STATE OF ANDHRA PRADESH Vs. DESOBOYANA LAKSHMAYYA

JUDGEMENT

(1.) The simple question in this second appeal is whether the Civil courts had jurisdiction ' in determining the reasonableness of the extent of an assignment marie out of a tank poramboke over which the villagers claimed customary prescriptive public right. The courts below have held firstly that the villagers had established that they asserted rights and have been using the water from the tank and therefore they have acquired a right therein. They have further held that the land assigned to defendants 2 to 4, political sufferers was of an extent of Ac. 6-00, leaving a water spread of over Ac. 4-00 and odd. The total area of the Survey No. is about Ac. 12-00 as it now exists and the Courts below have held that having regard to the area of the bund etc., the water spread of Ac. 4-00 is not sufficient for the, purposes of the villagers, particularly having regard to the growing needs of the village. The trial court decreed the suit against all the four defendants. Against that judgment defendants 2 to 4 did not prefer any appeal, but the Government, Ist defendant, preferred an appeal in the first appellate court. Their appeal was dismissed, and hence this second appeal.

(2.) Mr. Shankara Rao, the learned Advocate for the Government urges that the lower Courts were in error in holding that the villagers had acquired a right, and that even if they did acquire a right, what was left was not sufficient for their purpose. In my view the findings of the lower court cannot be challenged in this second appeal. The trial Court as the first appellate court have considered the evidence, and the Commissioner's report, and have come to the aforesaid conclusions.

(3.) The only question, therefore, that remains to be determained is whether the Civil Courts can adjudicate, upon the reasonableness, or whether it is the Revenue authorities alone that can determine what extent can be left for the needs of village. In support of his contention the learned Advocate for the Government has cited tie Judgment of Walsh, J., in Rudrappa v. Dasan, AIR 1933 Mad 610. But a careful examination of the facts 01 that case does not substantiate the proposition advanced by the learned Advocate. In that case, out of two survey Nos. an area of Ac. 0-96 cents and Ac. 3-83, cents had been set apart for communal purposes, out of which a certain land had been assigned to defendants 1 and 2. Both these survey numbers were registered as cattle stand in the re-settlement registers. But the Courts found as a matter of fact that one of the Survey numbers was not used for this purpose, Cut was used for other purposes, and with respect to the Ac-3-S3 cents, only portions were used as cattle stands and that Ac. 0-59 cents assigned in that survey number were not being so used. The suit was dismissed in the trial court and the decree was confirmed in the lower appellate court. It is pertinent to notice that in that case it was not argued that any grant or dedication has been proved, but it was said that once it has been registered as cattle-stand, Government can only transfer it provided they do not prejudice the rights of the villagers by diminishing the cattle-stand ground beyond what is requited and there is no finding that the land left was sufficient for the use of cattle by the villagers. Dealing with this contention Walsh, J. following the judgment of Wallace, J., held that a mere registry of the land as a 'Gramakantam', a particular hind of poramboke, in the registers does not vest any rights in the Villagers, nor does it preclude the Government from utilising it for other purposes. The question for what purposes it can be used, is not for the courts to determine but for the Revenue authorities. Walsh J., preferred to follow the decision of Wallace J., in S. A. No. 692 of 1926 (Mad) who also made observations to the same effect. Venkata Subbarao, J. in Ramaswami lyer v. Secy, of State, AIR 1931 Mad 213, on the other hand, held that what is the reasonable amount of land to be left for the purpose required, can be decided by the civil courts which observation was stated to be obiter by Walsh J. It is true that where public have not acquired any rights on Government land to what use the Government Will put that land will not be open for the courts to consider. It is certainly for the Revenue authorities to determine that matter. A similar question arose in Krishna Murthy If. Bapanayya, 1956 Andh LT 566 : (AIR 1957 Andh Pra 997) where a Bench of this court accepted this principle. After reviewing the evidence and the cases, it held that the plaintiff had not established any of the customary rights in or over the suit land alleged by them. At p. 573 (of Andh LT) ; (at p. 1001 of AIR), Viswanatha-sastry, J., observed that "Neither the transfer of the land to the category of 'Mandabayalu' poramboke from that of 'Gramakantam' poramboke in the revenue registers in 1914, nor the fugitive and the intermittent user of the land by straying cattle with the tacit assent or permission of the Government would justify the interence of a customary easement of 'mandabayalu' in the villagers". After coming to this conclusion the Bench observed that "the learned (single) Judge erred in assuming that the onus was on the Government to adduce evidence to show that no other lands were available for assignment to political sufferers before the assignment now in question could be held to be valid," nor was he justified in holding that the instructions laid down by the Government for grant of lands to political sufferers had not been followed. At p. 574 (of Andh LT) : (at p. 1001 of AIR) it was observed as follows :