Sri Krishna Salt Works Vs. State of A.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/441143
SubjectCivil
CourtAndhra Pradesh High Court
Decided OnJul-21-2003
Case NumberAppeal No. 328 of 1980
JudgeB.S.A. Swamy and ;E. Dharma Rao, JJ.
Reported inAIR2004AP66; 2003(5)ALD484
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 11; Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Sections 11A
AppellantSri Krishna Salt Works
RespondentState of A.P.
Appellant AdvocateK.V. Satyanarayana, Adv.
Respondent AdvocateAdv. General and ;Government Pleader
Excerpt:
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civil - principle of res judicata - sections 9 and 11 of code of civil procedure, 1908 and section 11 of estates (abolition and conversion into ryotwari) act, 1948 - whether judgment in writ petition operates as res judicata - aggrieved party can file suit questioning correctness of order passed by statutory authority in civil court - even if he approach high court and suffer adverse order prior to approaching civil court will not operate as res judicata. - specific relief act, 1963 [c.a. no. 47/1963]. sections 31 & 34: [bilal nazki, v.v.s. rao & g. chandraiah, jj] [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true.....
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b.s.a. swamy, j.1. this appeal arises out of the judgment and decree passed in os no. 8 of 1979 dated 6.2.1980 on the file of the district court, at visakhapatnam.2. the plaintiff is the appellant before this court and the parties are referred to as they are arrayed in the suit.3. the plaintiff filed the above suit for declaration that the suit schedule land is not a communal poromboke but a ryoti land belonging to the plaintiff and consequently sought for a permanent injunction restraining the defendant/government from interfering with the possession and enjoyment of the plaint schedule land by the plaintiff, for recovery of rs. 76,608/- being the penalty and paid interest as per memo, for subsequent interest, for costs and such other reliefs which the honourable court deems fit and.....
Judgment:

B.S.A. Swamy, J.

1. This appeal arises out of the judgment and decree passed in OS No. 8 of 1979 dated 6.2.1980 on the file of the District Court, at Visakhapatnam.

2. The plaintiff is the appellant before this Court and the parties are referred to as they are arrayed in the suit.

3. The plaintiff filed the above suit for declaration that the suit schedule land is not a communal poromboke but a ryoti land belonging to the plaintiff and consequently sought for a permanent injunction restraining the defendant/Government from interfering with the possession and enjoyment of the plaint schedule land by the plaintiff, for recovery of Rs. 76,608/- being the penalty and paid interest as per memo, for subsequent interest, for costs and such other reliefs which the Honourable Court deems fit and proper in the circumstances of the case.

4. The case of the plaintiff is that the plaint schedule land is situated in Vada Cheepurpally village, Anakepalli Taluk, Visakhapatnam District, which forms part of Cheepurpally Estate. The estate holder granted patta No. 98 in favour of one R. Gajapathi Rao and he was leasing out the properties to the tenants for the purpose of cultivation and also excavation of lime shells and was paying assessment thereon to the landholder. That Gajapathi Rao seems to have leased out 350 acres of land under registered kadapa on 7.11.1927 (Ex.A3) to one Hanumahtha Rao Naidu. While things stood thus, on 29.11.1948 Mr. Gajapthi Rao sold the entire land to his daughter by name Mrs. B.V.S. Narayan Rao, covered by patta No. 98 for a sum of Rs. 3,000/- under registered sale deed. The case of the alienees is that she is getting the land cultivated by giving on lease under registered lease deed. We need not go into those details. The estate was notified on 1.10.1951 and taken over by the Government on 10.5.1952. Before the estate was notified, no survey seems to have been taken place in the estate. The lessee as well as the alienee Mrs. BVS Narayana Rao applied for ryotwari patta under Section 11-A of the Estate Abolition Act (for short Estate Act) for the land under their possession on 28.4.1954. The Assistant Settlement Officer, after conducting enquiry granted patta for an extent of 350 acres to her on the basis of the lease deed and the sale deed in favour of alienee, though the Tahsildar/Manager appointed under the Act stated that the extent of lands will be around 700 to 800 acres. The patta was granted on 27.11.1954. Subsequently the plaintiff purchased an extent of Ac.807-00 of ryothi land under a registered sale deed dated 1-7-1957, from Smt. B.V.S.Namyana Rao. From the record it is seen that Survey was conducted for the first time in the year 1957 under Section 21 of the Estate Abolition Act read with the provisions of Madras Survey and Boundaries Act, 1923. After preliminary survey was conducted, the survey party served a notice under Section 9(2) of the Madras Survey and Boundaries Act, 1923, stated that the land covered by paimash No. 396/1 to 396/2 is covered by patta No. 98 to the extent of 1400 acres. Subsequently, in the resurvey, they have shown the land as 1380 acres and the same was communicated to the plaintiff. Some time thereafter, i.e., on 5.11.1958, rough patta was issued to the plaintiff stating that the Survey No. 461 on actual measurement was only 504 acres in area and the plaintiff did not chose to canvass the correctness of the patta given by the Assistant Settlement Officer for 504 acres of land. In 1962 when the Hindustan Mineral Products Company tried to establish a factory, plaintiff and Smt. B. V.S. Narayana Rao seems to have initiated proceedings under Section 144 Cr.P.C. and also filed Revision RP No. 183 of 1962 before the Settlement Officer against the grant of patta for 504 acres on 6.11.1958 by contending that by virtue of the notice given to her under Section 9(2) of the Madras Survey and Boundaries Act, 1923, she is entitled to get patta for 1380 acres and not merely 504 acres for which rough patta was issued, since the patta initially given to her before conducting survey on 27.11.1954 is only for the un-surveyed land on the assumption that it is only 350 acres. She also requested the Settlement Officer to relay on the ground the boundaries for total extent of 1380 acres, as per the boundaries mentioned in kadapa, after demarcation of the eastern boundary of West Cheepurupally village. The Hindustan Mineral Products Company as well as the Collector, contended that the Settlement Officer by wrongly demarcating the land included the land in Devada in the patta, ignoring the demarcation of the boundary between the two villages i.e., Cheepurupally and Devada village, as early as in 1912. As per the survey done at that point of time, the extent of land could not be more than 350 acres that was covered by patta No. 98. The said Settlement Officer came to the conclusion that the Survey of Devada village done in 1912 is not binding on the plaintiff and he had jurisdiction to enquire into the boundaries. After making local inspection by himself, as well as by Tahsildar with the assistance of Deputy Surveyor belonging to No. 7 party, Vizianagaram, he accepted the report of the Settlement Tahsildar and held that the correct eastern boundary of Cheepurupally (west) village as well as the western boundary of Devada Mokhasa village is the same as in the sketch filed by the Settlement Tahsildar and granted ryotwari patta for the entire extent comprised within the limits of the boundaries specified in the registered kadapa Ex.P-1 and Ex.P-4 i.e., relevant entry in Ex.B-3, survey register. At the same time, the Settlement Officer held that the actual extent of area will be determined after the receipt of report of the Officer-in-Charge, No. 7 Survey Party, Vizianagaram, by giving a direction to the survey party to demarcate the boundary on the basis of the report of the Settlement Tahsildar and the rough sketch prepared by him. Accordingly, he allowed the revision petition.

