CHIGURUPATI VENKATA SUBBAYYA Vs. PALADUGU ANJAYYA

JUDGEMENT

(1.) This Second Appeal arises out of a suit filed by the respondents as a representative suit for a declaration that the land in question is a communal land in which the ryots of South Vallur have communal rights of irrigation and drainage and that the assignment of the suit land in favour of the 2nd defendant by an order dated 21st December, 1952 of the Estates Manager is illegal and for the issue of a permanent injunction restraining the defendants from interfering with the exercise of their rights in this communal land in so far as it related to drainage and irrigation and also for the grant of a mandatory injunction against defendants 2 to 7 to restore Agakodu at their own cost to its original condition. The necessary facts are that the plaintiffs in their individual capacity and as representatives of the ryots of South Vallur village instituted the suit alleging inter alia that Survey Nos. 12 to 18, the total extent of which was Ac. 10-54 centstituated in South Vallur village of Vijayawada Taluk are Communal lands. The ryots were using them for the purpose of irrigation and draining off their surplus water. The estate was abolished on 1949. The Estate Manager on 21st December, 1951, permitted the 2nd defendant to remain in possession of those lands. Their contention therefore is that they are entitled to a declaration that the land in question is communal land and that the ryots of South Vallur have communal rights therein. They asked therefore for the reliefs mentioned at the outset of this judgment.

(2.) The 2nd defendant, who is the real contestant in the suit, resisted the suit on various grounds. His principal contention however was that he had been in possession of the lands since 1944. The Zamindar of South Vallur Estate granted patta to him under Exhibit B-6 on 15th January, 1946 of the lands measuring 9-05 acres out of this 10-54 acres of lands. The Zamindar left the other land for the purpose of drainage and since facilities for irrigation were separately provided for, those 9-05 acres of the poramboke land was no more necessary for the purpose for which it was originally used. A patta therefore of this land was granted by the Zamindar to the 2nd defendant. Under Exhibit-B-15, after the estate was abolished, the Estates Manager under section 3 (d) of the Estates Abolition Act permitted the 2nd defendant to continue in possession. He therefore contended that the lands are not communal lands and the order of the Estate Manager has been validly passed and since the plaintiffs have no communal rights in the lands as their needs have been already met by the Zamindar as mentioned above, the suit is liable to be dismissed. During the pendency of the suit, a patta was granted under section 11 of the Estates Abolition Act in favour of the second defendant under xhibit 6-30 on 10th December, 1955. Upon these pleadings the Second Additional District Munsif, Vijayawada, framed appropriate issues and after recording the evidence adduced by the parties dismissed the plaintiffs' suit. He found that the lands in question ceased to be used for the purpose for which they were originally meant as alternative arrangement for irrigation purposes has already been made and that for drainage 1.49 acres of land has been set apart. He also reached the conclusion that the plaintiffs have not been using for communal purposes the lands in question. He did not find any defect in the order of the Estates Manager and the subsequent grant of patta by the Assistant Settlement Officer in favour of the second defendant.

(3.) The plaintiffs, dissatisfied with that judgment, carried the matter in appeal. The Second Additional Subordinate Judge, Vijayawada, by his Judgment dated 8th December, 1961 allowed the appeal and decreed the plaintiffs' suit reversing the judgment of the trial Court. The learned Subordinate Judge held that the lands continued to be communal lands and that the plaintiffs and the other ryots are using the lands for communal purposes and that the grant of patta by the Assistant Settlement Officer is bad in law. It is this judgment of the learned Subordinate Judge that is now assailed in this second appeal. The first contention of the learned Counsel for the appellant is that the learned Subordinate Judge has not given any categorical finding that the lands in question are used for communal purposes by the ryots of the South Vallur village. He therefore insisted that I should remit the case to the learned Subordinate Judge for giving that finding. A reading of judgment however, clearly shows that the learned Subordinate Judge did apply his mind to this aspect of the case although it is true that he did not pose for his consideration this question directly and decide the same in that way. But a careful reading of that judgment would disclose that he found expressly that the lands continued to be communal lands and that the ryots of the village still enjoy their communal rights. 1 do not therefore find any necessity to remit the case to the Subordinate Judge for that prupose. The real question in this case is whether the Zamindar was competent to grant patta of the suit lands in favour of the second defendant in 1946 and whether the Estate Manager was also competent to pass an order under section 3 (d) of the Estates Abolition Act and consequently whether the Assistant Settlement Officer was competent to grant patta as he did under Exhibit B-30 on 10th December, 1935. Any answer to these questions depend upon the character of the suit lands. It is not in dispute that the lands S. Nos. 12 to 18 admeasuring 10 acres and 54 cents, situate in South Vallur village in Vijayawada Taluk are poramboke lands. That they were used for the purpose of irrigation and drainage is also not in dispute. It is common ground that under Exhibit A-1, the Collector, Krishna, passed an order under section 2 o-A (i) (ct] of the Madras Estates Land Act as amended by Madras Act VIII of 1934 to the effect that the 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 18 (both inclusive) continued to be communal lands and no order under section 20-A (2) was at any time passed by the 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 18 continued to be communal lands till the estate was abolished.