Dhullpalla Ramayya and another vs Kota Brahmayya and others

Krishna Rao, J.—This revision is directed against the finding of the Additional District Munsif, Nellore on a preliminary issue in O.S. 412 of 1951 on his file, by which he negatived the 1st defendant''s contention that the Civil Court has no jurisdiction to try the suit. The 1st respondent-plaintiff brought the suit for partition and recovery of possession of his one-third share in the plaint lands and for other incidental reliefs. His case is that he and defendants 1 to 5 are joint shrotriamdars of Kuricherlapad, shrotrium, that he owns 4-12th share in the shrotrium, that the 1st defendant is entitled to l/12th share and the defendants 2 and 3 to 4/12th share and defendants 4 and 5 to the remaining 3/12th share, that the two items of plaint lands consisting of survey Nos. 160 and 181 were ''anadhinam'' lands, that S. No. 100 was progressively re-claimed at She Joint expense of all the shrotriumdars between 1940 and 1949 and that Survey No. 161 was similarly re-claimed, by all of them between 1945 and 949.

Although the lands were jointly owned and enjoyed by them, the 1st defendant began to assert exclusive title and possession in himself in respect of both the lands on the ground that he had been let into possession and cultivated them as a ryot. He filed two suits against his co-shrotriumdars and their lessees for recovery of possession under S. 9 of the Specific Relief Act; O.S. No. 611 of 1949 in respect of a portion measuring Ac. 3-16 cents in S. No. 160 and O. S. No. 608 of 1949 In respect of the entire Survey No. 161. These suits were decreed on 28-11-1950 and the 1st defendant has been subsequently trying to get possession of the entire Survey Nos. 160 and 161. On these allegations the plaintiff claimed partition and recovery of possession of his share in the lands.

The 1st defendant in his written statement denied that he was a co-owner along with the plaintiff and defendants 2 to 5 and contended that he had become solely entitled to occupancy rights as a ryot in respect of the lands. He contended further that the Court of the District Munsif had no jurisdiction to try the suit. This intention was founded on the fact that the inam state of Kuricherlapad shrotrium was taken over by the Government on 1-10-1951 under the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948. His position was that only the special forums set up by the Act had Jurisdiction to try the subject-matter of the suit. 2. Sri M.S. Ramachandra Rao, the learned counsel for the petitioner, argued that the plaintiffs case is that the suit lands are private lands and that the dispute in the suit resolves itself to a determination of the question whether the suit lands are private lands or ryoti lands. But he has been unable to show how on the plaint allegations, the suit lands can possibly be said to be private lands, as defined in S. 3 (10) of the Madras Estates Land Act, cl. (b) of which is the relevant clause. According to the plaint, they were merely ''Anadhinam'' or ''unoccupied'' lands which were brought under cultivation between 1940 and 1949.

The expression ''anadhlnam'' does not imply that it is domain or home-farm land of the landholder and therefore private land-Gopalaswamy Ayyangar v. Athamanathaswami Dev. 1957-1 Mad LJ 104 (A). It merely means unoccupied land and the plaint allegations are in effect that the suit lands were cultivated lands which were brought under cultivation by the landholders between 1940 and 1949. The plaint allegations do not bring them within any of the categories of private land set out in S. 3 (10) (b). It follows that they would be ryoti lands within the meaning of s. 3 (16). On the plaint allegations, the joint shrotriumdars would be entitled to a ryot wari patta in respect of the lands under S. 18 (b) (III) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948.

The defence of the 1st defendant is in effect that he is entitled to a ryotwarl patta under S. 11 of that Act. The question is whether on account of this dispute which arises from the contentions of the 1st defendant, the Civil Court is deprived of the jurisdiction under the provisions of Act 26 of 1948.

Sri M. S. Ramachandra Rao points out that under S. 3 (d) of Act 26 of 1948 the entire estate has vested in the Government and contends that persons Claiming possession of lands in such an estate have to obtain a ryotwari patta from the Government, under one or the other of Ss. 11 to 14 of the Act, before they can assert any rights to the lands. I am unable to agree with this contention. No doubt under cl. (d) of S. 3 of Act 26 of 1948 the consequence of the notification is that the Government becomes entitled to take possession of the estate. But this is subject to the proviso that the Government shall not dispossess any person of any land in respect of which he appears entitled to a ryotwari patta until the question is decided by the special forums set up by the Act.