5. Aggrieved by the order, the Collector as well as Hindustan Mineral Products Company went in appeal to the Director of Settlement, who held that the two villages i.e., Cheepurupally and Devada are situated in two different taluks, according to the survey plans of 1903, marked as Exs.C-5 and C-6; that the Zamindar of Cheepurupalli would not have granted patta for the land, which does not belong to him at all. On that basis, he allowed the revision petition and set aside the order of the Settlement Officer granting patta to the plaintiff herein for the area extending Devada Mokhasa village and directed the village boundary should be retained as it is with reference to the block survey of Devada village in 1912. The plaintiff aggrieved by that order, carried the matter in revision to the Board of Revenue. Before the Board of Revenue, the Wakf Board and some villagers made their applications to impleaed themselves as parties to the revision petition, by contending that the land in question is a communal poromboke and patta No. 98 does not co-relate to RS No. 461 of Cheepurupally village. In regard to correct localization of the lands of patta No. 98 and also on the suggestion made by the parties, one D. Venkata Rao, Assistant Director of Survey and Land Records was deputed to submit a report with a sketch localizing the lands after verification on the ground. After submission of the report by the Assistant Director, parties have filed objections and ultimately the Board framed the issue for consideration as under:

'...The main issue that remains for decision is in respect of localization of the patta land in Cheepurupally village as claimed by the claimants with reference to the description of boundaries given in the kadapa. It is obvious that the patta No. 98 granted by the landholder of Cheepurupalli village can only relate to the lands situated within the limits of Cheepurupalli village and can under no circumstances refer to the lands not situated within the limits of his estate. The, primary question for examination is, therefore, whether the lands now claimed by the revision petitioners before the Board are situated within the limits of Cheepurupalli Zamin village or are situated within the adjacent Mokhasa village of Devada...'

6. Ultimately the Board accepted the sketch prepared by the Assistant Director, Survey and Land Records and recorded a finding that patta No. 98 comprising of old Sy. Nos. 396/1 and 2 are co-related to RS Nos. 127 P, 128, 130/P, 446/P, 447 to 451, 459, 560, 546/P, 462, 463, 464, 467 to 479 of Cheepurupally village admeasuring approximately 436 acres. The Board also recorded a finding that the northern portion of RS No. 461 which was shown in yellow colour by the Assistant Director do not form part of patta No. 98 and it should be got subdivided and registered in revenue accounts as grazing ground poromboke. Accordingly, joint revision petition filed both by the plaintiff herein and Smt. BVS Narayana Rao was dismissed and the revision petition filed by the other villagers is partly allowed, though there is no revision petition filed by the villagers. They only filed application seeking for permission to implead themselves as respondents. It is useful to extract the penultimate paragraph of the order, which reads as under:

'...The Board therefore, has that the land comprising of patta No. 98 of Cheepurupally village, with reference to the boundaries furnished in Kadapa 1927, are localized as the lands colour washed in read sketch enclosed. It is accordingly directs that in part modification the patta issued by the ASO for RS No. 461, Mrs. B.V.S.Narayana Rao, should be granted patta for R.S. No. 127 P, 128, 130/P. 446/P, 447 to 451, 459, 560, 5461/P, 462, 463, 464, 467 to 479 of Cheepurupally village measuring approximately 436 acres. Northern portion of R.S. No. 461 colour washed in yellow should be got sub-divided and registered in accounts as grazing ground poromboke. The revision petition filed by the villagers Cheepurupalli is partly allowed. The joint revision petition filed by Mrs. B, V.S. Narayana Rao and Sri Krishna Salt Works and me Revision Petition filed by the other revision petitioners 3 to 7 are hereby dismissed...'

7. Questioning the correctness of that order, the plaintiff filed Writ Petition Nos. 1065 and 1322 of 1966 on the file of this Court and the same was dismissed by this Court on 6.3.1967. A reading of the judgment in the writ petition makes it abundantly clear that the learned Judge is carried away with the fact that since the parties have agreed for localization of the land, that cannot take any exception for the direction given by the Board of Revenue, in the following terms:

'...As a result of this agreement, the Assistant Director was directed to localize the said land after relaying the boundary and to submit his report. No exception can be taken to this direction which had flowed from the joint wishes of the parties. The parties are bound by the proceeding and report of the technical officer unless it suffered from any legal flaw....'

