YARAKAREDDI MALLEREDDI Vs. SAYED AMANULLA HUSSAIN

JUDGEMENT

(1.) Appeal NO. 266 of 1962 preferred by the defendant is directed against the judgment of the Principal Subordinate Judge, Vijayawada, in O.S. No. 91 of 1953 decreeing the suit brought by the plaintiff, the Kazi of Kondapalli Circle (since deceased) (and his legal representative added as the second plaintiff) for recovery of the plaint schedule lands with profits, past and future, and ejectment of the defendant therefrom. Writ petition NO. 1152 of 970 is filed by the plaintiff under Article 226 of the Constitution of India for the issue of a writ of certiorari or any other appropriate writ or order quashing the order of the Revenue Divisional Officer, Vijayawada, dated 9th March, 1970 passed in O.A. No. 1 of 1969 confirming the order of the Deputy Tahsildar, Gannavaram dated 26th June, 1969, granting a Ryotwari patta to the defendant under the provisions of the Inams Abolition Act in respect of an extent of Ac. 71-35 cents situate in the village of Nunna which is the subject matter of the appeal. Since the question involved in the appeal and writ petition are the same and decision in one has bearing on the other, they have been directed to be posted together for disposal. The parties hereto will be referred to in the manner they are described in the plaint.

(2.) The facts giving rise to this appeal and the writ petition are these The original plaintiff Syed Kalimulla Khan was appointed as Kazi of the Circle of Kondapalli in which capacity he was in possession and enjoyment of the suit lands which are Kazi service inam lands. Ubedulla Khan, the father of Kalimulla Khan, who was the previous Kazi, issued the suit lands, to the defendant under a registered lease deed, Exhibit A-1 dated 14th May, 1937 for a period often years The lease was terminable and the defendant who also undertook to deliver "possession at the expiry of the lease period failed to surrender possession in spite of repeated demands. After the appointment of the original plaintiff under "Exhibit A-4, proceedings of the Collector, Krishna District dated 10th November, 1943 in the place of his father he called upon the defendant to deliver up possession as the rental of Rs. 130 stipulated under Exhibit A-1 was too low. The defendant, instead of delivering possession, executed a fresh lease in favour of the "Kazi, Syed Kalimulla Khan (the original plaintiff) in Fasli 1360 stipulating rental of Rs. 2,000 per year and tried to persuade the plaintiff to accept the same through mediators ; but the plaintiff did not agree to the same as the ' maktha ' offered was too low. It is the plaintiff's case that he is entitled to claim ' maktha ' (at a higher rate as prevailing in the neighbourhood from 1357 Fali onwards by way of damages and claimed damages for Faslis 1360 to 1362 at the rate of Rs. 75 per acre and for the prior period of four Faslis 1356 to 1359 the rate of Rs. 2,000 offered by the defendant. The defendant however offered to pay the ' maktha' for Faslis 1356 to 1366 at the rate of Rs. 130 per year in the last reply notice of his dated 27th January, 1953 (Exhibit A-2) but it was not acceptable to the plaintiff. Hence the action for the reliefs already stated above.

(3.) The defendant resisted the action contending inter alia that the suit land is not service inam lands ; that it has been in the possession of the tenants for time immemorial ; that, even prior to the grant of the suit land as inam, the landholder "had only the right to collect cist and had no other right to the land, he having been granted only the melwaram right. The grantor himself had no kudivaram right as at that time, the land was in the possession of a ' ryot and as such, it is improbable that what was granted was both kudiwaram and melwaram rights. It is also the case of the defendant that the suit land was never a Kazi service inam that, as the plaintiff is not a hereditary "Kazi , the inam was granted to his ancestors as personal inam and as the land was in possession of the ryots both before and after the grant, the plaintiff had no right to ask for ejectment of the defendant from the suit land. It Was further pleaded that the defendant's predecessors-in-interest acquired permanent rights of occupancy since time immemorial and that the action is misconceived. The quantum of rental claimed on the basis of the offer under a lease deed said to have not been accepted by the plaintiff is denied. The defendant, however, expressed his readiness and willingness to pay the rental at Rs. 130 per year but when the amount was tendered to the plaintiff at the end of the respective Faslis in question, the plainiiff refused to receive the same, and therefore, he was compelled to send the maktha amount by money orders and when it became due and the money orders too were refused and returned. Plea of limitation has also been raised in respect of the profits claimed from Faslis 1356 to 1359. Another plea taken by the defendant is that he has been granted a ryotwari patta in respect of the suit lands under ActXXXVII of 1956 and hasbecomefull owner of the suit lands by paying full assessment therefor at Rs. 2-4-0 per acre and that the order granting him a ryotwari patta under the said Act shall prevail over any other law or instrument and as such, the suit is not maintainable.