Chigurupati Venkata Subbayya & Ors
Vs. Paladuga Anjayya & Ors  INSC 25 (24 January 1972)
REDDY, P. JAGANMOHAN PALEKAR, D.G.
CITATION: 1972 AIR 1421 1972 SCR (3) 172 1972
SCC (1) 521
Madras Estates Land Act (1 of 1908), ss. 20A
and 189, and Item 6, Part B of Schedule-Collector's order under s. 20AWhen
affects the communal use of lands-Jurisdiction of Civil Courts, when barred.
Madras Estates (Abolition and Conversion into
Ryotwari) Act (26 of 1948), ss. 11 and 56-Power of Settlement Officer to grant
patta with respect to communal lands-Decision of Settlement Officer, when
A suit by the respondents for a declaration
that certain lands were communal lands was decreed by the High Court in appeal.
In appeal to this Court, it was contended that :
(1) the Collector held under s. 20A of the
Madras Estates Land Act, 1908, that the lands were no longer required for the
purpose for which they were originally intended; (2) the first appellant had
been in possession of the lands after obtaining a grant from the Zamindar; (3)
after the abolition of Estate under the Estates Abolition Act, 1948, the lands
were granted to him by the Estates Manager; (4) during the pendency of the
suit, the Assistant Settlement Officer granted a patta to him under s. 1 1 of
the Abolition Act;
(5) the decision of the Assistant Settlement
Officer was final under s. 56 of the Abolition Act(6) the Civil Court had no
jurisdiction under s. 189(1) of the Estates Land Act;
and (7) that under s. 3 of the Abolition Act,
the communal rights were abolished.
Dismissing the appeal,
HELD : (1) Under s. 20A of the Estates Land
Act. before the Collector can order diversion of the use of any communal land,
he should first declare that the land is no longer required for any of the
purposes referred to in s. 3 (16) (a) and (b), then direct by order in writing
that the land be used for any other specified communal purpose, and if it is
not so required, then it may be converted into ryotwari land or landholder's ryoti
land according as the reversionary right vested in the Government or the
landholder. In the present case, the Collector, apart from making the order
that the lands were no longer 'required for the original purpose, did not make
any other order in writing. [178 G-H; 179 A-B] (2) In view of ss. 20 and 20A of
the Estates Land Act, the Zamindar did not have any right to deal with the
communal lands. [176 D-E] (3) The order of the Estates Manager is ineffective
because it proceeded on the erroneous assumption that the lands had already
been converted into ryotwari lands. [179 C-D] (4) The lands in dispute are not
lanka lands, nor were they declared to be ryoti lands either under the
Abolition Act or the Estates Land Act. The Assistant Settlement Officer has no
power to convert communal land into ryoti land.
Therefore, he has no competence under s. 11
of the Abolition Act to grant, the ryotwari patta. [18OD-E] Valathar Moopananri
v. Board of Revenue 1966 (I) M. L. J.
173 (5) Under s. 56 of the Abolition Act, the
decision of the Settlement Officer is made final only with respect to matters
referred to in s. 56(1) but the question whether the lands in dispute continued
to be communal lands does not fall within its scope. [181 B-C] (6) Under s.
189(1) of the Estates Land Act the jurisdiction of the civil courts is taken
away only in respect of suits or applications of the nature specified in Parts
A and B of the Schedule to the Act. Item 5 of Part B of the Schedule refers to
a decision of the Collector under s. 20A(1), but, in the present case, there is
no such order in writing. [181 F-G] (7) Under s. 3 of the Abolition Act, the
lands vest in the Government, but the rights of the community over the lands
were not taken away. Under the Act, only the rights created by the principal or
other land holder were abrogated, but the rights of the community over the
lands were not such rights. [182D-E]
CIVIL APPELLATE JURISDICTION: C.A. 556 of
Appeal by Special leave from the judgment and
decree dated August 29, 1966 of the Andhra Pradesh High Court in Second Appeal
No. 644 of 1962.
R. Vasudev Pillai and P. Kesava Pillai, for
K. R. Chaudhuri and K. Rajendra Chowdhary,
for respondents Nos. 1 to 4.