At another place, the learned Judge observed thus:

'...What is more, the way proposed for localizing the land was agreed to by the petitioners themselves. In these circumstances, there is no scope for the contention that the order of the Board suffers from any such defect as alleged....'

From this the learned Judge was simply carried away with the fact that the parties agreed for the localization of the land and did not go into the correctness or otherwise of the order and the direction of the Board to the authorities concerned to record the northern portion of RS No. 461 as grazing ground poromboke. Thereafter the revenue authorities granted revised patta No. 994 only for an extent of 194.96 cents, presumably the land covered by Sy.No. 461. Assailing this order, the plaintiff filed the above suit for the reliefs mentioned supra.

8. We have culled out the facts from the pleadings and orders of the Board of Revenue as well as the orders of High Court in the writ petition. The defendants i.e., the Revenue authorities practically admitted the case of the plaintiff and their only contention is that the judgment of this Court in Writ Petition No. 1065 of 1966 operates as res judicata. It is also their case that the jurisdiction of the Civil Court is specifically barred as per the judgment in Jaya Syamala Rao v. Sri Radhakantha Swami, 1984 (11) ALT 286. Hence, the suit itself is not maintainable.

9. On the basis of the above pleadings, the Trial Court framed the following issues:

1. Whether the plaint schedule land is ryoti land situated in village of Cheepurupalli of Anakapalli Taluk or communal poromboke?

2. Whether the plaintiff or his predecessors-in-interest has right over schedule land covered by S. No. 461 of village Cheepurupalli?

3. Whether the plaintiff is entitled for declaration prayed for?

4. To what relief?

10. On behalf of the plaintiff, while PWs.1 to 4 were examined as witnesses and Exs.A-1 to A-13 were marked as exhibits, on behalf of the defendants, a Clerk in Collectorate was examined as DW-1 and got Exs.B-1 to B-10 marked in support of their case.

11. The learned Judge, having held against the plaintiff on all the issues, dismissed the suit. In fact, the learned Judge recorded a finding that the entries in the revenue records were tampered.

12. Assailing the said judgment and decree, the present appeal is filed.

13. The issues that arise for consideration in this appeal are:

(1) Whether the civil Court is having jurisdiction to entertain the suit against the proceedings under Section 11 of the Estate Abolition Act for grant of ryotwari patta?

(2) Whether the judgment in Writ Petition No. 1065 of 1966 operates as res judicata?

(3) Whether the order passed by the Board of Revenue dated 29.6.1966 as well as the order of this Court in WP No. 1065 of 1966 dated 16-34967 can be sustained in law?

14. Before going into the merits of the case, we should keep in mind that the order granting rough patta in favour of the plaintiff on 6.11.1958 for an extent of 540 acres still holds the field. The said order was not set aside or cancelled by any authority or Court till this day. Further the Board of Revenue held that the patta No. 98 is co-related to RS No. 127 P,128, 130/P, 446/P, 447 to 451, 459, 560, 5461/P, 462, 463, 464, 467 to 479 of Cheepurupally village and as per the latest survey, the extent of land within the boundaries covered by patta No. 98 is approximately 436 acres. In fact, the Board directed the revenue authorities to grant patta for that extent of land. But at the same time the Board recorded a finding that the northern portion of RS 461 which is shown in yellow colour by the Assistant Director is a communal and grazing ground poromboke land. The correctness of this finding will be discussed at a later point of time. But the Revenue Authorities granted patta for 194 acres in Sy.No. 461/P, leaving the land covered by other survey numbers which form part of patta No. 98 as per the order of the Board. Under the above factual background, we would like to deal with the issues that have arisen for consideration by this Court in this appeal.

15. Issue No. 1: For a considerable time, there was a conflict of opinion with regard to the maintainability of the suit on the proceedings arising out of Section 11 of the Estate Abolition Act with regard to the grant of ryotwari patta. But the controversy was set at rest by the Supreme Court in State of Tamil Nadu v. Rama Linga, : AIR1986SC794 . Their Lordships were dealing with the issue whether a civil suit is maintainable in view of the prohibition contained in Section 64(3) of the Tamil Nadu Act, which is in pari materia the same as that of A.P. Act. In the light of Section 64(c) of the Tamil Nadu Act, which provides that any order passed by the Government or any authority under the Act in respect of matters to be determined for the purpose of the Act, shall subject only to any appeal or revision provided by or under the Act, be final. It further provides that no order is liable to be questioned in any Court of law. While the Trial Court dismissed the suit, the appellate Court found that the land was ryoti land, but in view of Section 64(c) of the Tamil Nadu Act, it felt compelled to dismiss the suit. However, the High Court in second appeal accepted the finding of the appellate Court that it was ryoti land and on question of jurisdiction held that the civil Court had jurisdiction to decide the questions. Their Lordship of the Supreme Court while confirming the judgment of the High Court observed thus:

'...It was observed that there is no provisions in Section 11 of the Tamil Nadu Act for any enquiry into the nature of character of the land before granting or refusing to grant patta to the applicant and that a summary decision of this type in an enquiry conducted for revenue purpose could not be regarded as final or conclusive so as to constitute a bar to the jurisdiction of a civil Court adjudicating upon the same issue arising in a suit for injunction filed by a ryot on the basis of title and/or long uninterrupted possession. It further held that even where the statute gave finality to the orders passed by the Special Tribunal which excludes the jurisdiction of the civil Court only when there is adequate remedy to do what the civil Court would normally do in a suit, then only the civil Court's jurisdiction would be barred...'

