GOPISETTI NARAYANASWAMI NAIDU GARU Vs. CHODAVARAPU KAMANNA

JUDGEMENT

(1.) We deal at present only with the objection to the jurisdiction and with one ground on which appellants have attempted to support that of the Civil Court, that the suit land is tank-bed within the meaning of that expression as used in Section 3(16) of the Estates Land Act. No doubt, if the land is tank-bed, it follows from that provision that it is not ryoti and the lower Appellate Court s finding at the conclusion of the 7th paragraph of its judgment that it is ryoti and the acquisition of ryoti right in it, in spite of the proprietor, possible, is unsustainable.

(2.) The lower Appellate Court s use of language is not clear. But we understand it to hold that the land lost the character of tank-bed at some date not specified, and was cultivable waste at the date of suit, because of its cultivation for fourteen years. It is not, in our opinion, clear that this fact alone is a satisfactory ground of decision. The Act contains no definition of "tank-bed." But the lower Appellate Court has proceeded on the assumption that the land originally had that character, although it was justified in doing so by no admission of defendants and in fact their written statement rather denies it. If, however, that assumption was justified, there is then the difficulty that the wording of Section 3(16) suggests its application to land, which had not lost its character as tank-bed, when the Act came into force; and, if so, a determination of the date on which that character was lost, is necessary, before the lower Appellate Court s argument can be accepted. Again it is argued that letting and cultivation of the land are not necessarily inconsistent with its retention of that character. For land may be let, but may not be cultivated in years in which water does not cover it or may be cultivated, notwithstanding that it does so temporarily; and the evidence as to the fourteen years letting referred to by the lower Appellate Court does not show whether it was of either character or that it involved an abandonment of the use of the land as tank-bad. In this connection reference maybe made to the evidence of plaintiff s 1st and 2nd witnesses regarding the existence of a bund between the land and the tank and the possibility which the lower Appellate Court has not considered, that it indicates such abandonment. It is not our intention in referring to these points to attempt an exhaustive enumeration of those to which the parties and the lower Appellate Court may appropriately attend. We specify them only because they have been mentioned in argument and no authority regarding the interpretation of the term tank-bed" in Section 3(16) having been cited, such specification may be of assistance in the further enquiry which we mean to direct.

(3.) The interpretation of the term tank-bed" raises new and important questions and we cannot regard the lower Appellate Court s determination of it, reached without any finding by the trial Judge and apparently without appreciation by the parties of the matters really in issue, is satisfactory. We, therefore, call for findings on the issues: (1) Whether the suit land was ever continuously used for the storage of water? (2) If so, whether such use has been permanently abandoned and at what date?