The Judgment of the Court was delivered by
Hegde, J. This is an appeal by special leave. Defendants 2 to 7 in the suit are
the appellants in this appeal. The plaintiffs who are respondents 1 to 4 herein
sued for a declaration that Survey Nos. 12 to 18 comprising an extent of 10
acres 54 cents in South Vallur village of Vijayawada Taluk are communal lands,
the villagers therein having rights of irrigation and drainage. In that suit
they challenged the assignment of suit lands in favour of the 2nd defendant
(1st appellant) by the Estates Manager by his order of December, 21, 1952. They
also sought a permanent injunction restraining the defendants from interfering
with the exercise of their rights in those lands. Further they prayed for a
mandatory injunction against defendants 2 to 7 directing them to restore
"Agakodu" at their own cost to its original condition. The plaintiffs
brought the suit in a representative capacity after obtaining the permission of
The 2nd defendant resisted the suit on
various grounds. He pleaded that he had been in possession of Survey Nos. 12 to
15 ever since 1946, after obtaining a grant from the Zamindar of the ,South
Vallur under Patta Ex. B-8 dated January 15, 1946. According to him after the
abolition of the Estates under the Estates Abolition Act, 1948 (in short the
Estates Abolition Act), Survey Nos. 16 to 18 were held to be unnecessary for
the original purpose 174 by the Collector. Thereafter those Survey Nos. were
granted to him by the Estates Manager under Exh.B-16. He further pleaded that
during the pendency of the suit, a Patta for the suit lands was granted to him
under S. 1 1 of the Estates Abolition Act by the Assistant Settlement Officer
under Exh. B-30 dated December 10, 1955.
The trial court dismissed the plaintiffs'
suit upholding the contentions of the 2nd defendant. It came to the conclusion
that the plaintiffs had failed to establish the communal character of the lands
pleaded by them and further even if those lands were communal lands at one
time, they had ceased to be such in view of the various orders passed by the
The first appellate court reversed the
findings of the trial court and decreed the plaintiffs' suit as prayed for. It
came to the conclusion that the lands in question were communal lands and the
villagers had rights of irrigation and drainage through those lands. It further
came to the conclusion that the various orders referred to by the 2nd defendant
in his written statement were either invalid or ineffective. The High Court has
affirmed the decision of the 1st appellate court.
Mr. R. V. Pillai, the learned Counsel for the
appellants formulated three contentions before us viz. (1) that the conclusion
reached by the 1st appellate court and affirmed by the High Court that the
lands in question are communal lands has no basis, in evidence; (2) that the
Civil court had no jurisdiction to entertain the suit and (3) in any event the
communal rights in the suit lands were extinguished under s. 3 of the Estates
We shall now proceed to examine these
contentions. But before doing so, it is necessary to point out that Mr.
Pillai attempted to reopen questions of fact
which appear to have been conceded before the High Court. We have not permitted
him to do so. From the judgment of the High Court, it is clear that the
arguments in that court proceeded on the basis that the suit lands were once
communal lands; Survey Nos. 12 to 15 even now continue to be communal lands but
Survey Nos. 16 to 18 ceased to be as such because of the order passed by the
Collector, Krishna on October 29, 1946 under s. 20-A(1) of the Madras Estates
Land Act as well as that passed by the Estates Officer and Assistant Settlement
Officer subsequently, to which we shall refer presently. In the course of the
judgment the learned judge of the High Court observed :
"It is not in dispute that the lands S.
12 to 18 and measuring 10 acres and 54 cents,
situate in South Vallur village in Vijayawada taluk are poramboke lands.
17 5 That they were used for the purpose of
irrigation and drainage is also not in dispute. It is common ground that under
A-1, the Collector, Krishna passed an order
under Section 20-A (I) (a) of the Madras Estates Land Act as amended by Madras
Act VIII of 1934 to the effect that lands, S. Nos. 16, 17 and 18 were no longer
required for the purpose for which they were originally intended. Under that
order, the Collector asked the Zamindar to say whether he had got any
reversionary rights in the, lands. What happened subsequently is not clear from
the record. It is however common ground that S.
Nos. 12 to 15 (both inclusive) continued to
be communal lands and no order under section 20-A (2) was at any time passed by
Collector converting these communal lands into, ryotwari lands or assigned them
to anyone till the estate was abolished. It will thus be clear that there was
merely a declaration that S.
Nos. 16, 17 and 18 were no longer required
for the purpose for which they were originally intended. No further order
converting those lands to ryotwari lands was passed and that S.