16. Thus, the Supreme Court ultimately held that the civil Court is having jurisdiction to entertain a/suit.

17. A similar question arose before a Division Bench of this Court in Kosuru Venkata Krishnaiah and Ors. v. Molakala Sidda Reddy and Ors., 1990 (1) ALT 163 (DB). Mr. Justice Syed Shah Mohammed Quadri, as he then was, speaking for the Bench, having reviewed the case law on this aspect including Jaya Syamala Rao v. Sri Radhakantha Swam's case wherein this Court has taken a view that no suit can lie against an order passed under Section 11 of the Estate Abolition Act, held that the said judgment is no longer good law in view of the decision of the Supreme Court and held that the order passed under Section 11 of the Estate Abolition Act is not final and conclusive and that the jurisdiction of the civil Court to examine the issue of nature of the land which is incidentally determined by the Tribunal, has not ousted either expressly or impliedly and, therefore, the civil Court has jurisdiction to entertain the suit and to go into the question of the nature of land and decide the same on the material placed before it. In fact, while there is a provision in the Tamil Nadu Act excluding the jurisdiction of the civil Court, there is no such provision in A.P. Act. Hence, we respectfully agree with the judgment of the Supreme Court and the decision of our own High Court in Kosuru Venkata Krishnaiah 's case and hold that a civil suit is maintainable against the order passed by the statutory authority under Section 11 of the Estate Abolition Act.

18. Issue No. 2: It is true that a learned Judge of this Court dismissed the writ petition and upheld the order of the Board of Revenue solely on the ground that the parties have agreed for appointment of an expert to localize the land and for relaying the boundary. As such they cannot contend that the order of the Board suffers from infirmities.

19. We have carefully seen the order of the Board of Revenue as well as the learned Judge. What all the parties agreed was for relaying boundaries between Cheepurupally and Devada villages, in the light of rival contentions of the parties and to localize the land covered by patta No. 98. They have not agreed for anything more than that. Even then the Board of Revenue categorically recorded the finding that patta No. 98 is co-related to RS No. 127/P, 128, 130/P, 446/P, 447 to 451, 459, 560, 5461/P, 462, 463, 464, 467 to 479 of Cheepurupally village and the extent is approximately 436 acres. In fact, the Board of Revenue directed the Revenue Authorities to reissue patta for this extent. At this stage, without going into the merits or demerits of the other directions, the Board categorically directed the Revenue authorities to grant patta for 436 acres. But the District Authorities granted patta only for 194.96 acres, part of Sy. No. 461, without granting patta for the lands covered by other survey numbers in patta No. 98 as per the order of the Board. This is the gravest illegality committed by the Revenue authorities concerned. But neither the plaintiff pointed out this error to the civil Court nor the civil Court onsidered whether the action of the District Revenue Authorities for granting patta for 194.96 acres is correct or not. The Court was more obsessed with the fact that the revenue records were tampered and dismissed the suit, more so without there being any issue before the civil Court. As pointed out by the civil Court, there may be possibility of tampering the records during the long span of litigation to claim more land, which is human conduct. But, the Court has forgotten the fact that immediately after abolition of the Estate, in 1954, the Assistant Settlement Officer granted patta for an extent of 350 acres of un-surveyed land. But survey operations were conducted for the first time in the estate village in 1957. Initially, the survey authorities informed the plaintiffs that the extent of land to be 1400 acres in patta No. 98. But on 6.11.1958 they have given a rough patta for an extent of 504 acres and the plaintiff did not raise any finger against this order. It is only in 1962 when the Hindustan Mineral Products Company tried to erect a factory, they started contending that they are entitled for the patta for 1380 acres but not 504 or 350 acres, as determined by the Assistant Settlement Officer in his earlier proceedings. The civil Court has completely missed this issue. Hence, we feel that the High Court did not specify the extent for which patta has to be granted by the Revenue Authorities. The only thing that was done by the High Court is, it has upheld the order of the Commissioner. Viewed from any angle, rough patta stands for 504 acres or even as per the erroneous orders of the Board of Revenue, the plaintiff is entitled for patta for 436 acres. The variation is very little and the judgment would not come in the way of the civil Court in granting the relief. Even assuming that the judgment of the High Court comes in the way of the civil Court in granting the relief, we have to see whether the same operates as res judicata or not.

20. Their Lordships of the Supreme Court in Mangu Ram and Ors. v. M. Venkataraman and Ors., : (1987)2SCC228 , have held that the order of the High Court dismissing the writ petition questioning the order of the A.P. Estate Abolition Act by the Settlement Officer is legal and binding on the parties to the extent that it could have determined the question before him i.e., the Settlement Officer. The rejection of the writ petition did not and could not clothe the order with jurisdiction which the Legislature had not conferred. That being the case, the decision rendered by the Settlement Officer could not operate as res judicata in a subsequent proceeding under Section 56 in the course of which alone the right of ryotwari patta could be determined.

21. In Burmah Sheel and Storage and Distributing Company of India Limited v. The Labour Appellate Tribunal of India, Madras Bench, : AIR1957Mad60 , a question arose whether the orders passed by the High Court in a writ petition questioning the order of Industrial Appellate Tribunal, operates as res judicata in a subsequent proceeding. The Court in paragraph No. 8 held thus:

'...The learned Advocate General, who appeared for the company was well founded in his contention, that as an industrial dispute itself is not within the jurisdiction of the High Court to decide, the decision on one of the collateral issues whether the dispute is between an employer and workmen, to constitute that dispute an industrial dispute within the meaning of the Industrial Disputes Act, is also within the jurisdiction of the statutory Tribunals created by the Industrial Disputes Act and by the Industrial Disputes Appellate Tribunals Act.

