WP/6172/1996 of Anumanchipalli Chinnayya, Vs The District Judge AND Estates Abolition Tribunal, on 30 December 2005

ORAL ORDER:

The case of the petitioners is that Ac.3.32 cents of wetland in S.No. 305/2,Ac.1.69 cents of dry land in S.No. 261/3 and Ac.2.10 cents of mango tope inS.No. 270/9 of Pathapatnam village was given to their ancestors by theZamindar of Parlakamidi under patta No. 268 and after the coming into force ofthe A.P. (Andhra Area) Estates Abolition and Conversion into Ryotwari Act,1948 (‘the Act’) a rough patta in respect of the said land was also given tothem. Since officials of the Hindu Religious and Charitable Institutions aretrying to put those lands to auction, on an assumption that those lands belongto Neelamani Durga Temple (third respondent), they filed a petition before theSettlement Officer (second respondent) under Section 56(1) of the Act seekingpatta in respect of those lands, Commissioner HR & CE Department,Hyderabad (Fourth respondent) who also was made one of the parties to thoseproceedings contested the petition alleging that the said land belongs to thethird respondent temple. In support of their case, petitioners examined thirdpetitioner as P.W.1 and marked Exs. P1 to P10. In support of the case of thethird respondent, R.W.1 to R.W.4 were examined and Exs. R1 to R17 weremarked. Second respondent by his order dated 30-05-1989 dismissed thepetition. Questioning the said order of dismissal, petitioners filed T.A.S. No. 6of 1989. Ninth respondent and others filed T.A.S. No. 7 of 1989 before theappellate authority under the Act i.e. the District Judge-cum-Estates AbolitionTribunal, Srikakulam (First respondent), who, by his common order dated 26-12-1995, dismissed both the appeals. This petition is filed questioning thedismissal of T.A.S. No. 6 of 1989. It is represented that the order of dismissalof TAS No. 7 of 1989 is not challenged.

2. The contention of the learned counsel for the petitioners is that failure ofrespondents 1 and 2 to consider the evidence on record that the land is beingcultivated continuously from the time of the ancestors of the petitioners and thepetitioners have been cultivating the land in their own right from several

decades prior to coming into force of the Act, and that they themselves haveconstructed the third respondent-temple with their own funds, and were actingas trustees and Pujarees thereof, and had objected to the appointment oftrustees by the fourth respondent to the third respondent temple, whereuponfourth respondent, through Board order No. 5189 dated 15-10-1940 (Ex.P7)vacated the order passed by him earlier on the ground that third respondenttemple was declared as ‘excepted’ one by the board order No. 4268 dated 08-04-1940, resulted in an erroneous dismissal of the petition of the petitioners. Itis his contention that since the ancestors of the petitioners were the trusteesand archakas and were paying rents to the zamindars prior to the coming intoforce of the Act and later after coming into force of the Act were paying taxes tothe government in their own right as seen from Ex.P1 and P2, and since arough patta (Ex.P9) was also issued in the name of first petitioner, the orderimpugned is unsustainable. It is his contention though petitioners filed O.S. No.28 of 1983 on the file of Vacation Civil Judge, Srikakulam, which was latertransmitted to the Court of District Munisif at Pathapatnam and wasrenumbered as O.S.No.37 of 1983, they had withdrawn the said suit aftercoming to know that Civil Court does not have jurisdiction to decide thequestion relating to patta, in view of the ratio in Annamreddi Bodayya andanother Vs. Lokanarapu Ramaswamy. It is his contention that respondents 1and 2 were error in holding that the claim of the petitioners is barred by time asno time limit is prescribed for filing a petition before the second respondentunder the Act as held by this Court in Karri Rama Murthy Vs. AdimallaNagamma and reiterated in Penta Appala Naidu Vs. The Government of A.P.It is his contention that though second respondent rightly held that Ex.P3proceedings issued by the Manager of the Zamindar relate to the applicationfiled by T.Suryanarayana, first respondent erroneously held that the petitionersthrough Ex.P3 were directed to approach the Civil Court. It is his contentionthat first respondent’s failure to consider I.A. No. 217 of 1995 in T.A.S. No. 6 of1989, seeking leave to adduce additional evidence by marking the award in OPNo. 13 of 1987 on the file of the Court of the Principal Subordinate Judge,Srikakulam, filed under Section 31 of the Land Acquisition Act, and theenjoyment register maintained by erstwhile zamindars of Parlakamidi, whichare also available in the record resulted in an erroneous order being passed bythe first respondent.