Nos. 12 to 15 continued to be communal lands
till the estate was abolished." In view of the stand taken by the
appellants before the High Court, it is not permissible for them to contend
that Survey Nos. 12 to 18 were at no time communal lands nor is it open to them
to contend that Survey Nos. 12 to 15 do not still continue to be communal
lands. The controversy as regards the nature, of the lands, therefore, must be
confined to Survey Nos. 16, 17 and 18. In this view, the first contention of
Mr. Pillai fails so far as Survey Nos. 12 to 15 are concerned.
So far as Survey Nos. 16 to 18 are concerned,
it was said that these lands had ceased to be communal lands as a result of the
various orders passed by the authorities. Let us examine whether this
contention is correct ? Before doing so it is necessary to refer to some of the
provision,-, in the Estates Land Act as well as the Estates Abolition Act. No
material was placed before the court to show that the South Vallur Zamindari
Estate included Survey Nos. 12 to 18.
Section 3 of the Estates Land Act defines an
"Estate" as meaning :
(a) "any permanently-settled estate or
temporarily settled zamindari;
(b) any portion of such permanently-settled
estate or temporarily-settled zamindari which is separately registered in the
office of the Collector;
1 7 6 (c) any unsettled palaiyam or jagir;
(d) any inam village of which the grant has
been made, confirmed or recognized by the 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.
Explanation (1) Where a grant of an inam is
expressed to be of a named village, the area which forms the subject-matter of
the grant shall be deemed to be an estate notwithstanding that it did not include
certain lands in the village of that inam which have already been granted on
service or other tenure or beep reserved for communal purposes." This
definition does not help the appellants. The appellants have failed to
establish that the Zamindar could have conveyed ally right in the suit lands to
the appellants. In view of S. 20 and 20-A of the Estates Land Act, to which we
shall refer a little later, no Zamindar appears to have had any right to deal
with communal lands.
Hence the alleged grant by the Zamindar, does
not appear to confer on the first appellant any title.
This takes us to the question whether the
order made by the Collector on October 18, 1946 (Exh. A-1) can be considered as
having conferred any title on the Zamindar in respect of Survey Nos. 16, 17 and
18. That order reads :
"Re. A3-13 M.P. 46 Exhibit A. 1
Proceedings of the Collector, Krishna at Chilakatapudi.
Sub(:E.L. Act-Bezwada Taluk, South Vallur, S.
Nos. 17, 18, 16 Enquiry under Section 20-A.
Order under Section 20-A (I) (a) passed.
Read:This office D. Dis. 5876-45 D/29-3-45
and R.D.0's Dis. 9609,/46 dated 18-10-46.
ORDER Under Section 20A(1) (a) of the Madras
Act as amended by Madras Act VIII of 1934,
the lands mentioned in the schedule below are declared to be no longer required
for the purpose for which they were originally intended.
177 SCHEDULE Taluk Village S. No. Extent
Bezwada South Vellur 16 0-85 Agakodu P.W.D. 17
1-72 Drainage channel 18 1-19 Poramboke Sd/29/10 Collector (2) The Zamindar is
requested to state whether he has any oral or documentary evidence to prove
that the reversionary right in the lands vest in him and to adduce it if any,
before the Collector within sixty days from the date of this order.
Sd/2-10-53, Try. Deputy Collector,
For determining the effect of that order, it
is necessary to refer to some of the provisions of the Estates Land Act.
Section 3 (2) of that Act defines
"ryot" as meaning:
"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" "Ryoti land" is defined
in s. 3 (16) which says " "Ryoti land" means cultivable land in
an estate other than private land but does not include(a) (b) throshing-floor,
cattle-stands, village sites, and other lands situated in any estate which are
set apart for the common use of the villagers.
