deposit of additional compensation where it is due.
(3) The provisions of this section shall have effect notwithstanding anything contained in any judgment, decree or order of any Court or the issue of any separate notification in respect of the minor inam aforesaid with notified date different from that of the main zamindari estate.
135. Therefore, even though Ex.A-1 dt.24.5.1957 published on 06-06-1957 dealing with KCK as a pre-settlement minor inam was not in conformity with the provisions of Act XXVI of 1948 as they stood then, by virtue of amending Act XV of 1959 which was retrospective, and in particular Section 4 thereof, even pre-settlement minor inams whose income was included in the assets of the main zamindari estate at the permanent settlement of that estate, were made part of such Zamindari estate and included in and taken over by the Government along with the main estate with effect on and from the notified date applicable to that estate under any notification issued therefor under sub-section(4) of 1 of the principal Act before the commencement of Act XV of 1959.
136. Therefore, KCK which was admittedly a pre-settlement minor inam and which according to the decisions in Secretary of State v. Rajah of Venkatagiri (17 supra), Madras (now Andhra) v. Sri Kalahasteeswaraswamy temple (32 supra) and Krishna Yachendrav. Ramanujulu (7 supra), was not excluded from the estates of Kalahasti Zamindari, and therefore included in it at the time of permanent settlement of that estate, is deemed to have been taken over by the Government with effect from 03-09-1952, the date on which the main estate of Kalahasti was taken over. Therefore, even if there was any minor defect in Ex.A-1, it stood removed and validated by statute cannot be said to be in any manner defective after coming into force of Act XV of 1959.
137. Moreover, sub-section (3) of Section 4 of Act XV of 1959 nullifies the effect of any judgment of any Court in respect of such pre-settlement minor inams whose notified date was indicated differently from that of the main Zamindari estate. Therefore since the basis of the decision in W.P.No.792 of 1952 (that the grant was not part of Zamindari estate of Kalahasti) was taken away by the second paragraph in Ex.A-1 and Act XV of 1959, the effect of the judgment in W.P.No.792 of 1952 also stood nullified, and the later part of Ex.A-1 treating KCK as having been included in the assets of Kalahasti Zamindari as on 03-09-1952, stands. Without noticing Act XV of 1959, the trial Court erroneously came to the conclusion that the judgment in W.P.No.792 of 1952 operates as res judicata and that it binds all Courts. It also erroneously held that since it was not challenged in appeal, it is binding and the Collector is estopped from questioning it.
138. Once the effect of decision in W.P.792/1952 stood thus nullified by force of legislation, and for the reasons mentioned above, it ceases to operate as res judicata. In this view of the matter also, the decision in W.P.No.792 of 1952 would not operate as res judicata.
139. Consideration of certain ancillary contentions relating to the above issue :
I. (a) The counsel for respondents vehemently contended that the State had not adduced any evidence in this suit as to whether KCK was included in the assets of the Zamindari at the time of permanent settlement except relying on the decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra); that the said decision dealt with Venkatagiri estate and not with regard to Kalahasti estate, and any observations made therein with regard to Kalahasti estate in relation to the inclusion of minor Inams in the assets of the Zamandari of Kalahasti at the permanent settlement of that estate, cannot be said to be binding and those observations have to be ignored.
(b) The counsel for respondents relied on Section 3 (d) of the Act 26 of 1948 (which states that with effect of and from the notified date, the Government may take possession of the estate and all accounts, registers, pattas, muchilkas, maps, plans and other documents relating to the estate which the Government may require for administration thereof) and the decision of this Court in Sri Rajah Velugoti Rangamannar Krishna Yachendra Bahadur Varu v. State of Andhra Pradesh and contended that since all the records are in possession of the State, unless the State produces them it cannot be said to have discharged the burden of proving the above fact. They also contended that the Sanad of Kalahasti zamindari was not produced by the State. I do not agree with the said submission since in my opinion, the State had discharged the burden.
(c) I may state that the nature of the land (KCK) granted as inam located in the erstwhile Kalahasti Estate is being considered. The nature of this land depends on its relationship with the main Zamindari in which it is located. In the following judgments concerning the main Zamindari of Kalahasti, the issue had been considered. In my opinion, these judgments are relevant under Sections 42 and 13 of the Evidence Act.
(d) In Krishna Yachendra v. Ramanujulu (7 Supra) and in Madras (now Andhra) v. Sri Kalahasteswara Temple (32 supra), the Madras High Court and this Court followed the judgment of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) and declared categorically that, at the time of permanent settlement in 1802 peishcush was fixed in regard to the entire Kalahasti Zamindari, not by taking into account the assets of the Zamindari, but by commuting military service, and that the effect of that process was that pre-settlement minor Inams were not excluded from the assets of the Zamindari, i.e., that they were included in the assets of the Zamindari. Therefore, these two decisions are binding on this Court.
(e) Section 42 of the Indian Evidence Act, 1872 states :
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41 : --
Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
(f) In Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru , the Supreme Court held that where a decision was given by Privy Council as to nomination of a particular person as Padadayya (Mathadhipati) of a math and subsequently a suit was filed by plaintiff in respect of the same matter but the plaintiff was not party to earlier proceedings before the Privy Council, the decision of the Privy Council, though did not bind plaintiff on principle of res judicata, it was definitely a relevant circumstance to be taken note of in view of Section 42 of the Indian Evidence Act, 1872. The Supreme Court observed :
8. The above part, what is more material is that the Privy Council of Jamkhandi State having held in an earlier proceeding that Shivalingayya was duly nominated and installed as Padadayya inasmuch as he had been so nominated by Shankarayya before his marriage, which is the only ground on which Shivalingayyas nomination has been held to be vitiated in the present proceedings by the High Court, we are of the firm view that the contrary conclusion arrived at in the present proceedings in favour of plaintiff does not deserve to be confirmed. It may be that principle of res judicata has no application, despite what has been stated in Explanation VI of Section 11, CPC, inasmuch as in the earlier proceeding the present plaintiff was not a party and Andanayya (the plaintiff herein) had not claimed possession of the property as Padadayya but as Charanti contending that as the office of Padadayya was lying vacant because of invalidity in the nomination and the installation of Shivalilngayya, he had stepped into the shoes of Padadayya. There is, however, no denial that the foundation of the case of Andanayya was the infirmity in the nomination and the installation of Shivalingayya as Padadayya; and it is precisely this which the Privy Council had not accepted.
9. In the aforesaid premises, the judgment of the Privy Council, even though the same did not bind the plaintiff on the principle of res judicata, was definitely a relevant circumstance to be taken note of, because of what has been stated in Section 42 of the Evidence Act.
What we, however, find is that the High Court had only referred to the earlier decision without examining the question as to whether law permitted a contrary view to be taken on the self-same issue. According to us, the issue having been finally determined at the highest level, the same could not have been re-examined, which exercise, to start with, was undertaken even by a Civil Judge.
The Supreme Court categorically held that the issue whether the nomination and installation of that person as Padadayya/Mathadhipati having been finally determined at the highest level by the Privy Council, the same could not have been re-examined in the subsequent proceeding.
(g) In Tirumala Tirupati Devasthanams v. K.M. Krishnaiah , the Supreme Court held that even a judgment not inter-partes was relevant. In that case, the documents in favour of the appellant deity were filed in an earlier litigation to which the respondents were not parties. Still the documents and the findings as to title of the appellant to the land in the previous judgement were relied on invoking Section 13 of the Evidence Act, 1872 as evidence of an assertion of a right to property in dispute. The Court declared:
8. It was argued by the learned counsel for the plaintiff-
respondent that the earlier judgment in OS No. 51 of 1937 dated 15-6-1942 was rendered in favour of the TTD against Hathiramji Mutt, that the plaintiff was not a party to that suit and hence any finding as to TTDs title given therein is not admissible as evidence against the present plaintiff in this suit.
9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishnarao Kango v. Narayan Devji Kango speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a transaction in which a right to property was asserted and recognised. In fact, much earlier, Lord Lindley held in the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani (ILR at p. 198) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinomoni v. Brojo Mohini and Ram Ranjan Chakerbati v. Ram Narain Singh by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sundar Mal.
10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent-plaintiff and hold that the TTD could rely on the judgment in OS No. 51 of 1937 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit. Point 1 is held accordingly against the respondent.
(h) In my opinion, the decision whether minor Inams were included in the assets of the Zamindari at the time of permanent settlement and whether KCK bears all the features of a pre settlement minor inam liable to be taken over along with the main Kalahasti Zamindari, is a matter of public nature and is relevant to the enquiry in the present litigation and the judgment of the Privy Council as well as the other two judgments, one of the Madras High Court and the other of this Court referred to supra, are relevant and binding on me. It may be that respondents herein are not parties to them, but they definitely constitute strong evidence as to the nature of rights of parties vis--vis the Government and support of the plea of the State that minor Inams in Kalahasti estate were included in the assets of the Zamindari at the time of permanent settlement. There is also a presumption that when the highest Court of the land at that time, namely the Privy Council, referred to certain documents and on the basis of those documents decided the lis before it, the contents of the said documents were accepted by it. Even if those very documents are not now filed in this litigation, the extracts of the contents of those documents in the decision of the Privy Council cannot be doubted. Even the commentary on Land Tenures in the Madras Presidency by Sounder Raja Iyyangar, which is considered to be one of the leading commentaries on the topic has noted at pg.125 thereof that in the case of Kalahasti (as in the case of Venkatagiri and Karvetnagar) at the time of permanent settlement, the peishcush was simply an equivalent for the military services rendered by them without referring to assets. This was also reiterated by eminent author Sri Vedantachari in his commentary on the Madras Estates Land Act (I of 1908).