The High Court had no exclusive or even concurrent jurisdiction to decide an industrial dispute or the issues incidental thereto. No doubt the correctness of the decision of the Appellate Tribunal, that whether the three categories of employees were workmen or not, came up for consideration in WP No. 405 of 1953 (Mad)(a). But it was a limited jurisdiction that the High Court exercised in those proceedings under Article 226 of the Constitution, which the relief asked for was the issue of a writ of certiorari. The scope of that jurisdiction was explained by the Supreme Court in Hari Vishnu Kamath v. Ahmed Ishaque : [1955]1SCR1104 . The learned Judge observed:

'...According to the common law of England, certiorari is a high prerogative writ issued by the Court or tribunals in the exercise of supervisory jurisdicion with a view to ensure that they acted within the bounds of their jurisdiction. To that end, they were commanded to transmit the records of a casue or matter pending with them to the superior Court to be dealt with there, and if the order was found to be without jurisdiction, it was quashed...'The Court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the Court or the Tribunal. Its work was destructive. It simply wiped out the order passed without jurisdiction and left the matter there. In T.C.Basappa V. T.Nagappa, : [1955]1SCR250 (E), Mukhejee, J. dealing with this question observed:

'...In granting a writ of certiorari the superior Court does not exercise the power of an appellate Tribunal. It does not review or re weigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior Tribunal. This offending order or proceedings so to say is put out of the way as one which should not be used to the detriment of any person...'Thus, though the High Court held in WP No. 405 of 1953 (a) that the decision of the Appellate Tribunal in the appeal preferred to it against the award in I.D. No. 2 of 1952 was correct, that did not result in the substitution of the finding of the High Court for that of the Appellate Tribunal. The learned Advocate General also referred to the decision of the Privy Council in Toronto Railway Co. v. Corporation of the City of Toronto, 1904 AC 809 (G).

The relevant observations were at page 815. Nor did the order of the Appellate Tribunal with its finding merge in the order of the High Court in WP No. 405 of 1953. It was not the High Court that was the Court of competent jurisdiction to decide the issue in an industrial dispute. That jurisdiction was vested only in the statutory Tribunals.

The proceedings in the High Court under Article 226 of the Constitution were not proceedings for adjudication of an industrial dispute. The plea of res judicata in this case, therefore, must be rested only on the decision of the Appellate Tribunal in the appeal against the award in I.D. No. 2 of 1952...'

22. The same question arose before this Court in Mangu Ramdas v. Madurai Venkataratnam and Ors., : AIR1973AP256 , and a Division Bench of this Court in paragraph No. 28 held thus:

'...Let us then examine the two contentions relating to res judicata. Taking the firs for consideration that the previous order in W.A. No. 72 of 1961 dated 11.9.1961 operates as a res judicata, it is not in doubt that the High Court has no exclusive or even concurrent jurisdiction to decide any dispute coming under Section 11, 15 or 56 of the Act or any issue incidental thereto. The jurisdiction to decide those disputes vests only in the statutory Tribunals constituted under the Act. Hence, where the High Court in a writ petition has decided that the decision of the Estates Abolition Tribunal in appeal against an order of the Settlement Officer, was correct, the plea of res judicata, if any, must be rested on the decision of the Estates Abolition Tribunal and not on the decision of the High Court. We are fortified in our view by a decision of the Madras High Court in Burmah Shell Co. v. I.A. Tribunal, : AIR1957Mad60 ....'

23. The learned Government Pleader has placed reliance on a decision Gulab Chand Chhotalal Parikh v. State of Gujarat, : [1965]2SCR547 , wherein Their Lordships of the Supreme Court in paragraph No. 60 held as under:

'..As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the said matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial...'

24. Reliance is also sought to be placed on a decision The Premier Cable Co., Ltd. v. The Government of India and Ors., AIR 2002 SC 2418. Their Lordships of the Supreme Court held that once the writ petition filed against the revisional order is dismissed and the said judgment was not challenged before the Supreme Court, the assessment order passed against the appellant attained finality.

25. This being general proposition, we have no quarrel with the principles laid down in the judgment relied on by the learned Government Pleader. But the decisions referred to by Sri K. V. Satyanarayana, the learned Counsel appearing for the appellants arise under Special Enactment and they are more relevant to the issue involved in this case. From these decisions it is crystal clear that the judgments of the High Court is relatable to the orders passed under the Special enactments and the plea of res judicata must be rested on the orders of the statutory authorities provided under the Special Act. So far as the A.P. judgment is concerned, it has directly arisen under the Estate Abolition Act. The sum and substance of these decisions would be that any decision rendered by the High Court on a matter on which it has no exclusive or even concurrent jurisdiction, the order has to be traced to the order of the Tribunal under Special enactment to consider the plea of res judicata. Now the Supreme Court as well as this Court has ruled that the aggrieved party can maintain a suit questioning the correctness of the order passed by the statutory authority, in a civil Court and even if he approaches High Court and suffers an adverse order, prior to approaching Civil Court it would not operate as res judicata. Hence, the view taken by the Civil Court that the judgment of the High Court in Writ Petition No. 1065 of 1966 dated 16-3-1966 operates as res judicata cannot be sustained in law.

