YEJJIPURAPU APPADU AND OTHERS Vs. SAMBARA LAKSHAMINARAYANA AND OTHERS
LAWS(APH)-1971-10-17
HIGH COURT OF ANDHRA PRADESH
Decided on October 14,1971

Yejjipurapu Appadu And Others Appellant
VERSUS
Sambara Lakshaminarayana And Others Respondents

JUDGEMENT

K.V.L.NARSIMHAM, J. - (1.) The petitioners are the cultivators of the schedule lands situated at Nagallavasa, Vizianagaram taluk which became an estate after the amendment of the Madras Estates Land Act, 1936 and notified and taken over as an inam estate by the Government in the year 1959 under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, hereinafter referred as to "the Abolition Act." After taking over of the estate, the Assistant Settlement Officer, Srikakulam, under the provisions of section 15 of the Abolition Act, started a suo mo to enquiry. In that enquiry respondents 1 to 3 herein contended that the lands were their private lands and therefore they were entitled to a ryotwari patta under the provisions of section 13 of the Abolition Act. On behalf of the petitioners, it was contended that the lands were ryotwari lands and therefore the ryotwari patta should be made in their names under the provisions of section 11 of the said Act. The Assistant Settlement Officer after recording the oral evidence produced by both the parties and after a consideration of the documentary evidence produced on behalf of respondents 1 to 3, by his order dated 13th February 1963, held that the lands covered by schedule 'B' which are in dispute before us now, are the private lands of respondents 1 to 3 as defined in section 3(10)(b) of the Madras Estates Land Act, 1908. He accordingly allowed their claim under section 13(a) of the Abolition Act, The petitioners, aggrieved by the decision of the Assistant Settlement Officer, carried the matter in appeal to the Estates Abolition Tribunal (District Judge) at Vizag. The learned District Judge, by his order dated 14th November 1968 in T.A.S. No. 54 of 1963, dismissed the appeal and held that the lands in question are the private lands of respondents 1 to 3. Hence this writ petition by the petitioner.
(2.) At the outset, the learned counsel for the petitioners contended that there is a conflict between the judgment of this court as to the application of the Full Bench decision of the Madras High Court in Periannan v. A.S. Amman Kovil A.I.R. 1959 Mad 393 (F.B.) . The argument is that a Division Bench of this court consisting of Obul Reddi and Madhava Reddy, JJ, in writ appeal No. 17 of 1968 decided on 27th November 1969 held that the Full Bench decision of the Madras High Court is no longer good law after the decision of the Supreme Court in Chidambaram v. Santanramaswami A.I.R. 1968 S.C. 1005 whereas another Division Bench of this court consisting of Narasimham, J. (as he then was) and Parthasarathi, J., in Writ Appeals Nos. 93 of 1970 and batch decided on 20th November 1970 held that there was no incompatibility between the decisions of the Full Bench of the Madras High Court in Perianan's Case and the decision of the Supreme Court in Chidambaram's Case. In view of this conflict between the two decisions, the matter may be referred to a larger Bench for resolving the conflict. It was also brought to our notice that our learned brother, Obul Reddi, J., when another matter of this nature came up before him for consideration, referred the matter to a Division Bench observing that there was a conflict between the decisions in Writ Appeals Nos. 17 of 1968 and 93 of 1970 and batch. We have carefully gone through the judgments delivered in Writ Appeals Nos. 17 of 1968 and 93 of 1970 and batch and we do not find any conflict between the two decisions. In the first place, in the judgment in writ appeal No. 17 of 1968 no reference at all has been made to the Full Bench decision in Periannan's Case. The learned judges have confined themselves to the decision of the Supreme Court in Chidambaram's Case shows that in their opinion that decision had impliedly over-ruled the Full Bench decision in Periannan's Case. There is nothing in the judgment to show that the learned judges had taken that view of the matter. The learned counsel for both the parties confined themselves to the decision of the Supreme Court in Chindambaram's Case and the argument was limited to determine whether the tests laid down in Chindambarni's Case when applied, constitute the lands in question in that matter private lands. No argument was advanced on behalf of any of the learned counsel that even though the lands in question are not private lands in accordance with the tests laid down in Chidambaram's Cate they would be private lands if the tests laid down in the Full Bench decision in Periannan's case are applied. In the judgment in writ appeals Nos. 93 of 1970 and batch, the specific question considered was whether there was any incompatibility between the decision of the Supreme Court in Chidambaram's Case A.I.R. 1968 S.C. 1005 and Periannan's Case A.I.R. 1952 Mad. 323 (F.B.) and whether the Supreme Court had in any manner over-ruled the decision in Periannan's Case. The learned Judges held that there was no such incompatibility and the tests laid down in Periannan's Case are still good law. As pointed out, by us, the question as to the conflict between the Supreme Court's decision in Chidambaram's Case and the Full Bench decision in Periannan's Case was not raised Writ Appeal No. 17 of 1968 and we do not find that there is any conflict between the decisions of this court in Writ Appeals Nos. 17 of 1968 and 93 of 1970 and batch. Even otherwise, it is not necessary to refer to the case to a large Bench. Applying the tests laid down in Chidambaram's Case we are of the opinion that respondents 1 to 3 have proved that the schedule lands are private lands. It is, therefore, not necessary for us to determine the question whether Chidambaram's Case has impliedly over-ruled Periannan's Case.
(3.) In Chidambaram's Case the learned judges after referring to the definition of "private lands" in section 3(10)(b) of the Madras Estates Land Act of 1908 have observed that under that section private land comprise; of two categories, private lands technically, so-called, and lands deemed to be private land. The correct test to ascertain whether a land is domain or home-farm land, in their Lordships' opinion, was the one accepted by the Judicial committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya A.I.R. 1918 P.C. 182 the test being whether it is a land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he deems for a reason. Reference to the decision of the Privy Council is restricted to determine whether a particular land is domain or home-farm land of the landholder. Their Lordship then adverted to the other clauses of the definition, thereby meaning clauses (ii) (iii) and (iv) of section 3(10)(b) of the Estates Land Act, and laid down the law thus at page 1011: "The other clauses of the definition appear to deal with those lands which would necessarily be regarded as home-farm lands in the ordinary usage of the term and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for "private land" is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character: but it is the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them but on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.";


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