(i) In the absence of any contrary evidence adduced by the respondents displacing the above evidence, the State is held to have discharged the burden of proof placed on it on this issue. Therefore, this contention is rejected.
II. (a) It was also contended by the counsel for respondents that the latter part of Ex.A.1, i.e., note under which KCK was described as pre-settlement minor Inam included in the assets of the unregistered portions of Kalahasti Zamindari estate on 03.09.1952 under Act XXVI of 1948 is not a notification and that only the earlier part of Ex.A.1 Irratum (which deleted the description of KCK as an under- tenure estate) is a notification. It is the contention of the respondents that Ex.A.1 cannot be construed as a notification under Section 1 (4) of the Act declaring KCK as not an inam and as part of estate of Kalahasti. I do not agree with the said submission.
(b) Section 2 (9) of Act XXVI of 1948 describes the term notification as a notification published in the Andhra Pradesh Gazette. There is no dispute that there was a publication on 15.10.1952 of Notification No.427 dt.06.10.1952 appointing the date on which certain provisions of Act XXVI of 1948 would come into force in certain under-tenure estates in Chittoor District including KCK (Entry 23). It is not disputed that this was a notification under Section 1 (4) of the Act. After the judgment of this Court in W.P.No.792 of 1952 on 12.09.1955, Ex.A.1 Gazette Publication dt.06.06.1957 was issued. It bears the heading Madras Estates (Abolition and Conversion into Ryotwari) Act - Erratum to Notification and a further heading Memorandum No.1122 J/56, Revenue, dt.24.05.1957. As extracted above, this consisted of two parts: one with a heading Irratum and another with a heading Note. Under the first part of Ex.A1, in view of the decision in the Writ Petition No.792 of 1952 (that KCK is not an under-tenure estate), its description as an under-tenure estate was deleted. Simultaneously, under the second part described as note, KCK was treated as a pre-settlement minor Inam included in the assets of the unregistered portions of Kalahasti Zamindari and the State declared that it is deemed to have already been taken over by the Government along with the main Zamindari estate of Kalahasti on 03.09.1952.
(c) The State was empowered to do this in view of Section 1 (5) of Act 26 of 1948 inserted by the amending Act XV of 1959 (Section 2 thereof) which states :
1.(5) The Government may, by notification, cancel or modify any notification issued under sub-section (4) in respect of any estate, but the cancellation shall not be deemed to affect the power of the Government under sub-section (4) again to extend the rest of this Act to that estate, (and the notification issued under sub-section (4) may be issued so as to have retrospective effect).
(d) Since the latter part with the title Note along with the former part title Irratum are both part of the same Gazette Publication Ex.A.1 dt. 06.06.1957, in view of Section 2 (9) of the Act, even with regard to the latter part titled note, the publication in the Gazette dt.06.06.1957 (Ex.A.1) of the Memo dt.24.05.1957 has to be construed as a notification issued in exercise of the power under the latter half of Section 1 (5). As explained supra, although at the time of publication in the Andhra Pradesh Gazette on 06.06.1957, the publication may have been defective as it deals with pre settlement minor inams, the defect, if any, stands removed after Act XV of 1959 was passed introducing Section 1(5) (by Section 2 thereof) and Section 4 thereof, and it is a valid notification under the Act.
(e) I also do not agree with the contention of the counsel for respondents that since the publication in the Andhra Pradesh Gazette dt.06.06.1957 (Ex.A.1) uses the words Memorandum/note, it cannot be construed as a notification. In Subhash Ramkunar Bind alias Vakil v. State of Maharashtra , the Supreme Court observed:
20. notification in common English acceptation means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the official Gazette, the same cannot but mean a notification published by the authority of law in the official Gazette In my opinion, Ex.A.1 meets this requirement without any doubt. Merely because it did not use for the second part thereof titled note, the heading notification, it cannot be said that it was not a notification.
(f) Admittedly, it also said Erratum to notification in its heading. By issuance of the Erratum, the error in the earlier notification treating KCK as under-tenure estate was corrected by treating it as a minor pre settlement Inam included in the assets of the Kalahasti Zamindari. Therefore, the notification No.427 dt.06.10.1952 is deemed to have been amended after issuance of the errata to reflect the nature of KCK as a part of Kalahasti estate and deeming it to have been taken over by the State at the time when the main Zamin estate was taken over. The counsel for respondents, not having disputed that Ex.A.1 is not a notification under Section 1 (5) (insofar as it deleted KCK from the category of an under-tenure estate) cannot, in the same breath, contend when it comes to the latter part titled note, that Ex.A.1 would not constitute notification.
(g) It is also pertinent to note that Section 2 (10) of Act XXVI of 1948 defines the term notified date as under :
2.(10) notified date, in relation to an estate, means the date appointed by a notification issued under Section 1, sub-
section (4), as the date on which the provisions of this Act (other than Sections 1, 2, 4, 5, 7, 8, 9 (58-A), 62, 67 and 68) shall come into force in the estate, and the word notified shall be construed accordingly;
It cannot be disputed that as regards the estate of Kalahasti (the main Zamindari Estate), 03.09.1952 had been fixed as the appointed date (the second para in Ex.A.1 gives this information). In my opinion, the Ex.A.1 Gazette Publication read with Act XV of 1959 has the undoubted effect of treating KCK as a pre-settlement Inam included in the assets of Kalahasti Zamindari and as having been taken over by the State along with the main estate on 03.09.1952, in view of the clear provisions of Act XV of 1959.
III. The counsel for respondents also contended that since Ex.A.5 (an extract of Register of Inams in relation to KCK) filed by the State, mentioned that KCK was an unconditional and hereditary grant of the Zamindari of Kalahasti to God Sri Bashikarla Swamy of Sri Perambadur, it ceased to be part of the Zamindari estate with effect from the date of the grant in 1863, and therefore, could not have been included in the assets of the Zamindari at the time of permanent settlement. Reliance is also placed on the finding in W.P.No.792 of 1952 in this regard. As explained earlier, the fundamental basis of the above administrative order is non-existent, since at the time of permanent settlement, minor inams were not excluded from the assets of the Zamindari for computation of peishkush which was fixed on basis of commutation of the military service. I am also of the opinion that the mere fact that there was a grant without rent/Jodi by the Zamindar to the Devasthanam would not make KCK fall outside the geographical limits of the Zamindari. The question to be asked is whether the rent-free grant would automatically take the granted land out of the Zamindari. I have already held supra that KCK is part of Kalahasti Zamindari and was included in the assets of the Zamindari. Therefore, I do not find merit in the contention of the counsel for respondents that because there is an out and out grant as recorded in Ex.A.5 to the Devasthanam, KCK ceased to be the part of Zamindari. Point (4) :-
140. Under this point, I shall consider the following points arising under the A.P. (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (Act XXXVII of 1956) :
(i) What is the effect of Memo No.3082-67/26 dt.13.02.1968 of the Government of Andhra Pradesh Revenue (K) Department (Ex.B.16) which was published in the Chittoor District Gazette on 25.11.1975 (Ex.B.7) ?
(ii) Whether the said memo would override Ex.A.1 publication in the Gazette dt.06.06.1957 referred to supra ? and
(iii) Whether the issuance of this Memo dt.13.02.1968 operates as an estoppel against the State ?
141. The contents of Ex.B.16 have been extracted supra. The body of Ex.B.16 starts with the words The Government Sri Perumbudur Temple was published as a notification in Ex.B.3/B.7.
142. The learned Government Pleader appearing for the State contended that this Memorandum Ex.B.16, or its publication under Ex.B.3/B.7 in the Gazette, is not pursuant to exercise of any statutory power. He further contended that in the face of the earlier decision of the State published under Ex.A.1 and the Amendment Act XV of 1959, it was not open to the State to treat KCK as an Inam governed by the provisions of the Andhra Pradesh Inams (Abolition and Conversion into Ryotwari) Act, 1956 (Act XXXVII of 1956); such a decision of the Government is without jurisdiction when Ex.A1 treating it as part of the Kalahasti Zamindari Estate was not annulled or cancelled in any way thereafter; that Ex.A.1 was not challenged by either the Sri Bashyakaraswamy Devasthanams (the grantee) or Defendant No.1 by way of a writ petition or other proceeding in any competent court and that as long as Ex.A.1 stands, Ex.B.16 is void and is of no legal effect. He therefore, contended that Ex.B.16 would not estop the State from contending that KCK is not an Inam governed by Act XXXVII of 1956.
143. The counsel for the respondents, on the other hand, contended that Ex.B.16 is a valid notification and it superseded Ex.A.1 and it should be treated as having been issued in exercise of the power conferred on the Government under Section 16 of Act XXXVII of 1956.