3. The contention of the learned counsel for the third respondent is since a plainreading of the preamble and Section 56 of the Act, read with Section 2(1) andSection 3(15) and (16) of The Andhra Pradesh (Andhra Area) Estates Land Act,1908 (hereinafter referred to as ‘the 1908 Act’) shows that petition in the naturefiled by the petitioners before the second respondent are not maintainablebecause petitioners claim ownership rights but not tenancy rights. It is hiscontention that since petitioners were acting in a fiduciary capacity whiledischarging the duties of trustees and pujarees of third respondent temple,which was declared a public temple in 1974, to which a Board of trustees wasconstituted in 1976, and the lands endowed to it were put to auction in whichthe first petitioner figured as the highest bidder and cultivated the lands aslessee of the third respondent, they cannot now turn round and set up a rightadverse to the third respondent, after having cultivated it as a tenant as highestbidder in the public auction. It is his contention that petitioners filed anapplication before the second respondent only to continue in possession of theproperty being claimed by them, after coming to know that the executive officerof the third respondent temple, after the expiry of the lease granted to the firstrespondent, was contemplating to lease them out through private negotiationsto another person. It is also his contention that the documents produced by thepetitioners along with I.A.217 of 1995 in TAS No. 6 of 1989 do not help thepetitioners, as the appeal preferred against the award in OP No.13 of 1987 wasdisposed of with an observation that the rights of the parties would be subjectto the final orders to be passed by this Court in this petition, and since theenjoyment register maintained by the zamindar relating to the lands claimed bythe petitioners, which was marked as Ex.B18 in OP No.13 of 1987 describesthe persons in enjoyment as ‘Sri Neelamani Durga Archakulu AnumanchipalliThavudu E.Adinarayana, E.Chittibabu, E.Chinnaiah, ThonangiKumara Swamy’

With regard to Ex.P3, it is his contention that since it relates to S.Nos. 95/2,149/4 and 151/3, but not to the lands being claimed by the petitioners which arein

S. Nos. 270/9 corresponding to old S.No. 270/8, 305/2 and 261/3 as disclosedfrom the order of the second respondent, the said document is of ho help to decide the petition of the petitioners, first respondent’s misconstruing Ex.P3 isof no consequence. With regard to Ex.P9 (rough patta) it is his contention thatsince rough patta is but a notice calling for objection with regard to the detailsgiven therein, and is not a document of title, as held by a Division Bench of thisCourt in R.Elumalai Chetty vs. R.Rathnavelu Chetty, it does not create anyright in favour of the petitioners and contended that merely because of theypaid rents to the zamindars prior to coming into force of the Act and thereafterto the Government subsequent to coming into force of the Act as evidenced byExs. P1 and P2, no inference can be drawn in their favour since they musthave made those payments as persons in management of the third respondenttemple, and relying on the following observations in Vadlamannaty BalaTripura Sundaramma vs. Secretary of State and others that “Where the grant is made to a person in the capacityof Mutavalli, manager, superintendent, dharmakartha, or evenservant of the mosque or temple, and where it does notappear that there is some other trustee, it may be regarded asa grant to the temple or mosque itself.’

he contended that in view of the evidence on record, it has to be taken that thelands being claimed by the petitioners were granted to the third respondentonly. He further contended that third respondent not approaching the secondrespondent for grant of patta is not of any consequence since petitioners whoadmittedly were managing its affairs at that time, in fact, should have takensteps in that regard and their failing to discharge their duty cannot be takenadvantage of by them, and in any event the land in dispute in this case cannotbe treated as a ‘ryoti land’ in view of Sec. 3(16) (c) of the Act, and sopetitioners are not entitled to any relief.