In other words, the right of possession and the rights incidental to possession of persons who might be entitled to a ryotwari patta in respect of the land are not taken away but are preserved by the Act. This situation is emphasised by S. 64 which provides that the rights of owners and occupiers of lands will not be affected by temporary discontinuance of possession or occupation immediately before the notified date. If the special forums set up under the Act finally decide that the person is not entitled to a ryotwari patta the restriction in the proviso to S. 3 (d) ceases to have effect and the Government becomes entitled to dispossess him.

But this cannot be construed to mean that everybody can dispossess him meanwhile and that he is deprived of all his rights flowing from possession, until he obtains a ryotwari patta; of course the right to obtain a ryotwari patta can be enforced only before the special forums set up under the Act and that relief cannot, directly or Indirectly be sought elsewhere. But there is nothing in the Act to show that until the ryotwari patta is obtained, all reliefs in respect of other rights flowing from possession are taken away and cannot be claimed in the ordinary Civil Courts.

The next submission of Sri M. S. Ramachandra Rao is that under S. 15 of Act 26 of 1948 the Settlement Officer is charged with the duty of examining the nature and history of all the lands in respect of which the landholder claims a ryotwari patta under Ss. 12, 13 and 14 and of deciding in respect of which lands the claim should be allowed. He contends that the jurisdiction of Civil Courts is impliedly barred in respect of such lands when the claim involves, as here, the grant of a ryotwari patta under S. 13.

It is well settled that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. AIR 1940 105 (Privy Council) Section 15 of Act 26 of 1948 must be read along with S. 3 (d) from which it appears that the purpose of deciding whether a ryotwari patta should be granted is to determine whether the Government may take possession of the land. If the relief sought does not bear oft the Government''s right to take possession it cannot be said that the jurisdiction of the Civil Courts is impliedly barred.

The learned counsel strongly relies on the decision in State of Madras v. Swaminathan, 1955-2 Mad LJ 178 (C). There a suit was filed by the plaintiff against the Government for declaration that certain lands registered as tank bed lands were the plaintiff''s ryoti lands and for a permanent injunction restraining the Government from interfering with his enjoyment. It was held that the plaintiff really wanted a ryotwari patta and therefore he was not entitled to file a suit for declaration in a Civil Court and that the plaintiffs remedy was by way of an application under S. 11 before the Settlement Officer.

This decision has no bearing because the plaintiff here has not brought the suit with the object of obtaining a ryotwari patta from the Government. He is merely seeking to enforce his right as against an alleged co-sharer of the plaintiff''s lands. No doubt if the plaintiff and his co-sharers are ultimately found to be entitled to a ryotwari patta the Government would be able to dispossess them of the lands and the reliefs sought in the suit would be illusory and ineffective. But even if they are ultimately found to be entitled to a ryotwari patta the special forums under the Act would not be able to give them the reliefs of partition and possession claimed in the suit.

It is well settled that when the special forums cannot grant the relief, the jurisdiction of the Civil Court is not barred Parmeshari Vs. Krishna Kumar, and Swaminatha Odayar and Others Vs. Asan Muhammad Rowther and Another, Hence there is no substance in the contention that S. 15 operates to oust the Civil Court''s jurisdiction.

Sri M. S. Ramachandrarao finally called in aid S. 56 (1) of the Act 26 of 1948 which provides that after the notification of an estate when a dispute arises as to who is the lawful ryot in respect of any holding the dispute shall be decided by the Settlement Officer. A ''holding'' means a parcel or parcels of land held under a single patta or engagement in a single village Section 3 (3) of the Madras Estates Land Act. No doubt the 1st defendant appears to claim that the suit lands constitute a holding in respect of which he is lawful ryot. But the plaintiff''s case is that the suit lands are not a holding at all, but have been in the possession and enjoyment of the joint landholders.

Neither the gist nor the form of the dispute relates to the question who is a lawful ryot of a holding and the dispute does not therefore come within S. 56.

The preliminary finding of the District Munsif that he has jurisdiction to try the suit is right. This revision petition is dismissed with costs.