144. Section 16 states :
16. Power to remove difficulties If any difficulty arises in giving effect to the provisions of this Act, the Government may make such orders, not in consistent with the said provisions, as appear to them to be necessary or expedient for the purpose of removing the difficulty.
145. The counsel for respondents also contended that the Tehsildar, Kalahasti in his proceeding L.Dis.1703/71 dt.06.03.1972 rejected the application of the 1st defendant for grant of patta under Section 3 (4) of Act XXXVII of 1956; on an appeal in IA.No.1 of 1973, the Sub- Collector, Chandragiri on 16.08.1974 (Ex.A2) followed this memo and directed the Tehsildar, Sri Kalahasti to issue a patta to Defendant No.1; that this decision was confirmed by this Court in W.P.No.1741 of 1975 (Ex. A4= Ex.B.10) dt.15.10.1976 to which the State was a party; and therefore, the State is estopped from contending that Ex.B.16 is not valid, when it has not questioned the decision in Ex.B.10.
146. A reading of Ex.B.16, particularly, the portion subject appears to indicate that the intention of the Government was to issue some clarification as to whether KCK is a forest land or whether it is an Inam land governed by Act XXXVII of 1956. It is also pertinent to note that there is no reference in Ex.B16 to Ex.A.1 Gazette publication issued under Act XXVI of 1948 treating it as part of Kalahasti Zamindari Estate and having already vested in the Government. More importantly, unless Ex.A.1 notification dt.24.5.1957 (which treated KCK as a pre-settlement minor Inam included in the assets of the Kalahasti Zamandari and deemed it to have already been taken over by the Government along with the main Kalahasti Estate on 03.09.1952) is cancelled in exercise of the power of the Government under Section 1 (5), its legal effect cannot be effaced by merely issuing a Memorandum like Ex.B.16.
147. A Memo like Ex.B16, based on ignorance of the earlier notification Ex.A1 dt.24.5.1957 issued under the Act XXVI of 1948, cannot be help the respondents at all unless there is a notification under the same Act cancelling Ex.A1. In this view of the matter, I am of the opinion that Ex.B.16 cannot override Ex.A.1 and in view of Ex.A1, Ex.B16 is of no effect. Therefore the finding of the trial Court that the said Memo dt.13-02-1968 binds the Collector is erroneous.
148. The counsel for the respondent had also contended that nothing had been done pursuant to Ex.A.1 notification, that Ryotwari settlement was also not done, and therefore, Ex.A.1 was never acted upon.
149. This contention is not correct in view of Ex.A.13. Ex.A.13 is G.O.Ms.No.997 Revenue Department dt.07.06.1961. Under this G.O., the Government approved the scheme report of the Settlement Officer, Nellore for the introduction of settlement rates in the taken over Zamindari and under-tenure Estates in Kalahasti Taluq of Chittoor District. It was set out in the said G.O. that for the information of the public, it is notified that Ryotwari Settlement in accordance with notification issued under Section 22 of Act XXVI of 1948 and approved in G.O.Ms.No.2617 Revenue dt.14.12.1959 and published at pgs.97 to 109 of Part-I of the Andhra Pradesh Gazette dt.28.01.1960, would be given effect to in the taken over Estates specified in the Schedule w.e.f. 01.07.1961.
150. In the schedule to this notification, Entry-91 stated as under :
91.
23. Kothacheruvu Khandriga (Also called Kothacheruvu Zamin near Gudimallam) Originally notified as U.T. Estate of Andavalagunta group estates in Govt.
memo 41008/52 Rev. dt.6-10-52 published at pp.1490 to 1492 of part I F.S.G.G.15-10-52 and subsequently amended and treated as pre-settlement minor inam included in the assets of the unregistered portion of the Kalahasti Zamindari i.e. the zamin in Govt. Memo. No.1122 J/57 dt.25-5-57 published at p.1053 part I of FSGG dt.6-6-57.
151. The above Government order clearly indicates that Ryotwari Settlement proceedings were also undertaken under the provisions of Act XXVI of 1948 in respect of KCK as also another 195 Zamindari Estates and 208 under-tenure Estates. It is difficult to believe that the State Government while issuing Ex.B.16 was unaware of either Ex.A.1 or Ex.A.13 and the only possible explanation for the Memo Ex.B.16 could be that Government was wrongly advised to issue it without cancelling Ex.A1 notification dt.24.5.1957 issued under Act XXVI of 1948.
152. I also do not agree with the contention of the counsel for respondents that Ex.B.16 could be traced to Section 16 of Act XXXVII of 1956 (referred to supra) for the reason that Ex.B.16 itself makes no reference to Section 16. Moreover, in the face of Ex.A.1 notification as validated by Act XV of 1959 and as implemented under Ex.A.13 (mentioned supra), unless KCK was de-notified again in exercise of power under Section 1 (5) of Act XXVI of 1948 so as to bring it out of the ambit of the said Act, it is not possible to treat it as an Inam governed by Act XXXVII of 1956. In this view of the matter, when KCK was not an Inam and had already vested in the Government as being part of Kalahasti Zamindari Estate, there could not have been any exercise of power under Section 16. Therefore, reliance on Section 16 by the respondents is misplaced.
153. Also, the same parcel of land cannot be simultaneously part of an Estate covered by Act XXVI of 1948 and also an Inam (non- estate) covered by Act XXVII of 1956. Since KCK was notified as an Estate long prior to Ex.B.16, on the date when Ex.B.16 was issued, KCK was no longer a non-estate inam which could be notified under Act XXXVII of 1956. Therefore, I have no hesitation to hold that Ex.B.16 is null and void and has no legal effect.
154. Since Ex.B.16 is contrary to law and is without jurisdiction, the State cannot be said to be estopped by it since it is settled law that there can be no estoppel against the law (Rajasthan State Industrial Development and Investment Corporation v. Subash Sindhi Coop Housing Society and Elson Machines (P) Ltd. v. CCE ). Point (5):- I will now consider the following points arising under the A.P.(Andhra Area) Abolition of Inams and Conversion into Ryotwari Act,1956 (Act XXXVII of 1956):
(i) Whether Ex.A.2 order of the Sub-Collector of Chandragiri dt.16.08.1974 in IA.No.1 of 1973 and its confirmation by this Court in W.P.No.1741 of 1975 placing reliance on Ex.B.16 has any effect on this suit ?
(ii) Whether the decision in the W.P.No.1741 of 1975 (Ex.B.10) would operate as res judicata ? And
(iii) Whether the State is entitled to a declaration that these two proceedings are ab initio void and are of no effect?
155. To deal with these issues, the provisions of the A.P. (Andhra Area) Inams Abolition and Conversion into Ryotwari) Act, 1956 i.e Act XXXVII of 1956 have to be considered. Section 1(2) of the said Act states that the said Act applies only to the inam lands described in clause (c) of section 2. Section 2(c) defines Inam land to mean any land in respect of which the grant in inam has been made, confirmed or recognised by the Government but does not include an inam constituting an estate under the Madras Estate Land Act,1908. So that Act was intended to apply to inams which are not estates under Act XXVI of 1948 and lays down the procedure for grant of ryotwari pattas to the inamdar, occupants or institutions. The 1st defendant had applied to the Tehsildar, Sri Kalahasti in 1971 under Section 3(4) of Act XXXVII of 1956 for a patta on the assumption that KCK was a non-estate inam and hence Act XXXVII of 1956 would apply. By order L.Dis.1703/71 dt.06.03.1972, the Tehsildar, Sri Kalahasti rejected the said application. The 1st defendant questioned this order before the Sub-Collector, Chandragiri in appeal in I.A.No.1/1973 relying on Ex.B.16 Memorandum dt.13.2.1968. He passed Ex.A2 order dt. 16.8.1974 in favour of 1st defendant stating that in view of Ex.B-16 and order in W.P.792/1952, the Tahsildar ought not to have refused to grant a patta to him.
156. When this was questioned before this Court in W.P.No.1741 of 1975 by certain ryots of KCK, this Court dismissed the said writ petition on 15.10.1976 (Ex.A4=B10). One of the reasons for dismissing the Writ Petition was that the petitioners therein did not file any material to show that they are ryots of the land. Therefore, this Court doubted their locus standi to file the Writ Petition. This Court held that in W.P.No.792 of 1952, KCK was held to be not part of the Zamindari village and under Ex.B.16 dt.13.2.1968 also the State had taken the stand that KCK continued to be an Inam land. It, therefore, upheld the right of 1st defendant to a ryotwari patta for KCK.
157. The learned Government Pleader contended that while deciding the issue of res judicata, it is the competency of the original Court or Tribunal or authority which must be considered and if that decision was not within its jurisdiction, the fact that the said decision was confirmed in appeal or in Writ Petition would not make it valid and binding. He relied on Madduri Venkataratnam v. Mangu Ramadas and others and Sri Krishna Salt Works v. State of A.P. . He also contended that a question of jurisdiction of the Court, tribunal or authority or of a procedure, or of a power on a question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit and cited Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy .
158. In Madduri Venkataratnam (45 supra) decided by Sri Koka Ramachandra Rao J, a Writ Petition was filed under Article 226 of the Constitution of India seeking a writ of certiorari for quashing an order of the Estates Abolition Tribunal, East Godavari in T.A.No.1 of 1966 dt.26.03.1968. Reliance was placed by the petitioners on a decision of the Assistant Settlement Officer dt.23.05.1959 as confirmed by the Estates Abolition Tribunal (District Judge, East Godavari at Rajahmundry) in AS.No.44 of 1959 dt.13.08.1960 and the confirmation of the said orders in WP.No.709 of 1960 and in WA.No.72 of 1961.
159. This Court held that the previous decisions, including the decisions of the High Court in that case, were rendered under Section 15 of Act XXVI of 1948 and that under that Section, the claim of a ryot for patta (which fell under section 11 of the Act) could not have been gone into and only an enquiry into a claim by a landholder could have been gone into. It held that in an enquiry under Section 15 of the Act XXVI of 1948, any decision given with regard to the ryotwari patta under Section 11 of the said Act or with regard to a dispute falling under Section 56 of the said Act would be clearly outside the scope of the enquiry under Section 15 and such a determination or finding on such question would not have a binding effect so as to preclude an enquiry into the said dispute when it is properly raised under the appropriate Section (Section 56). In other words, if a decision of a tribunal was without jurisdiction, the fact that it was affirmed by the High court would make no difference. Koka Ramachandra Rao J observed :
15. It is well established that any decision or finding given without jurisdiction is void and would not have the effect of res judicata. Even assuming that for the purpose of determining the claim of the landholder for a ryotwari patta, the Settlement Officer had to incidentally go into the question as to whether there were any ryots in possession of the lands, such a decision which was rendered in respect of the incidental matter, would not have a binding effect.
Further, in determining the claim of the land-holder for a ryotwari patta it was unnecessary to record any finding with regard to the rival claims for a patta of the petitioner and Venkatanarasamma. The finding in the previous proceedings is a finding which is neither relevant nor necessary for the purpose of an enquiry under Section 15 of the Act, and I do not think such a finding can be treated as final or having the effect of res judicata. For the foregoing reasons, I am unable to agree with the view taken by the Tribunal that the present dispute raised by the petitioner under Section 56, is barred by res judicata.
16. It is well settled that in applying the principle of res judicata the competency of the original court or the Tribunal out of which the proceedings arose, should be considered. The fact that the matter was carried in appeal or that it was confirmed in a Writ Petition, does not render the decision valid or binding if the decision was not within the jurisdiction of the Tribunal. Even assuming that there was a decision under S.11 still, it cannot be said that there was any decision with regard to the matters falling under Section 56 of the Act. Therefore the present dispute which falls under Section 56 of the Act, cannot be said to be barred by reason of the earlier decision of the Settlement Officer or the Tribunal as confirmed by the High Court in the writ proceedings.
160. In Sri Krishna Salt Works (46 supra), a Division Bench of this Court also took a similar view. In that case, in an earlier Writ Petition the High Court had upheld the order of Board of Revenue appointing an expert to localize the land and for relaying the boundary between two villages. After demarcation, the appellant was held entitled to patta for a lesser extent than what he had been granted. The appellant filed a civil suit contending that the suit schedule land is not communal poramboke but a ryoti land belonging to him and for consequential injunction restraining the Government from interfering with his possession of the land. The suit was dismissed saying that the judgment of the High Court operates as res judicata. On appeal, this Court held in favour of the appellant. It held that the High Court had merely upheld the order of the revenue authorities without specifying the extent of land for which the patta was to be granted under Act XXVI of 1948. So such a decision, even by the High Court, would not operate as res judicata in a subsequent suit for a declaration that the suit land was ryotwari land belonging to plaintiff. It held that if any decision is rendered by the High Court on a matter on which it had no exclusive or even concurrent jurisdiction, the order has to be traced to the order of the Tribunal under special enactment to consider the plea of res judicata. It also held that an aggrieved party can maintain a suit questioning the correctness of the order passed by the statutory authority in a Civil Court and even if he approaches the High Court and suffers an adverse order prior to approaching Civil Court, it would not operate as res judicata.
161. The above Division bench followed the decision of the Supreme Court in Mangu Ram v. M. Venkataraman . In that case, the Supreme Court held that the order of a High Court dismissing a Writ Petition questioning the order of a Settlement Officer under Act XXVI of 1948 is legal and binding on the parties only to the extent that it could have determined the question before him, i.e., the Settlement Officer and that the rejection of the Writ Petition did not and could not clothe the order with jurisdiction which the Legislature had not conferred. Following this principle, the Division Bench held that the decision rendered by the Settlement Officer would not operate as res judicata in a subsequent proceeding under Section 56 in the course of which alone the right of Ryotwari Patta could be determined. The trial court being unaware of these decisions and the principle laid down therein, appears to have been overawed by the fact the High court had already expressed a view in favour of the respondents and erroneously held that such view is therefore binding on it, a court subordinate to the High Court, and also on the State.
162. In Mathura Prasad Bajoo Jaiswal (47 supra) the Supreme Court held that a question relating to jurisdiction of a court cannot be deemed to be finally determined by an erroneous decision of the Court. It held :
10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties.
But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
163. Since KCK was treated as part of the Kalahasti estate under Ex.A.1 which notification was validated by Act XV of 1959 and was never questioned by any party till date, KCK cannot be considered as an Inam governed by Act XXXVII of 1956. I have already held that Ex.B.16 is void and has no legal effect. I have also held that the decision in W.P.792/1952 would not operate as res judicata. Therefore, the decision of the Sub-Collector, Chandragiri in IA.No.1 of 1973 dt.16.08.1974 (Ex.A.2) basing on Ex.B16 or its confirmation by this Court in W.P.No.1741 of 1975 (Ex. B.10) on 15.10.1976 basing on both Ex.B16 and judgment in W.P.No.792/1952 is of no avail and cannot aid the defendants.
164. This conclusion is based on account of the doctrine of Dependent Orders coming into operation. In G. Ramegowda v. Spl. Land Acquisition Officer , appeals were filed in the High Court challenging the awards of a Land Acquisition Officer with a delay. The High Court condoned the delay. Challenging the orders of condonation of delay, Special Leave Petitions were filed in the Supreme Court. Leave was granted by the Supreme Court. Pending decision in such Civil Appeals, the High Court decided the main appeals reducing the compensation awarded by the Land Acquisition Officer. When the Civil Appeals against the condonation of delay came up for hearing, the Government Pleader contended that since the main appeals in the High Court had been disposed of, the Civil Appeals against the orders condoning the delay would not survive and have to be dismissed. The Supreme Court rejected this argument. It observed:
9. Shri Veerappa submitted that, during the pendency of the present appeals, the High Court had heard and disposed of the appeals before it on the merits substantially reducing the compensation; that appellants have already preferred SLP Nos. 2319, 2320, 2493 of 1974 against that judgment and that the present appeals, preferred as they are against the mere condonation of delay, do not survive at all and must be held to have become infructuous.
10. We might, perhaps, deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called dependent orders and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals, would be rendered nugatory. The submission of Shri Veerappa is, therefore, insubstantial.(emphasis supplied)
165. One also needs to consider whether the Sub-Collector, while deciding the appeal against an order passed by the Tahsildar under Section 3(4) of Act XXXVII of 1956, could have decided whether the land was an Estate or not under the provisions of Act XXVI of 1948, the latter being within the purview of the tribunals mentioned under the Act XXVI of 1948.
166. In Konduru Ramana Reddy v. The State of Andhra Pradesh , a suit was filed by ryots holding lands in Somavarapadu village contending that it was an Estate covered by Act XXVI of 1948, that the provisions of Act XXXVII of 1956 are not applicable and that the State could not take steps under the latter Act. The State opposed the suit contending that Somavarapadu was not an Estate and that the Estates Abolition Tribunal had held that the said village was not an Estate and the same had been confirmed by this Court in a writ petition and the said decisions operated as res judicata under Section 11 of CPC. It also pleaded that the Civil Courts jurisdiction to make an enquiry is barred under Sections 14 and 15 of Act XXXVII of 1956.
167. A Division Bench of this Court consisting of Alladi Kuppuswamy (as he then was) and Sriramulu JJ held in Konduru Ramana Reddy (50 supra) that Somavarapadu was an Estate within the meaning of Section 3 (2) (d) of the Madras Estates Land Act, 1908 and so it could not have been an Inam land within the meaning of Act XXXVII of 1956 and the State could not initiate any steps under the latter Act against them. It observed :
Clause (2) of Section 1 of the Inams Abolition Act, makes the Act applicable only to Inam lands defined in clause (c) of Section 2. Section 2 (c) defines Inam land to mean any land in respect of which the grant in inam has been made, confirmed or recognized by the Government, but does not include an inam constituting an estate under the Madras Estates Land Act, 1908 (Madras Act I of 1908) Under Section 3 of the Inams Abolition Act, the Tahsildar may either suo motu, or on application, enquire into the questions
(i) whether a particular land in his jurisdiction is an Inam land;
(ii) whether such Inam land is in ryotwari, Zamindari or Inam village; and (iii) whether such Inam land is held by an institution, and give a decision in writing. Any party aggrieved by the decision of the Tahsildar, has a right to appeal to the Revenue Court. Every decision of the Revenue Court, and if no appeal is filed the decision of the Tahsildar is binding on all the persons claiming any interest in the land.