26. Issue No. 3; As stated supra, when the Hindustan Mineral Products Company tried to erect a factory, the plaintiff and Smt.B.V.S. Narayana Rao filed revision petition RP No. 183 of 1962 before the Settlement Officer against the order of the Assistant Settlement Officer dated 6.11.1958 wherein rough patta was granted for 504 acres. Before the Commissioner, the Hindustan Mineral Products Company as well as Collector contended that when boundaries between Cheepurupally and Devada villages were demarcated during the survey operations that have taken place in 1912, the extent of land covered by patta No. 98 in Cheepurupally village would not be more than 350 acres. The Settlement Officer after making local inspection by himself as well as with the assistance of Settlement Tahsildar, granted ryotwari patta to the entire extent comprised within the limits of boundaries specified in Ex.P-1, registered kadapa and Ex. P-4 xerox copy of relevant entry in Ex. B-3, survey land register relating to Vadacheepurupally, which in fact went beyond the limits of Cheepurupalli village into Devada Mokhasa, and directed the Survey Party to fix the eastern boundary of Cheepurupally village on the basis of the report of the Settlement Tahsildar and the rough sketch prepared by him, ignoring the boundaries fixed in 1912 survey between the two villages. Aggrieved of the said order, the Collector preferred revision before the Director of Survey, Settlement and Land Records and the Director was pleased to set aside the order of the Settlement Officer in RP No. 40 of 1963 and Batch by holding as follows:

'...Cheepurupally village is an estate village of Anakapalli Taluk and Devada is an Inam village of Visakhapatnam Taluk not coming under the purview of the Estates Abolition Act. The revision petitioners are not entitled for any land situated in Devada village. On a perusal of the old pattas filed in Lower Court records, which is the subject-matter in RP No. 41 of 1963 to 44/1963, it is found that the landholders assigned lands situated in Cheepurupally east whereas the Settlement Officer referred to in his orders that they are situated in Cheepurupalli west. This is also an inconsistency in the orders of the Settlement Officer. In the above circumstances, I set aside the orders of the Settlement Officer in all the above cases in granting patta to the respondents to the area extending into Devada village. The village boundary should be retained as it is with reference to block survey map of Devada Village and other plans...'

27. Aggrieved of the said order, the plaintiff carried the matter in further revision to the Commissioner. During the pendency of the revision petition, on the suggestion of the parties, one D.Venkata Rao, Assistant Director of Survey, Settlement and Land Records was deputed to submit a report with sketch localizing the land after verification on the ground. The said officer having inspected the land submitted a report saying that the land covered by patta No. 98, Cheepurupally village extends over to RS No. 127/P, 128, 130/P, 446/P, 447 to 451, 459, 560, 5461/P, 462, 463, 464, 467 to 479 of Cheepurupally village, measuring approximately 436 acres.

28. From the order of the Commissioner, it is seen that the plaintiff as well as other parties filed objections to the Commissioner's Report and the Commissioner having framed the primary question for examination as to whether the lands now claimed by the revision petitioners before the Board are situated within the limits of Cheepurupalli Zamin village or are situated within the adjacent Mokhasa village of Devada, unfortunately, accepted the report of the officer wherein he stated that the yellow marked portion in the sketch is a grazing ground poromboke. He also stated that while the land covered by Sy. No. 461 includes in patta No. 98 the other land in Sy. No. 461 on the northern side is grazing ground poromboke, whereas the case of the plaintiff is that the entire land covered by Sy. No. 461 is included in patta No. 98. As a matter of fact, the contention of the plaintiff is that the entire land covered by Sy. No. 461 is the land covered by patta No. 98. But the Officer stated that the land in several other Sy. Nos. also forms part of patta No. 98. In fact, the Settlement Officer granted patta for 1380 acres in Sy. No. 461 only. After the dismissal of the writ petition, the Settlement Officer granted patta only for 194.96 acres in Sy. No. 461. He has not included the lands covered by other Survey Numbers which form part of patta No. 98 as per the report of the Assistant Director. Hence, the Commissioner without deciding this issue whether the land covered by patta No. 98 is situated only in Sy.No. 461 or any other survey numbers simply accepted the report of the Assistant Director and directed the Revenue Authorities to grant patta for the land including the Survey Numbers mentioned by the Assistant Director for the extent of 436 acres and the northern portion of the land in red colour should be got sub-divided and registered in accounts as grazing ground poromboke.

29. We should keep in mind that the estate was abolished in the year 1952 and the Assistant Director was deputed to make local inspection in 1966, by which time several changes might have taken place in the nature of the land and the report cannot form the basis to decide whether the land is ryoti land or Government poromboke land at the time of abolition of the estate. The authorities are expected to look into the old records to decide the nature of land at the time of taking over the estate, but not the present position. A Division Bench of this Court has taken a similar view in M. Ramanamma v. Commissioner of Survey, Settlement and Land Records, Hyderabad and Anr., 2000 (2) ALD 12 (DB), and observed in paragraph No. 29 as under;

'...Mr. Sinha was of the opinion that the sites were covered by hills, the nature of soil was rocky, completely unfit for cultivation, there was no signs of cultivation and it was never cultivated at any time. In this regard, it has to be seen that the patta was granted in 1960 and the inspection took place after 15 years. Even regarding the inspection report, we perused the original file, wherein the plans of the lands are available. It is not clear from the plans whether the entire extent of land was uncultivable or only a portion thereof was uncultivable. From the plan, we found that the streams or hillocks are seen and these are not throughout the stretch of the land. It was after a lapse of 15 years, site inspection took place and the same cannot be relied on to come to a firm conclusion that the entire land is non-cultivable lands. The report in 1960 submitted by the subordinate Revenue Officials clearly indicate that was a ryoti land and that it was capable of cultivation. It cannot be said that any information was suppressed. The authorities themselves inspected the site with reference to the revenue records and furnished the information in Appendix. Therefore, the situation of the site as available on the date of the confirmation of the patta is to be taken into consideration. The land was admittedly kept fallow for various reasons and the lands were, not developed for the reason that they were under the land acquisition. There was every possibility of changes in the surface and soil of the land. Therefore, basing totally on the report of Mr. Sinha and finding that it was a rocky land with ravines and stream-cuts, it would be unsafe to come to a conclusion that the fraud was played and misrepresentation was made. The question of misrepresentation by the beneficiaries would not arise at this information was available with the Revenue Officials themselves. It is not the case that the officials colluded with the beneficiaries for extraneous considerations...'