(c) Section 20-A of the Estates Land Act says
"(1) Subject to such rules as the State Government may prescribe in this
behalf, the District Collector may on the application of the landholder, a ryot
or any other person interested(a) declare that any land or any portion of any
land which is set apart for any of the purposes referred to in sub-clauses (a)
and (b) of clause 16 of 17 8 section 3 is no longer required for its original
purpose; and (b) by order in writing direct(i) that any such land or portion in
respect of which such declaration is made be used for any other specified
communal purpose; or (ii) if such land or portion is not required for any
communal purpose, that it be converted into ryotwari land or landholder's ryoti
land according as the reversionary rights in such land vest under the terms,
express or implied of the sanad, title-deed or other grant (in the Government)
or in the landholder Provided that before making any such declaration and
order, the District Collector shall have due regard to any other customary
rights of the landholder or the ryots in the user of such land or portion and
shall satisfy himself that the exercise of such rights would otherwise be
provided for adequately if the declaration and order are put into effect :
Provided further that in the case of any land
of the description referred to in sub-clause (a) of clause (16) of section 3
the reversionary rights in which vest in the landholder under the terms,
express or implied, of the sanad, title-deed or other grant, any order under
sub clause (i) of clause (b) shall be made only with the consent of the
(2) Without the written order of the District
Collector under clause (b) of subsection (1), no land which is set apart for
any of the purposes referred to in sub clauses (a) and (b) of clause (16) of
section 3 shall be assigned or used for any other purpose.
Nothing contained in this sub-section shall
affect or take away or be deemed to affect or take way the customary rights of
the landholder or the ryots in the user of any such land." Before the
Collector can order the diversion of the use of any communal land, he should
first declare that the land or any portion of that land is no more required for
any of the purposes referred to in sub-clauses (a) and (b) of clause ( 1 6) of
s. 3 and he should further make an order in writing directing that the same be
used for any other specified communal purpose or if the same is not required
for any communal purpose, that it be converted into ryotwari land or
landholder's ryoti land. It is clear from sub-s.
179 (2)of s. 20-A that without a written
order of the District Collector under cl. (b) of sub-s. (1), go land which was
set apart for any of the purposes referred to in sub-cls. (a) and (b) of cl.
(16) of s. 3 can be assigned or used for any other purpose. The order of the
Collector on which the first appellant has relied is an incomplete order. Apart
from making a declaration that Survey Nos. 16 to 18 are no more required for
purposes for which they were originally intended, the Collector did not appear
to have made any order under cl. (b) of s. 20-A. Hence despite the order of the
Collector, Survey Nos. 16 to 18 continue to be communal lands.
Reliance was next placed by the appellants on
the order of the Estates Manager dated December 21, 1952 (Ex. B-2) for claiming
title to the suit properties. In this order the Estates Manager preceded on the
basis that the Collector's order to which we have already made reference had
already converted Survey Nos. 16 to 18 into ryotwari lands. This is an
erroneous assumption. That assumption cannot confer any right on the 1st
appellant. The Estates Manager is not shown to have had any power under any law
to convert the communal lands into ryoti lands. Hence his order cannot be
considered as having validly converted the suit lands into ryoti lands.
Lastly appellants sought support from the
order of the Assistant Settlement Officer made on December 10, 1955 (Ex.
B-30). This order was made during the
pendency of the suit and without notice to the plaintiffs-respondents. it is
purported to have been made under s. 11 (a) of the Estates Abolition Act. Under
that order the Assistant Settlement Officer granted to the 1st 'appellant
ryotwari patta in respect of Survey Nos. 16 to 18. Section 11 of the Estates
Abolition Act, does not authorise the Assistant Settlement Officer to convert
the communal land into a ryoti land.
That section reads :
" Every ryot in an estate shall, with
effect on and from the notified date, be entitled to a ryotwari patta in
respect of (a) all ryoti lands which, immediately before the notified date,
were properly included or ought to have been properly included in the holding
and which are not either lanka lands or lands in respect of which a land-holder
or some other person is entitled to a ryotwari patta under any other provision
of this Act; and (b) all lanka lands in his occupation immediately before the
notified date, such lands having been 1 80 in his occupation or in that of his
predecessors in-title continuously from the 1st day of July 1939 :
Provided that no person who has been admitted
into possession of any land by a landholder on or after the 1st day of July,
1945 shall, except where the Government after an examination of all the
circumstances otherwise direct, be entitled to a ryotwari patta in respect of
Explanation :-No lease of any lanka land and
no person to whom a right to collect the rent of any land has been leased
before the notified date, including an ijardar or a farmer of rent, shall be
entitled to a ryotwari patta in respect of such land under this section."
The lands with which we are concerned are not lanka lands nor were they
declared to be ryoti lands either under the Abolition Act or under the Estates
Land Act. That being so, the Assistant Settlement Officer had no competence to
grant ryotwari patta in respect of those lands-see the decision of the Madras
High Court in Valathar Mooppannar and ors. v. The Board of Revenue, Madras(1).