A perusal of the provisions of the Act and the object for passing the Inams Abolition Act, reveals that the very foundation of the jurisdiction of the Tahsildar, to take steps under the Inams Abolition Act, was that the land, in question, is an Inam land, as defined under the Act. Under Section 3, the Tahsildar has no jurisdiction to decide whether a particular land is, or is not an estate. No machinery has been provided in the Inams Abolition Act for deciding the question, whether a particular land is or is not an estate.. (emphasis supplied)
168. The said observations apply on all fours to the present case. Since the authorities under Inam Abolition Act XXXVII of 1956 do not have jurisdiction to decide whether KCK is or is not an Estate, a matter to be decided by the competent authority under the Estates Abolition Act XXVI of 1948, it cannot be said that the Sub-Collector had jurisdiction to decide that it continued to be an Inam governed by Act XXXVII of 1956 particularly when Ex.A.1 Memorandum dt.24.5.1957 notified on 6.6.1957 read with Act XV of 1959 has notified that KCK is part of Kalahasti Estate and as having been already vested in the Government with effect from the date when the Kalahasti Estate was taken over i.e., 03.09.1952 (the provisions of the Act XV of 1959 being retrospective). It is true that the Sub-Collector did not specifically state that KCK is not an Estate, but by deciding that it is an Inam governed by Act XXXVII of 1956, he has to be held to have decided by implication that KCK is not an Estate governed by Act XXVI of 1948. Therefore, Ex.A.2 decision of the Sub- Collector dt.16.8.1974 has to be held to be without jurisdiction, null and void and consequently, its further confirmation in W.P.No.1741 of 1975 (Ex.B.10) would not operate as res judicata and cannot bar the present suit. I am also of the opinion that the State is entitled to a declaration that Ex.A.2 and B.10 are void and without jurisdiction.
169. It is also necessary to point out that the decision of the Sub Collector, Chandragiri in I.A.No.1 of 1973 dt.16-08-1974 is a decision of a Revenue Court established under Act XXXVII of 1956. Before the amendment by Act 104 of 1976 of the Civil Procedure Code, 1908, in order to raise a plea of res judicata, it was necessary that the Court trying the former suit should have been competent to try the whole or subsequent suit itself and not a part of it or a material issue arising in it. Otherwise the rule of res judicata under Section 11 CPC would not apply. Explanation VIII to Section 11 C.P.C. was introduced by Civil Procedure Code (Amendment) Act 1976 (104 of 1976) w.e.f. 01-02-1977. It states:
11. Res judicata._ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parities under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
. ..
Explanation VII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
170. Explanation-VIII now makes it clear that if the Court in the prior suit was competent to try the particular issue in question, the finding on that issue would operate as res judicata in the subsequent suit even though the former Court was not competent to try the subsequent suit under the Code. Since this explanation was added only from 01-02-1977, the decision of the Sub Collector in Ex.A-2 would not operate as res judicata since it was decided prior to 01-02-1977, particularly when it is without jurisdiction and is also under challenge in this suit.
171. The finding of the trial Court that the order in W.P.No.1741 of 1975 is binding on all Courts is therefore erroneous. It also erroneously held that since it was not challenged in appeal, it is binding and the Collector is estopped from questioning it. Point (6):-
Whether the present suit is barred in view of Section 14 of Act 37 of 1956 ?
172. The respondents placed strong reliance on the judgment of the Supreme Court in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu . It was contended that the Supreme Court in that case considered Section 14 of the Act and had held that the decision of the Revenue Tribunal under the said Act is final and conclusive between the parties claiming right, title or interest to them and that a civil suit except on the ground of fraud, misrepresentation or collusion of the parties is not maintainable. They also pointed out that this decision was followed in Tirumala Tirupati Devasthanams v. Thallappaka Ananthacharyulu , Smt. Parvathi Sahu v. Ayyalasamayajulu Venkata Ramana and Sri Rama Swamy and Sri Prasanna Visweswaraswami Temple v. Dodlavaram Rajaiah .
173. In Vatticherukuru Village Panchayat (51 supra), there was a dispute between the said Gram Panchayat and descendants of an Inamdar as to right to certain land in an Inam village which had been granted for construction, preservation and maintenance of a tank. The Gram Panchayat claimed the right under the provisions of the Andhra Pradesh Gram Panchayat Act, 1964 and in particular Section 64, which vested communal property in it for administration for the benefit of villages and also Section 85, under which tanks used by public would vest in it. The descendants of the Inamdar made a claim for ryotwari patta under Section 7 of Act XXXVII of 1956 relying on entries in the Inam Fair Register. The Supreme Court held that all communal lands, porambokes, tanks, etc., in Inam villages would vest in the Government under Section 2(A) of Act XXXVII of 1956 free from all encumbrances; that the vesting of land in the Gram Panchayat would not confer absolute or full title upon it and was only because the tank was a public tank; that the descendants had obtained a patta under Section 3 of the said Act but the said patta was only to maintain the public tank which had stood vested under Section 85 of the Gram Panchayat Act in the Gram Panchayat; and that they were divested of their right or interest acquired therein. The Supreme Court held that as the Gram Panchayat had unlawfully taken possession in the suit filed by it, the grant of relief of possession had become redundant. It held that although the suit by the descendants would normally have been decreed since they had obtained a ryotwari patta under Section 3 of the Act XXXVII of 1956 and since they were unlawfully dispossessed therefrom, since the said patta, though in the name of individuals, was to maintain a public tank (which had stood vested under Section 85 of the Gram Panchayat Act in the Gram Panchayat), the title of the descendants also stood divested of any right or interest therein and their suit was also liable to be dismissed. While coming to this conclusion, the apex court observed :
29. Thus the glimpse of the object of the Inams Act, scheme, scope and operation thereof clearly manifest that Inams Act is a self-contained code, expressly provided rights and liabilities;
prescribed procedure; remedies of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law. The jurisdictional findings are an integral scheme to grant or refuse ryotwari patta under Section 3, read with Section 7 and not collateral findings. It was subject to appeal and revision and certiorari under Article 226. The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them. The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive. The civil suit except on grounds of fraud, misrepresentation of collusion of the parties is not maintainable.
This decision has been followed in the subsequent decisions as mentioned above.
174. But in the very same decision, the Supreme Court observed :
23. The jurisdiction of a tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the tribunal has to consider. At the inception of an enquiry by a tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have had. Except such tribunals of limited jurisdiction, when the statute not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final. The questions to be asked, therefore, are whether the tribunal has jurisdiction under Inam Act to decide for itself finally; whether the institution or the inamdar or the tenant is entitled to ryotwari patta under Sections 3, 4 and 7 and whether the tribunal is of a limited jurisdiction and its decision on the issue of patta is a collateral fact.
175. In Desika Charyulu v. State of Andhra Pradesh , the Supreme Court held :
23. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. Lord Esher formulated the point thus in Queen v. Commissioner for Special purposes of the Income Tax:
When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant; factors. In the present case, this is determined by the terms of Section 9(1) which prescribes and delimits the functions of the Settlement Officer and thus in effect, of the appellate forum. This sub-section enjoins on or empowers of the Settlement Officer to determine whether any inam village is an inam estate or not and the object of the Act is to abolish only inam estates. This determination involves two distinct matters in view of the circumstance that every inam village is not necessarily an inam estate viz. (1) whether a particular property is or is not an inam village and (2) whether such a village is an inam estate within the definition in Section 2(7). The first of these questions whether the grant is of an inam village is referred to in Section 9(1) itself as some extrinsic fact which must pre-exist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this appeal, makes no provision for this being the subject of enquiry by the Settlement Officer.
24. Where therefore persons appearing in opposition to the proceedings initiated before the Settlement Officer under Section 9 question the character of the property as not falling within the description of an inam village, he has of necessity to decide the issue, for until he holds that this condition is satisfied, he cannot enter on the further enquiry which is the one which by Section 9(1) of the Act directed to conduct.
On the terms of Section 9(1) the property in question being an inam village is assumed as a fact on the existence of which the competency of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no words in the statute empowering him to decide finally the former, he cannot confer jurisdiction on himself by a wrong decision on this preliminary condition to his jurisdiction. Any determination by him of this question, therefore, is (subject to the result of an appeal to the Tribunal) binding on the parties only for the purposes of the proceedings under the Act, but no further. The correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision. The determination by him of the second question whether the inam village is an inam estate is, however, within his exclusive jurisdiction and in regard to it the jurisdiction of the civil courts is clearly barred. In this connection we might refer to the decision of the Madras High Court in Venkatanarasayya v. State of Madras where Rajamannar, C.J. said:
If the grant is less than a village then obviously Madras Act 26 of 1948 can have no application whatever. Section 9 of that Act provides for the determination after inquiry of the question whether any inam village is an inam estate or not. Presumably, when the contention is that the grant does not comprise a village, the proceedings under Section 9 would not be strictly open to the aggrieved party.... The aggrieved party will have a right of suit as he would have a good cause of action when proceedings are taken under colour of an Act which does not apply to the facts of the case.