4. In reply, the contention of the learned counsel for the petitioners is that inview of the ratio in T. Munuswami Naidu VS. R.Venkata Reddi and others,the scope of inquiry under Section 56 of the Act is not limited to the mattersenumerated therein and extends beyond, including those covered by Section 11of the Act and so the jurisdiction of the second respondent to entertain thepetition of the petitioners under Section 56(1) cannot be doubted.

5. Assuming that the second respondent has jurisdiction to entertain theapplication of the petitioners without any time limit, and that second respondentonly, but not a Civil Court, has jurisdiction to decide the issue in this case, ascontended by the learned counsel for the petitioners, the point for considerationis who among the petitioners and third respondent is entitled to the land indispute.

6. Relevant portion of the Statement of Objects and Reasons of the Act reliedon by the learned counsel for the third respondent reads “………The zamindari system has perpetuated an assessment whichhas no relation to the productive capacity of the land. It has furtherled to loss of contact between the Government and the actualcultivator and has acted as a brake in regard to agriculturalimprovement. Most of the irrigation works in estates are in a state ofdisrepair. The complexities of the zamindari system have led to animmense volume of litigation. Many of the records in the offices ofzamindars are indifferently maintained and the peasantry, most ofwhom are illiterate, are at the mercy of unscrupulous agents.Zamindary administration has rarely, if ever, been as efficient asadministration in Government areas……..”

7. Section 56 of the Act reads

5 6 . Decision of certain disputes arising after an estate isnotified:

1. Where after an estate is notified, a dispute arises as to (a)whether any rent due from a ryot for any fasli year is inarrear or (b) what amount of rent is in arrear or (c) whothe lawful ryot in respect of any holding is, the disputeshall be decided by the settlement Officer.

2.

Any person deeming himself aggrieved by any decision ofthe Settlement Officer under Sub-Section (1) may,within two months from the date of the decision or suchfurther time as the Tribunal may in its discretion allow,appeal to the Tribunal; and its decision shall be finaland not be liable to be questioned in any Court of law.the Settlement Officer under Sub-Section (1) may,within two months from the date of the decision or suchfurther time as the Tribunal may in its discretion allow,appeal to the Tribunal; and its decision shall be finaland not be liable to be questioned in any Court of law.

Since ‘Ryot’ is not defined in the Act, and since Section 2(1) of the Act reads “All expressions defined in the Estates Land Act shall havethe same respective meanings as in that Act with themodifications, if any, made by this Act”

for construing the word ‘ryot’ used in Section 56 of the Act, definition of ‘ryot’ inSection 3(15) of the Act 1908 has to be taken into consideration, and it reads

‘Ryot’ means a person who holds for the purpose ofagriculture ryoti land in an estate on condition of paying to thelandholder the rent, which is legally due upon it.

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

‘ryoti land’ is defined in Section 3(16) of the Act 1908 as Means cultivable land in an estate other than private land but doesnot include-

a. beds and bunds of tanks and of supply, drainage surplus orirrigation channels;irrigation channels;

b. threshing-floor, cattle-stands, village-sites, and other landssituated in any estate, which are set apart for thecommon use of the villagers;situated in any estate, which are set apart for thecommon use of the villagers;

c. land granted on service tenure either free of rent or onfavourable rent if granted before the passing of this Actor free of rent if granted after that date, so long as theservice tenure subsists.favourable rent if granted before the passing of this Actor free of rent if granted after that date, so long as theservice tenure subsists.

8. In view of Section 3(16)(c) of the 1908 Act, since petitioners claim that theirancestors, and after them they are the archakas of the third respondent temple,they are in the nature of ‘service holders’. On what term and condition theywere rendering service is not known. If they were granted the land as serviceholder, they should have made an application for grant of patta immediatelyafter the coming into force of the Act. If the land is that of the temple, astrustees of the temple, they ought to have made an application under the Act forand on behalf of the temple. Obviously because the land that is being claimedby the petitioners was granted to the temple only, neither the predecessors ininterest of the petitioners nor petitioners might have made an application forpatta in their favour.