That officer has purported to grant the patta in question even without notice
to the interested parties and that during ,the pendency of the suit.
For the reasons mentioned above, we are
unable to accept the contention of the appellants that Survey Nos. 16 to 18
have ceased to be communal lands or that the appellants had obtained any lawful
title to them.
It was urged that the order of the Assistant
Settlement Officer whether the same was in accordance with law or not must be
deemed to be final in view of S. 56 of the Abolition Act. This contention is
again untenable. Section 56 says :
"(1) Where after an estate is notified,
a dispute arises as to (a) whether any rent due from a ryot for any fasli year
is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot
in respect of any holding is, the dispute shall be decided by the Settlement
(2) Any person deeming himself aggrieved by
any decision of the Settlement Officer under subsection (1) may, within two
months from the date of the decision or (1) (1966) I.M.L.J. 354.
181 such further time as the Tribunal may in
its discretion allow, appeal to the Tribunal and its decision shall be final
and not be liable to be questioned in any Court of law." The decision of
the Settlement Officer which is made final under this section must be a
decision in respect of one of the matters referred to in sub-s. (1) of s. 56.
The controversy with which we, are concerned in this case viz.
whether the suit lands continue to be
communal lands does not fall within the scope of that section. Hence we are
unable to accept the contention of the appellant that the order made by the
Settlement Officer has become final or conclusive. It is a wholly invalid
order. In this view, it is not necessary to consider whether an order made
11 without notice to the interested persons
can be considered as a valid order.
The contention that the civil courts have no
jurisdiction to go into the controversies arising for decision in this case in
view of s. 189(1) of the Estates Land Act is again without merit. That section
"A District Collector or Collector
hearing suits or applications of the nature specified in Parts A and B of the
Schedule and the Board of Revenue or the District Collector exercising
appellate or revisional jurisdiction there from shall hear and determine such
suits or applications or exercise such jurisdiction as a Revenue Court.
No Civil court in the exercise of its original
jurisdiction shall take cognizance of any dispute or matter in respect of which
such suit or application might be brought or made." The jurisdiction of
the civil courts is taken away only in respect of suits or applications of the
nature specified in parts (A) and (B) of the Schedule to the Act. No reliance
was placed by the appellants on any of the matters mentioned in part (A) of the
Schedule. Even as regards matters mentioned in part (B) reliance was only
placed on item 5 of that Schedule. Part 13 refers to applications to be
disposed of by a District Collector or Collector. Item 5 refers to a decision
of the Collector under s. 20-A(1). We have already come to the conclusion that
the Collector had made no order under that section. Hence s. 189 of the Estates
Land Act is not attracted to the present case. The dispute with which we are
concerned is a civil dispute.
Therefore the courts below had jurisdiction
to decide the same under s. 9 of the Civil Procedure. Code.
The only other contention that remains to be
considered is that the communal rights in the suit lands stood abolished under
s. 3 of 182 the Estates Abolition Act. This contention does not appear to have
been taken before the High Court. Therefore we see no justification to go into
that contention. That apart, there appears to be no basis for that contention.
Section 3(a) of the Estates Abolition Act, repeals several acts including the
Madras Estates Land Act, 1908. In view of cl.
(b) of that section all Estates including the
communal lands, porambokes and other ryoti lands, waste lands, pasture lands,
lanka lands, forests, mines and minerals, quarries, rivers and streams, tanks
and irrigation works;
fisheries and ferries stood transferred to
the Government and vested in them free from all encumbrances. It further
provides that the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess
Act, 1865 and all other enactments applicable to ryotwari areas shall apply to
Clause 3 of that section prescribes that
"all rights and interests created in or over the estate before the
notified date by the principal or any other landholder shall as against the
Government cease and determine." It is true that the suit lands in view of
s. 3 of the Estates Abolition Act did vest in the Government. That by itself
does not mean that the rights of the community over it were taken away. Our
attention has not been invited to any provision of law under which the rights
of the community over those lands can be said to have been taken away. What has
been abrogated is the rights and interests created in or over the estate before
the notified date by the principal or other landholder. The rights of the
community over the suit lands were not created by the principal or any other
landholder. Hence those rights cannot be said to have been abrogated by cl. (c)
of s. 3 of the Estates Abolition Act.
In the result this appeal fails and the same
is dismissed with costs.
V.P.S. Appeal dismissed.