This correctly expresses the distinction between the two related questions and the effect of the decision on the preliminary condition.
176. From the above two passages, it is clear that the authorities under Act XXXVII of 1956 would have the jurisdiction to decide only the issues in respect of which jurisdiction has been conferred on them under the said Act. Thus a condition precedent for exercise of jurisdiction by the Tehsildar under the said Act is that the land in respect of which claim was made must be an Inam land. By wrongly deciding the said question (holding that it was an inam land even though it was notified as part of Kalahasti estate under Ex.A1, which indeed was to be decided under Act XXVI of 1948 by competent authorities under that Act), the Tehsildar ( being the authority under the Act XXXVII of 1956) or the Sub-Collector or the Appellate Authority under the Act XXXVII of 1956 cannot confer jurisdiction on themselves and impliedly decide that it was a non-estate inam governed by Act XXXVII of 1956. Therefore, his adjudication of the jurisdictional fact, i.e., that the land in question is a non estate inam, is not final and such adjudication is open to challenge in a later proceeding on the ground that he had no jurisdiction to decide that question.
177. In Vatticherukuru Village Panchayat (51 supra) discussed above, there was no dispute that the land was Inam land and the question only was whether the Gram Panchayat or the descendants of Inamdar, had title to it. It was not a case where there was a dispute as to the nature of the land being Inam land or Estate, as in the present case. Therefore, the said case cannot to apply to situations where the preliminary question of jurisdiction, i.e., whether it was estate or a non-estate Inam, was wrongly decided by an authority under Act XXXVII of 1956. It cannot be said that even in such situation the jurisdiction of a Civil Court is barred. In fact, para 23 of the judgment in Vatticherukuru Village Panchayat (51 supra) extracted above clearly points to the exception carved out by the Supreme Court to the main principle laid down by it i.e., that a Tribunal cannot wrongly decide a collateral fact on the basis of which its jurisdiction depends and give itself a jurisdiction which it would not otherwise have.
178. In D. Rami Reddy v. The Executive Officer, Tirumala Tirupati Devasthanams , a Division Bench of this Court consisting of Goda Raghuram and N.Ravishankar JJ has interpreted the decision in Vatticherukuru Village Panchayat (51 supra) in a like manner. In that case, a suit was filed for declaration of title to certain property and for recovery of the same from the Tirumala Tirupathi Devasthanam. The suit was dismissed and an appeal was filed in the High Court challenging it. The plaintiffs case was that his father purchased the subject land from its lawful owner and also obtained possession of the same on the very same day and that subsequently his father obtained a ryotwari patta under Act XXXVII of 1956 and continued in possession and enjoyment of it; that the Tehsildar had decided that the land was an Inam land covered by Act XXXVII of 1956, and therefore, he is entitled to the said property. The Devasthanam on the other hand contended that the entire extent of land had been acquired under the Land Acquisition Act, 1894 in 1937 itself much prior to the decision of the Tehsildar under Act XXXVII of 1956 and since the land had ceased to be Inam land by the date of commencement of the Act XXXVII of 1956, the patta issued by the Tehsildar was void and he had no jurisdiction to grant it since the Act had no application to it. They therefore contended that the Tehsildar acted totally without jurisdiction in granting the patta to the father of the plaintiff and it was a nullity. The appellant/plaintiff contended that the decision of the Tehsildar under the Act had become final and the Civil Court cannot go into its validity and the so the suit ought to be decreed. He also placed reliance on the judgment in Vatticherukuru Village Panchayat (51 supra). After referring to para.23 in the said decision, this Court observed :
23. The legal position stated in Vatticherukuru Village Panchayat's case (2 supra) was considered in Tirumala Tirupati Devasthanams's case (3 supra). However in para 3 of the judgment in the latter case it was held "thus as per the law laid down by this Court in Andhra Pradesh the civil court would have jurisdiction only in cases of misrepresentation, fraud or collusion of parties". These are the grounds on which a suit can be filed under Section 14 of the Act challenging a patta or proceedings under the Act
24. From the legal position stated in the Vatticherukuru Village Panchayat's case (2 supra), it can be concluded that despite Section 3(7) and Section 14 of the Act, if the Tahsildar acting under the Act has decided jurisdictional facts wrongly and applied the Act to a land to which it has no application, he assumes a jurisdiction which he would not otherwise have. This proposition has not been varied in Tirumala Tirupati Devasthanams's case (3 supra) and the said judgment reads that the above view regarding the effect of wrongly deciding jurisdictional facts has also received approval. The facts in the present case would show that the Tahsildar granted Ex.A.2 patta for the suit land though it ceased to be inam and became Government land in 1937 itself by reason of Ex.B.1 award. It can thus be said that Ex.A.2 patta is void.(emphasis supplied)
179. In my opinion, this decision squarely applies to the present case. It is true that Section 14 of the Act directs that a Civil Court can have jurisdiction only when the proceedings under the Act are vitiated by fraud, misrepresentation or collusion. However, when the Act XXXVII of 1956 itself has no application to the land in question, it being an estate notified under Act XXVI of 1948, the matter goes to the root of jurisdiction. In my opinion, that can indeed be an additional ground to treat an order under Act XXXVII of 1956 as void, despite Section 14 and Section 3(7) of the Act, as that amounts to exercise of jurisdiction not permitted by the Act. It would not be a mere irregular exercise of available jurisdiction.
180. In conclusion, KCK inam had vested in the Government along with the main Kalahasti Estate pursuant to Ex.A.1 notification read with Act XV of 1959 with effect from 03.09.1952 itself. Therefore, KCK having already vested in the State pursuant to the above notification, it ceased to be Inam land available under Act XXXVII of 1956 for grant of patta to the Devasthanam or to Defendant No.1. So Act XXXVII of 1956 would not apply to it. The Sub-Collector, acting as Appellate Authority under Act XXXVII of 1956, in Ex.A.2 held it to be an Inam governed by the said Act by wrongly deciding the jurisdictional fact. He applied Act XXXVII of 1956 to KCK to which it had no application and thereby he assumed a jurisdiction which he would not otherwise have. In my opinion, it is not a case of irregular exercise of available jurisdiction by the Sub-Collector but it was a case of usurpation of jurisdiction which he never possessed. The fact that it was confirmed in a writ petition does not improve the matter further. In this view of the matter, notwithstanding the bar in Section 14 of Act XXXVII of 1956, I am of the opinion that the State is entitled to maintain the suit.
Point No.7:-
181. I will now consider the effect of the order dt.31-03-1979 in proceedings No.V2/2680/77 (Ex.A-3) of the Commissioner, Survey, Settlement and Land Records (4th defendant).
The above order was passed in a suo motu revision taken up by the 4th defendant under Section 14-A of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (Act XXXVII of 1956) at the instance of the plaintiff. Section 14-A states:
14-A. Revision:-
(1) Notwithstanding anything contained in this Act, the Board of Revenue may, at any time either suo motu or on application made to it, call for and examine the records relating to any proceedings taken by the Tahsildar, the Revenue Court or the Collector under this Act for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision made or order passed therein; and if, in any case, it appears to the Board of Revenue that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly.
No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation.
182. This provision was introduced by way of amendment to the Principal Act XXXVII of 1956 by Amending Act XX of 1975 w.e.f. from 20-06-1975. In his application seeking suo motu revision under the above provision, the Collector sought for setting aside of the Ex.A2 order of the Sub- Collector dt.16.8.1974. The Collector mentioned about Ex.A-1 notification publishing the Government Memo No.1122/J/56dt.24-05-1957, Ex.B-16 Government Memorandum No.3082-67/26 dt.13-02-1968 as well as Ex.B-10 order dt.15-10-1976 in W.P.No.1741 of 1975 passed by this Court and contended that KCK was granted an inam by the Raja of Srikalahasti in the year 1786 A.D. prior to the permanent settlement in 1802 of the Srikalahasti Zamindari, without the burden of payment of jodi or rendering of any service to the rajah, that even though it was a pre settlement minor inam, since it was included in the assets of the Srikalahasti Zamindari, it is deemed to have been taken over as along with main estate on 03-09-1952.
183. In the said proceedings, the learned Government Pleader placed reliance on the definition of the term inam land under Section 2 (c) of the Act XXXVII of 1956 as also a decision of the Privy Council in Secretary of State v. Rajah of Venkatagiri (17 supra) and contended that Act XXXVII of 1956 did not apply to KCK which was part of Srikalahasti Zamindari, one of the western palayams, and it was not an inam. During the course of his arguments, the Government Pleader conceded that the judgment of this Court in W.P.No.1741 of 1975 (Ex.A4=B.10) had become final and is binding on the Government and it was not open to the Government to re-agitate the issue. The Government Pleader also conceded that the decision of the High Court in Ex.B-10 would over ride the above decision of the Privy Council.
