MALLA APPANA Vs. IN RE

JUDGEMENT

(1.) THIS is an appeal from the order of our learned, brother Mr. Justice Manohor Pershad dismissing an application filed by the appellant under Article 226 of the Constitution. The facts giving rise to this appeal may be briefly stated: The 1st respondent filed an application under Section 13 of the Andhra Tenancy Act before the Tahsildar, Chodavaram, for eviction of the petitioners from the land in question on the ground that they committed default in the payment of rent from the years 1958-59 to 1961-62. The case of the 1st respondent was that the land was leased out in the year 1938 under a Kadava executed by the petitioners, that they were tenants holding over and that they committed default in the payment of rent. The petitioners resisted the eviction petition on the ground that the land in dispute was Darmilla Inam land, that they had occupancy rights therein and that therefore, the 1st respondent was not entitled to an order for eviction. The original, tribunal constituted under the Andhra Tenancy Act directed eviction. An appeal preferred by the petitioners to the Sub Collector, Vizianagaratn, was unsuccessful. The petitioners have thereupon filed the writ petition to quash the appellate order of the Sub Collector, Vizianagaram, and the original order of the Tahsildar, Chodavaram. Mr. Justice Manohar Pershad held that the 1st respondent was the owner of the land, that he had also obtained a ryotwari patta from the Assistant Settlement Officer under Section 15 of the Madras Estates Abolition Act and that the petitioners having failed to pay the rents due to the 1st respondent, it was a clear case of default entitling the 1st respondent to seek eviction. On the conclusions reached by him, the learned Judge dismissed the writ petition. It is against this order of the learned Judge that the petitioners have filed the writ appeal. It is contended by Mr. C. V. Dikshitulu, learned counsel for the petitioners, that the 1st respondent had obtained the ryotwari patta by committing fraud and that the petitioners are entitled to show under Section 44 of the Evidence Act that the order ot the Assistant Settlement Officer is vitiated by fraud. We may at the outset mention that the ground of fraud was not raised by the petitioners in the counter filed by them before the Tahsildar. Before the Tahsildar it was, however, contended that the petitioners themselves were entitled to a ryotwari patta. On appeal before the Sub-Collector, it was argued that the order of the Assistant Settlement Officer was vitiated by fraud. The Assistant Settlement Officer, Anakapalli. initiated a suo motu enquiry under Section 15 of the Madras Estates Abolition Act in respect of the land in question alter following the procedure prescribed under the Aboliton Act. The Older states that notices prescribed under the rules framed under Section 15 of the Act were published in the village both by beat of tom-tom and also by affixture at a conspicuous place in the village. Before the Assistant Settlement Officer no objections were filed by the present petitioners. The Assistant Settlement Officer held that the first respondent was entitled to a ryotwari patta and directed the issue of a patta in his favour. The order of the Assistant Settlement Officer was passed on the 26th of August, 1959. The first respondent filed the application for eviction in 1962. It is admitted that the petitioners have not preferred any appeal against the order of the Assistant Settlement Officer with the result that that order became final and conclusive. It is, however, argued by Mr. Dikshitulu that it is open to the petitioners to impugn the validity of that order in the present proceedings on the ground that it was vitiated by fraud. The tribunals constituted under the Andhra Tenancy Act are vested with jurisdiction with respect to specific matters. It was by virtue of the jurisdiction vested in the Tahasildar that he directed the eviction of the petitioners under Section 13 of the Andhra Tenancy Act. Unless the order of the Assistant Settlement Officer granting a ryotwari patta in favour of the 1st respondent is set aside by a competent authority, it is not open to the petitioners to question the validity of that order in a proceeding under the Andbra Tenancy Act, because a tenancy tribunal has no jurisdiction to adjudicate upon the question as to whether the ryotwari patta granted by the Assistant Settlement Officer under the Madras Estates Abolition Act, is a valid patta or not. As we have already stated, the alleged ground of fraud was not raised by the petitioners in the counter filed by them before the Tahsildar. There can be no doubt that it is not open to the petitioners to impugn the validity of the order of the Assistant Settlement Officer in a proceeding for eviction under the Andhra Tenancy Act. The learned Judge rightly concluded that since the petitioners admittedly committed default in the payment of rent, the 1st respondent-land lord is entitled to an order of eviction. It is then contended by Mr. Dikshitulu that since the 1st respondent was granted a ryotwari patta only in respect of 80 cents, the original authority, and the appellate authority, acting under the Andhra Tenancy Act, had no jurisdiction to direct eviction of the petitioners from the remaining extent of 20 cents. We have before us the order of the Assistant Settlement Officer dated the 26th August, 1959. It was there held that the 1st respondent was not entitled to a ryotwari patta with respect to the extent of 20 cents and directed that that extent should be separately sub-divided and registered as assessed waste since it was covered by a mound. Whatever might be the rights of the Government vis- a-vis the 1st respondent, the petitioners cannot very well claim that they are entitled to occupancy rights with respect to these 20 cents which is admittedly uncultivated land. The petitioners cannot, therefore, claim that they are entitled to remain in possesion of this extent of 20 cents Since the Assistant Settlement Officer granted a ryotwari patta to the 1st respondent only in respect of 80 cents, it would be for the Government to take appropriate proceedings with regard to the 20 cents. We are satisfied that the conclusions reached by the learned Judge are correct. There is no ground for interference in this writ appeal which is, therefore, dismissed. M. S. K. --------