30. Nextly no mention was made in the Estate Abolition Act how to identify the nature of land. The Act deals with grant of ryotwari patta to the persons who are cultivating the land under Section 11 of the Act or to the landholder under Section 15 of the Act and the rest of the provisions deal with the consequences that flow after taking over the estate by the Government. To decide the nature of the land, we have to refer to the A.P. Estate Lands Act, 1908. Section 3 deals with the definition and Sub-section (15) defines ryot:

'...Ryot means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it.

Explanation :--A person who has occupied ryoti land for a conditions period of twelve years shall be deemed to be a ryot for all the purposes of this Act....'

31. From this it is seen that a person is considered to be ryot, if he is in possession of the land for a period of 12 years for the purpose of the Act whether any grant or lease is there in his favour or not. Sub-section (16) deals with the definition of ryoti land. It defines:

'...Ryoti land means cultivable land in an estate other than private land but does not include-

(a) beds and bunds of tanks and of supply, drainage, surplus or irrigation channels;

(b) threshing-floor, cattle sheds, village-sites and other lands situated in any estate which are set apart for the common use of the villagers;

(c) lands granted on service tenure either free of rent or on favourable rates of rent if granted after that date, so long as the service tenure subsists.

32. From the above, it is seen that the lands other than private lands, thrashing floor, cattle shed, village-sites or which are set apart for common use of the villagers have to be excluded from ryoti lands. Section 6 of the Act, deals with the occupancy rights in ryoti land and under Sub-section (4) thereof, when a landholder has reclaimed waste land by his own servants or hired labourers, he may, by contract in writing, prevent any person from acquiring a permanent right of occupancy in respect of the said land during a period of thirty years from the date of the first cultivation after reclamation.

33. From this, it is seen that even though the land is classified as waste land in the revenue accounts, it is always open to the landholder to get it reclaimed by his own servant or hired labourers and by contract in writing, can convert it into ryoti land and the person who converts, reclaims the waste land, is entitled to prevent from any person from acquiring a permanent right of occupancy atleast for a period of thirty years from the date of his first cultivation or reclamation.

34. In President of the Dist. Board, Tanjore v. Kannuswami Thondaman, AIR 1917 Mad. 765, while considering the ambit and scope of the Madras Land Act, which became A.P. Act after formation of Andhra Pradesh, held that the whole policy of the Act is in favour of raising presumption that a land in an estate is ryoti land. It is further held that Sub-section (4) of Section 6 is clearly confined to waste land which is admitted to be waste land other than ryoti land and which is sought to be brought under the head of ryoti land by reason of its temporary letting by the landlord for cultivation.

35. Mr. Justice B.P. Jeevan Reddi, as he then was, in K Ranga Reddy v. M. Venkatarami Reddy, 1980 (2) An.WR 332, while considering the scope and ambit of the Estate Abolition Act observed as under:

'...The changes that are brought about consequent on the issue of patta, leave unaffected the core of the title and the incidents of ownership enumerated above. Prior to the notification of the estate the common law, right of ownership was associated with a particular form of tenure i.e., tenure under the permanent settlement. When a tenure terminated as a result of the abolition of the estate the State became entitled to provide a different pattern for the mutual relationship between it and the subject who was entitled to a species of ownership de hors the Estate Land Act and without reference to the provisions of that Act. It is only to regulate the new pattern of relationship between the State and the owner in regard to the terms on which property is to be held, that Section 11 as also some other provisions of the Act had been devised. The issue of patta under Section 11 by the Settlement Officer is an integral part only of the convention of the tenure and does not impair the substantive right or title to property which may be decided as the ownership of the property....'

36. From these two decisions, it is seen that while there is presumption that all the lands in the Estate are ryoti land, the Estates Abolition Act is intended to regulate the new pattern of relationship between the State and the owner with regard to the terms on which the property is to be held.

37. Without looking into these aspects, it is not known how the Assistant Director reported that, a part of Sy.No. 461 on the northern side is communal poromboke land. At any rate, the Commissioner's order would not disclose any material for accepting the report of the Assistant Director in this regard. We have also perused the report dated 18.4.1966 of the Assistant Director. He simply stated that the yellow colour washed portion i.e., RS No. 161-B, 113, 114, 122 to 126, 127-B and 130/P has to be treated communal land in view of its description as parra or waste land in the recitals marked as Ex.D-12 and Jirayati Banker Para in Ex.A-8. There was no discussion by him on the contents of these; exhibits, but simply he made reference to those documents in his order. The document No. 647/44 (Ex.A-8) was filed to connect the present enjoyers to Muppidi Venkata Rao.

38. On behalf of Collector, the land register of 1908 ('D' Series Exhibit), a sketch prepared with reference to resurvey records (Ex.D-10), extract from Inam PWB of 1903 in respect of S.Nos. 6 and 14 of Cheepurupalli village (Ex.D-1 and D-12) have been filed. Perhaps Ex.D-12 deals with the Survey No. 14. Admittedly, the land covered by Sy. No. 396/1 and 396/2 (old Sy. Nos. ) forms part of patta No. 98. It is not known how the Assistant Director can place reliance on an extract from mam PWB for Sy. No. 14 of Cheepurupalli village, while considering the case of the plaintiff for grant of ryotwari patta for land in RS No. 461, covered by patta No. 98. Absolutely, there was no discussion either by the Commissioner or by the High Court on that aspect. Unfortunately, the civil Court is more carried away and obsessed with the fact that the records were tampered and dismissed the suit without going into these facts. Since We are sitting in appellate jurisdiction, we cannot embark upon and decide the issue whether the land shown in yellow colour in Sy. No. 461 on the northern side is communal poromboke land or not in the absence of any evidence whatsoever, one-way or the other. It is not known on what basis, the Assistant Director jumped at the conclusion. The fact remains that the Revenue Authorities themselves granted patta for 504 acres on 6.11.1958. As per the report of the Assistant Director, stating that the land covered by patta No. 98 is co-related to Sy. No. 461, but now the report of the Assistant Director shows that part of Sy. No. 461 along with lands in other Survey Numbers form part of patta No. 98 and the land on northern side of Sy. No. 461 does not form part of patta No. 98. Since there is conflict between these two findings, we have no option except to remand the matter and call for a report from the trial Court on this aspect. Accordingly, the Trial Court is directed to conduct an enquiry and submit a report on the following issues, after giving notice to all the concerned.