184. Taking note of the above concession of the learned Government Pleader and also a decision reported in A. Sesha Reddy Vs. M. Narsimha Reddy and Others cited by Defendant No.1, the Commissioner held that Section 14-A was introduced only with effect from 20-06-1975; that orders passed prior to that date and which had become final, cannot be revised invoking Section 14-A; and the order Ex.A-2 passed on 16-08-1974 by the Sub Collector cannot be revised by him exercising power under Section 14-A introduced by amending Act XX of 1975 w.e.f 20-06-1975. He also held that the decision in W.P.No.1741 of 1975 would operate as res judicata, that the order Ex.A-2 of the Sub Collector had got merged in the order of the High Court, and if Commissioner were to entertain a Revision against the order of the Sub Collector, it would amount to entertaining a Revision against the order of the High Court. He therefore held that he did not have jurisdiction to take up suo motu enquiry.
185. In my opinion, the order of the Commissioner is primarily based on his view that he did not have jurisdiction to Revise the order of the Sub Collector in I.A.No.1 of 1973 passed on 16-08-1974 since the said order was passed long before Section 14-A was introduced by way of amendment to Act XXXVII of 1956 and that the Government Pleader had conceded (a) that the said order was confirmed in W.P.No.1741 of 1975 (Ex.B-10) and (b) the judgment of the High Court had become final.
186. As regards binding nature of the concession made by the learned counsel on a point of law, the law is well settled. In Uptron India Ltd v. Shammi Bhan , the Supreme Court held that a wrong concession of a Counsel on a legal question is not binding upon his client and such concession cannot constitute a binding precedent.
187. Similar view was also expressed in Vimaleshwar Nagappa v.Noor Ahmed Shariff and in Rajendra Singh Verma (dead), Through L.Rs. and Others Vs. Lieutenant Governor (NCT of Delhi) and Others .
188. In my opinion, therefore, the concession on a point of law by the learned Government Pleader before the Commissioner (that the judgment of this Court in W.P.No.1741 of 1975 (Ex.A4=B.10) had become final and is binding on the Government, it was not open to the Government to re-agitate the issue, and that the decision of the High Court in Ex.B-10 would over ride the above decision of the Privy Council), is not binding on the State.
189. Also when the Commissioner was of the opinion that he did not have jurisdiction to Revise the order of the Sub Collector, Chandragiri (Ex.A-2), his order cannot be said to be an order rejecting the case of the State on merits. In Jagmittar Sain Bhagat (38 supra), the Supreme Court held:
9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction.
190. So merely because the Commissioner refused to Revise Ex.A2 order of the Sub- Collector dt.16.8.1974, this would in no way validate it. I have already held that Ex.A2 order along with the decision in W.P.No.1741 of 1975 (Ex.B-10), have been passed without jurisdiction. Probably the State thought it fit to challenge the order of the Commissioner by way of abundant caution with a view to preclude a plea by the defendants that decision of the Commissioner is binding on the State. In my opinion, the order dt.31.3.1979 of the Commissioner of Survey, Settlement and Land records is of no effect and would not come in the way of the State to file the present suit. The point is answered accordingly in favour of the plaintiff/appellant and against the respondents/defendants.
Point No.8:-
191. The next point to be considered is to the validity of the decision of the Forest Settlement Officer, Nellore dt.17-06-1975 in Ref. No.A/54/65 (vi) marked as Ex.A-10, its confirmation by the District Judge, Chittoor in his judgment dt.19-11-1977 in A.S.No.141 of 1975 (Ex.A-11) on confirmation of the latter order in W.P.No.6292 of 1979 dt.22-11-1979.
192. These proceedings were initiated by 1st defendant and one Pamulu Krishnayya, one of the petitioners in W.P.No.1741 of 1975, against District Forest Officer, Chittoor under the provisions of A.P. Forest Act, 1969 questioning a notification in G.O.No.1967 F&A dt.27-09-1968 issued under Section 4 of the said Act and the consequential proclamation under Section 6 of the said Act published on 20-03-1969 in respect of Narayanavanam Block comprising 49, 120 acres in Puttur and Sikalahasti of Chittoor District including KCK. They contended that it should be excluded from the said forest block. By order dt.17-06-1975 (Ex.A-10), the Forest Settlement Officer, Nellore held that KCK is patta land and the extent of about 1500 acres comprised therein would stand eliminated from the proposed Narayanavanam Block. He relied on Ex.A-2 order dt.16-08-1974 of the Sub Collector, Chandragiri to come to this finding. This order was challenged by the then District Forest Officer, Chittoor East, Chittoor in an appeal under the said Act before the District Judge, Chittoor. The District Judge by order dt.19.9.1977 in A.S.No.141/1975 (Ex.A11) confirmed the order of the Forest Settlement Officer placing reliance upon Ex.B-16 and the Order Ex.B-10 dt.15-10-1976 in W.P.No.1741 of 1975.
193. Subsequent thereto there was some dispute as to the extent of land which was to be eliminated from the proposed reserve forest of Narayanavanam Block and covered by the rough sketch enclosed to the order of Forest Settlement Officer. It appears that demarcation by the Forest Department revealed only that 800 acres was covered by the rough sketch leaving a balance of 700 acres. Defendant No.1 therefore filed a petition before the Forest Settlement Officer for modification of the earlier rough sketch. The Forest Settlement Officer, Srikalahasti made a local inspection along with the Forest Range Officer, Srikalahasti on 16-09-1978 and by order dt.23-09-1978 modified the sketch and the boundaries of the area of 1500 acres including 3800 mango trees, to be eliminated. But this modification was not given effect to by the District Forest Officer. Defendant No.1 therefore filed W.P.No.6292 of 1979 against the Forest Settlement Officer and District Forest Officer, Chittoor East, Chittoor to implement the modified sketch and eliminate 1500 acres with 3500 mango trees belonging to him in KCK from the proposed Reserve Forest of Narayanavanam Block and to handover possession to him. By Ex.B12 order dt.22-11-1979, the said writ petition was allowed and a direction was given to the respondents therein to implement the orders dt.17-06-1975 and 23-09-1978 of the Forest Settlement Officer within six weeks.
194. It is pertinent to note that in all these three proceedings, the State is not a party and only the District Forest Officer, Chittoor and Forest Settlement Officer, Nellore are parties. Therefore in my opinion, decision in these three proceedings Ex.A-10, A-11 and B-12 would not bind the State and would not operate as res judicata.
195. Moreover since Exs.A-10 and A-11 are based on Ex.A-2, Ex.B-16 Memorandum dt.13.2.1968 and Ex.B-10 order in W.P.No.1741 of 1975, and since these orders have been held to be without jurisdiction, null and void, the orders passed under Ex.A-10, A-11 and Ex.B-12, being dependent orders, would also have to be held to have been passed without jurisdiction and therefore null and void. Therefore this point is answered in favour of the appellant and against the respondents.
Point (9) :
I will now consider the entitlement of the State for the relief of declaration that KCK is not an inam governed by the A.P.(Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act,1956, but an estate.
196. The learned counsel for the respondents contended that this relief of declaration was added by way of amendment pursuant to an order dt.12-04-1994 in I.A.No.113 of 1994 and that it is barred by limitation. This contention has no basis. For the first time the Sub- Collector, Chandragiri in his order Ex.A-2 dt.16-08-1974 in I.A.No.1 of 1973 had held that KCK is an inam land governed by the provisions of Act XXXVII of 1956. The suit was filed on 29-02-1980 and this amendment was sought in 1994. Under Article 112 of the Limitation Act, 1963, 30 years is the period of limitation for any suit to be filed by the State Government from the time when such period would begin to run under the Act against a like suit by a private person. Therefore, this plea raised by the State by way of amendment to the plaint in 1994 cannot be said to be barred by limitation, since the cause of action for the suit admittedly was Ex.A-2 order and subsequent orders, which were within the 30 year period.
197. It is also contended by the respondents that in view of Section 65 of Act XXVI of 1948 which bars the filing of a suit or other proceeding against the Government for any act done or purported to be done under it, the present suit is not maintainable. The present suit is a suit filed by the Government and is not one filed against the Government. So the said provision would not apply. Moreover there is no adjudication by any authority under this Act that KCK is not an estate after Ex.A-2 notification dt.24-05-1957 treating it as a pre- settlement minor inam included in the assets of the Kalahasti Zamindari, and treating it as having already been taken over by the Government along with the main Kalahasti zamindari estate, on 03-09-1952. Whether the nature of land is estate or not is a jurisdictional fact and if its nature is disputed, although the authority under the statute can decide it, the Civil Court is not totally prohibited from going into that question and holding that in view of Ex.A-2, KCK is an estate governed by Act XXVI of 1948 and not an inam governed by Act XXXVII of 1956.