9. With regard to the contention of the learned counsel for the petitioners thatfirst respondent erred in not taking into consideration the petition I.A.No.214 of1995 for receipt of additional evidence, it has to be stated that the recordreceived from the first respondent shows that the said I.A. No. 214 of 1995 wasdismissed by a separate order on 26-12-1995 but was not heard with TAS No. 6of 1989, though that appeal also was disposed of on the same day. Since an application under Order 41 Rule 27 CPC has to be heard along with the appealand since that procedure was not adopted, I would like to take intoconsideration the documents sought to be relied on by the petitioner asadditional evidence in TAS No.6 of 1989 for deciding this case, negativing therequest of the learned counsel for the petitioners to remand the case to the firstrespondent, for fresh consideration taking into consideration those documentsalso.

10. Petitioners through I.A. 217 of 1995 sought to rely on the award in OP No.13 of 1987, and the ‘enjoyment register’ containing the entry relating to PattaNo. 268 maintained by the erstwhile zamindar of Parlakamidi. Since both thelearned counsel admitted that the order in OP No. 31 of 1987 was carried inappeal in A.S. No. 62 of 1990 and that by the order dated 16-02-1998 thelearned appellate Judge set aside the order of the reference Court and orderedthat the rights of the parties would be subject to the final orders to be passedby this Court in this petition, award in OP No. 13 of 1987 is of no help to thepetitioners to establish their claim.

11. The second document sought to be relied on by the petitioners is a Xeroxcopy of the ‘enjoyment register’ maintained by the erstwhile zamindar ofParlakamidi relating to Patta No. 268 the original of which was marked asEx.B18 in O.P. No. 13 of 1987 and it reads “Sree Neelamani Durga Archakulu Anumanchipalli Tavudu, E.AdinarayanaE.Chittibabu, E.Chinnayya, Tonangi Kumaraswamy”

In my considered opinion, the above said entry instead of supporting the caseof the petitioners, in fact fortifies the case of the third respondent, because hadthe petitioners, or their ancestors were the lessees of the Zamindar in theirindividual capacity, their names only would have been mentioned and there wasno need to mention the name of the deity ‘Neelamani Durga’ in the enjoymentregister. That entry should be taken to mean that the archakas of the deity Neelamani Durga are enjoying the land on behalf of the deity. Since thepresiding deity of the temple cannot itself pay the rents and since somebodyelse i.e. either the archakas or the trustees, have to act on its behalf and haveto pay the rent to the Zamindar on its behalf, the names of the archakas of thedeity must have been mentioned in the enjoyment register and so in view of theratio in Vadlamannaty Bala Tripura Sundaramma case (5 supra) it has to betaken that the land in fact was given to the deity, but not to the petitioners, whoare its archakas/trustees of that temple.

12. Ex.P7, which was passed when the Madras Hindu Religious EndowmentsAct 1927 (Act II of 1927) was in force, and which is strongly relied on by thelearned counsel for the petitioners, is of no help to the petitioners becauseSection defeines ‘excepted temple’ as and commentary in the book on that Act by P.Ramanatha Iyer, (published byThe Madras Law Journal in 1927) at page 81, there under which contains thereport of the Select Committee on ‘Excepted temple’ reads:

“We have decided to accord a privileged treatment to certain temples,which we have called ‘excepted temples’ and which are defined in S. 9(5)of the Bill. We have omitted the term ‘hereditary temples’ which was usedin the original Bill to describe temples, all or any of the trustees of whichare hereditary trustees. The term ‘excepted temples’ will exclude caseswhere even one of the trustees of a temple is non-hereditary. Evenamong temples in sole charge of hereditary trustees it will exclude caseswhere the hereditary character of the trusteeship came into being for thefirst time after 1842. The year 1842 has been chosen as that was theyear in which Government began abandoning their control over temples inpursuance of the orders of the Court of Directors directing severance ofconnection with all idolatrous institutions. When handing over theinstitutions which had previously had no hereditary trustees theGovernment started in certain cases a new line of hereditary trusteesafter 1842, and we consider that institutions in the sole charge of suchtrustees are not entitled to any privileged treatment. The trustees of mostof the ‘excepted temples’, on the other hand, are Zamindars and otherwealthy landholders or other persons who have made and, in somecases, continue to make voluntary contributions for their support. Theytake strong exception to control by local committees, and any alienation

of their sympathies is likely to affect prejudicially the pecuniary supportwhich the temples have received and are receiving at their hands.”

Inasmuch as the Zamindar of Parlakamidi is not made a party to theproceedings and since records relating to the estate of Parlakamidi are notcalled for, to establish whether the temple was constructed by Zamindar ofParlakamidi, or the ancestors of petitioners, as contended by the petitioners,and since the petitioners can have no personal knowledge about theconstruction of the temple, since they could not have been born by the date ofthe construction of the temple, how the temple came into existence and whoactually constructed the temple cannot be decided on the sole interestedtestimony of the first petitioner as P.W.1. Since the entry in the enjoymentregister, for the reasons mentioned above, has to be construed as a grant infavour of the temple, and since documentary evidence, that too, evidencecontained in old documents produced from proper custody, has to prevail overoral evidence, the contention of the petitioners that they were the grantees ofthe lands claimed by them cannot be accepted. In the above circumstances thefact that the third respondent temple was declared as an ‘excepted temple’under the Madras Hindu Religious Endowments Act 1927 does not fortify thecase of the petitioners.

13. If really the petitioners were in enjoyment of the aforesaid land in their ownright, they would have raised an objection for putting the leasehold rights inrespect of those lands to auction by the executive officer of the thirdrespondent and first petitioner and others would not have participated in thesaid auction. After having become a tenant of the lands of the third respondent,while continuing in possession of the said lands, first petitioner is estoppedfrom denying the title of the third respondent by virtue of Section 116 of theEvidence Act.

14. The contention of the petitioners that they are entitled to patta, inasmuch asa rough patta in favour of the first petitioner was granted cannot be acceptedbecause in R.Elumalai Chetty case (4 supra) relied on by the learned counselfor the third respondent it was held that rough patta is not a document of title.

15. There is ample evidence on record, both oral and documentary, that third respondent is exercising ownership rights over the land being claimed by thepetitioners. As stated earlier except the interested testimony of the firstpetitioner as P.W.1, there is no other evidence in favour of the petitioners.Ex.P16 proceedings of the auction conducted on 02-07-1976, in respect of landin S.No. 261/3, 260/3, 305/2 comprising of Ac.1-69 cents, Ac.1-70 cents andAc.3-30 cents respectively, shows that petitioners 1 and 2 participated in thatauction after making a deposit of the earnest money, and that the first petitioneroffered the highest bid of 12 bags, and that it was accepted. Ex.R14, fairadangal of Pathapatnam village shows that lands in S.No. 270/8 305/2, 261/3and 266/3 and 4 are mutated in the name of third respondent. The evidence ofR.W.1 clearly shows that first respondent after obtaining the lease, had withoutcultivating the land taken on lease by him, leased it out to fifth respondent,father of sixth respondent and K.Sanyasi and that those subtenants paid rent tothe third respondent. Respondents 1 and 2 participating in the auction, asstated earlier, clearly cuts at the root of their case. In the abovecircumstances, even if the petitioners were paying rent to the Zamindar as perEx.P1 receipts prior to coming into force of the Act, and tax to the governmentafter coming into force of the Act as per Ex.P2, it must be deemed that thosepayments were made only on behalf of the third respondent, more so becausepetitioners admittedly were the poojaries / trustees of the third respondent.

16. For the above reasons I find no merits in this writ petition and hence thesame is dismissed. No order as to costs.

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C.Y.SOMAYAJULU, J.

30-12-2005

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