(1) Whether the land covered by patta No. 98 is situated in Sy. No. 461 only, as per the survey conducted in the year 1957 after the estate was taken over or the land covered by patta No. 98 extends over the land in Sy. No. 127P, 128, 129, 130/P, 446/P, 447 to 451, 459, 460, 461/P, 462, 463, 464, 467 to 479 of Cheepurupalli?

(2) Whether the lands on the northern portion of Sy. No. 461 are recorded as communal or village poromboke in the village accounts maintained by land holder and whether there is any evidence to support the report of the Assistant Director, Survey and Settlement?

(3) The total extent of land in Sy. No. 461 maintaining the same boundaries fixed in Survey operation that was conducted in 1912 between Cheepurupalli and Devada villages.

(4) Whether patta No. 98 can be co-related to Sy. No. 461 only and not other Survey Numbers as reported by the Assistant Director?

The Trial Court shall send its report within three months from the date of receipt of a copy of this order, if necessary by taking up the trial on day-to-day basis. Except deciding the extent of land covered by patta No. 98 and whether patta No. 98 can be co-related to Sy. No. 461 and to the extent of land for which plaintiffs are entitled for patta, all other issues are held in favour of the plaintiff. Final orders with regard to the extent of land for which the plaintiff is entitled for patta, will be passed after receipt of the report from the Trial Court.

39. Accordingly, the judgment and decree dated 6.2.1980 passed in OS No. 8 of 1979 by the Dist. Judge, Visakhapatnam is set aside and the appeal is allowed to the extent indicated. No order as to costs.

40. At this stage a doubt has arisen, the Court having pronounced the orders on merits, in the appeal, can call for a finding on facts and whether the decree can be drafted in the appeal as per Section 2(2) of the Code of Civil Procedure, 1908.

41. In Jagadish Chandra Bose v. Baijnath Shaw, : AIR1966Cal580 , the landlord filed suit for eviction of the tenant on the ground that the tenant failed to pay rent. After filing and during pendency of the suit, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force. The defendant having lost the suit, preferred an appeal before the Subordinate Court and the only question that arose for consideration was whether the defendant was entitled to protection under Section 14(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The learned Judge set aside the judgment and decree of the Court below and remanded the matter, by passing the following order;

'...Ordered that the appeal is allowed on contest. The judgment and decree of the learned trial Court is set aside. The case is send down to the lower Court on remand for passing necessary orders under Section 14(1) of the West Bengal Premises Rent Control Act of 1950 and disposing of the suit in accordance with law...'

42. The suit was ultimately decreed and the learned Single Judge of Calcultta High Court considered the scope of remand in Second Appeal No. 500 of 1955 and observed as under:

'... I have read the order carefully and I find that the appellate Court considered the question specifically whether the defendant was entitled to protection under Section 14(1) of the Act. The question whether the defendant is entitled to protection under Section 14(1) means whether he could be ejected if certain deposits were made in terms of Section 14(1) of the Act. The Subordinate Judge, therefore, decided that the tenant could not be ejected provided he deposited the amount as in Section 14(1) of the Act. The Subordinate Judge might have himself come to a finding as to what would be the amount of money but he did not come to any finding. He left it to be calculated by the trial Court, or in the other words, he determined the rights of the parties and directed the Trial Court to work it out. In that view of the matter, I must hold that the order of remand, though stated to be an order is a decree within the meaning of Section 2(2) of the Code of Civil Procedure...... and the words 'in accordance with law' could not be construed in such a way as to make the substantive order infructuous. I, therefore, find that the words in 'accordance with law' simply meant working out the order in terms of Section 14(1) of the Act.... Hence, the order of remand being in substance, a decree, was appealable as a decree....'

43. This view received the approval of a Bench in the Letters Patent Appeal in this case, in the following terms:

'...We fully agree with the view expressed by Chatterjee, J, as to the nature and effect of the remand order. Sri S. Sen Gupta, by his remand order really meant that the suit insofar as it related to the eviction of the defendant was to be dismissed on the defendant's depositing the amount found to be due by the trial Court under Section 14(1) of the Act....'

44. The effect of order of remand was considered by the Supreme Court in United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Ors., 2000 (6) Supreme 183, and held as under:

'...But, it is now well settled that an order of remand by the appellate Court to the trial Court which had disposed of the suit revives the suit in full except as to matters, if any, decided finally by the appellate Court. Once, the suit is revived, it must, in the eye of the law, be deemed to be pending - from me beginning when it was instituted. The judgment disposing of the suit, passed but the Single Judge, which is set aside gets effaced altogether and the continuity of the suit in the trial Court is restored, as matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise, serious questions as to limitation would arise. In fact, if any evidence was recorded before it earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded....'

45. From the above decisions, it can be seen that the Appellate Court is well within its competence to remand the matter to the trial Court for fresh consideration of some other issues. Hence, we feel that we are justified in calling for a report from the Trial Court on the issues specified above to pass final orders i.e., extent of the land for which the appellant is entitled to for the grant of patta under Section 11 of the Estates Abolition Act.

46. Post the case after receipt of the report from the Senior Civil Judge, Vizag for passing orders as regard to the extent of the land for which patta has to be granted to the appellants.