198. In the paragraphs commencing from para 104 onwards, I have elaborately discussed the provisions of Act XXVI of 1948, Act XXXVII of 1956 and the legal effect of Ex.A1 Memorandum dt.24.5.1957 in the light of Act XV of 1959 amending Act XXVI of 1948. Relying on the decisions of the Privy Council, Madras and Andhra Pradesh High Courts in Secretary of State v. Rajah of Venkatagiri (17 supra), Krishna yachendra v. Ramanujulu (7 supra) and Madras (now Andhra) v. Sri Kalahasteswaraswamy temple and anr (18 supra), I have held that as regards Kalahasti estate , income of all minor inams were also included in the assets of the main Zamindari at the time of permanent settlement and therefore, after Act XV of 1959 was passed, by virtue of Ex.A1 Memorandum dt.24.5.1957, KCK, a pre settlement minor inam, came to be treated as part of such Zamindari estate and included in and taken over by the Government along with main estate with effect from the notified date applicable to that estate. Therefore, KCK is not an inam governed by the A.P.(Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act,1956 but an estate and the appellant/plaintiff is entitled to grant of relief of declaration to that effect. The point is answered accordingly.
Point 10 : I will now consider the point Whether the plaintiff is entitled to grant of such relief of declaration even if it had not sought the relief of recovery of possession?
This concerns Section 34 of the Specific Relief Act, 1963.
199. It is the contention of the respondents that the State ought to have also claimed the relief of recovery of possession as a consequential relief in the present suit as mandated by the proviso to Section 34 of the Specific Relief Act, 1963 and since it has not sought such a relief, the declaratory relief sought by it also cannot be granted.
200. Section 34 of the Specific Relief Act, 1963 states :
34. Discretion of court as to declaration of status or right.-
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
201. The learned counsel for 1st respondent relied upon the decision of this Court in V.Hanya Naik and others Vs. M.Krishna Reddy and others . In that case a suit was filed merely seeking a declaration that the plaintiffs were the sole surviving legal heirs of late Sri V.Rashya Nayak without impleading anybody as defendant and showing all concerned as defendant. The trial Court decreed the suit. Thereafter an application was filed by 2 parties to implead them as defendants in the suit, and also another application was filed by them under Order IX Rule 13 C.P.C. to set aside the ex parte decree in the suit along with an application under Section 5 of the Limitation Act, 1963 to condone the delay of 61 days in filing the said application. The trial Court allowed these applications and the same was challenged in Revision Petitions in this Court. This Court dismissed the Revisions observing that the plaintiff merely sought declaratory relief without mentioning any property in the schedule to the plaint nor impleading any person as defendant in the suit; it was not a petition under the Indian Succession Act, 1925; that the trial Court could not have numbered the suit in the light of Section 34; that the plaintiff relied on the said decree in various proceedings under the A.P. Rights in Land and Pattedar Passbooks Act, 1971 and that was why the respondents were aggrieved by the exparte decree; that the trial Court realised its mistake and ordered the applications filed by the respondents correctly; and the said orders did not warrant any interference by this Court in Revision.
202. The above proposition of law cannot be doubted but in my opinion it has no application to the facts of the case.
203. Proviso to Section 34, on the facts of the case, does not come in the way of the plaintiff/appellant. There is no dispute that the present suit was filed on 29-02-1980. The 5th defendant asserted in its written statement that it was put in possession by the 1st defendant on the date Ex.B-17 agreement of sale dt.16-05-1980 was executed in its favour and also stated that the 1st defendant had taken possession from the Government of Andhra Pradesh through the District Forest Officer, Chittoor East Division, Chittoor who allegedly delivered possession under Ex.B-15 dt.14-04-1980 [pursuant to the order dt.22-11-1979 in W.P.No.6292 of 1979 (Ex.B-12)]. Thus, the alleged delivery of possession to the 1st defendant was on 14-04-1980, subsequent to the filing of the suit on 29.2.1980. So on the date of filing of the suit admittedly possession of the property was with the District Forest Officer, Chittoor East Division, Chittoor i.e. the Forest Department of the State of Andhra Pradesh, the plaintiff herein. Therefore, it cannot be said that on the date the suit was filed, since relief of recovery of possession was not sought, the bar contained in Section 34 of the Specific Relief Act, 1963 would operate and render the suit as not maintainable. On 29.2.1980, there was no need for the State to seek delivery of possession as its Forest department was in possession.
204. Such delivery of possession pending suit would therefore be only subject to the result in the suit/appeal. Even alienations pending suit are subject to result of the suit under section 52 of the Transfer of Property Act, 1882. Therefore, if the plaintiff/appellant is held entitled to the reliefs of declaration claimed by it, then in exercise of power of this Court under Order 41 Rule 33 CPC, this Court is entitled to grant relief of delivery of possession also to the appellant, even if it was not prayed for in the suit since on the date of the suit it is in possession of the property and the defendants got into possession after the present suit was filed.
205. In fact the said delivery of possession to the 1st defendant was pursuant to the order dt.22-11-1979 in W.P.No.6292 of 1979 (Ex.B-
12) passed by this Court which has been held by me (under point No.8 infra) to have been passed without jurisdiction and therefore null and void. Therefore the said delivery of possession is null and void and has to be ignored.
206. The 1st defendant in his evidence as D.W.1 stated as under:
My sale does not mention about the mango trees. No prior records for the existing of mango trees is filed by me. There were unregistered Muchilikas for the leases given by me regarding portions of the suit lands in favour of various persons. This fact was not mentioned by me in my written statement and my counter. I did not file those Muchilikas as I felt that they are not necessary. Not true that the entire suit land of Kothacheruvu kandiga is a forest land and not a cent of it is under cultivation. Prior to my purchase 300 acres of the suit lands was under cultivation and after my purchase 1500 acres was brought under cultivation. As there was no assessment no kist was paid and no cultivation accounts was maintained. The survey Nos. for the cultivated lands with the extent thereof are shown in the Gazettee Notification Ex.B-7. Cultivation was not registered in the village records by the Village Officers. My steps for entering cultivation accounts into the Revenue Records was stayed by the Collector. ..
207. This evidence of D.W.1 does not prove his possession of KCK or cultivation of any portion thereof at any point of time. His evidence does not corroborate the plea of the 5th defendant.
208. In any event, once KCK vested in the State by operation of law i.e. Section 3(b) of Act XXVI of 1948 after Ex.A-1 memorandum dt.24-05-1957 was validated by Act XV of 1959, KCK stood transferred to the Government and vests in it free from all encumbrances [Section 3(b)]. Even assuming that KCK was forest land, it would still vest in the State under Section 3(b) of the Act. Consequently, all rights and interests created in or over the Estate before the notified date by the principal or any other land holder, would automatically cease and determine as against the Government (Section 3 (c) of Act XXVI of 1948) and it is entitled, after removing any obstruction that may be offered, forthwith take possession of the Estate (Section 3(d) of Act XXVI of 1948). Thereupon, the principal or any other land holder and any other person whose rights stand transferred under clause (b) or cease and determine under clause (c) of Section 3, would be entitled only to compensation from the Government as provided in the Act. The ryots in the Estate would be entitled for a ryotwari patta under Section 11 of the Act and the land holders in a Zamindari Estate or Inam Estate or under-tenure Estate is entitled to a ryotwari patta under Section 12 to 14 of the said Act, subject to the conditions therein. Admittedly, none of the defendants had filed any application before the Settlement Officer, who is the competent authority, under any of the above provisions to determine their entitlement to a ryotwari patta. Therefore, the defendants cannot be said to be in possession of KCK after it was taken over by the Government under Ex.A-1 Memorandum dt.24-05-1957.
209. In view of the statutory vesting under Section 3(b) of the Act XXVI of 1948, the title to KCK has vested in the State and it is deemed to be in possession thereof on the principle possession follows title. In State of A.P. v. Star Bone Mill and Fertiliser Company , the apex court held:
21. The maxim possession follows title is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party.
210. In this view of the matter, I am of the view that it was unnecessary for the State to seek the further relief of recovery of possession of the land in addition to the relief of declaration sought by it.
THE CONCLUSION :
211. In view of the above, I hold that the judgement and decree of the trial court cannot be sustained. I declare that KCK is a pre settlement inam included in the assets of Kalahasti Zamindari at the time of permanent settlement; in view of Ex.A1 Memorandum dt.24.5.1957 r/w Act XV of 1959, it vested in the State from 3.9.1952, the date when the main estate of Kalahasti was taken over under Act XXVI of 1948 and it is not an Inam under Act XXXVII of 1956. Therefore,
(i) Ex.A.2, the order dt. 16.8.1974 of the Sub-Collector, Chandragiri (2nd defendant) in I.A.No.1 of 1973;
(ii) Ex.A.3, the order dt.31.03.1979 in Case No.V2/2680/77 of the Commissioner for Survey, Settlement and Land Records, Hyderabad (3rd defendant);
(iii) Ex.A.4, Order dt.15.10.1976 in WP.No.1741 of 1975 of this Court;
(iv) Ex.A.10, Order dt.17.06.1975 in Ref.No.a-54/65(vi) of the Forest Settlement Officer, Nellore;
(v) Ex.A.11, the judgment dt.19.11.1977 in AS.No.141 of 1975 of the District Chittoor;
(vi) Ex.A.12, the Order dt.22.11.1979 in WP.No.6292 of 1979 of this Court, are declared as ab initio void and of no effect.
I further direct that the respondents deliver possession to the appellant/plaintiff.
212. The appeal is accordingly allowed but in the circumstances without costs.
213. Miscellaneous applications, pending if any, in this appeal shall stand closed.
__________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 17-04-2014