TMI Blog1968 (10) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... and mesne profits is exclusively within the jurisdiction of a civil Court to decide. In our view, a perusal of the plaint would show that the question referred is incidental to the main question relating to the title of the suit properties. 2. The plaintiff had filed the suit on 25-4-1959 for recovery of the plaint schedule lands situate in kunchanapalli Mokhasa in Tadepalligudem in West Godavari District, which is admittedly an under tenure estate, claiming that she has occupancy rights therein and that the 2nd defendant even though he was a tenant for a short while, has no manner of right therein. The second defendant on the other hand, averred that he has occupancy rights in the suit lands as per the provisions of the Madras Estates Land Act (1 of 1908) and that no one else has got any right to dispute his rights. He further averred that the question whether the plaintiff has the right or not is to be determined by the Settlement Officer under Section 56 of the Abolition Act and that the Civil Court has no jurisdiction to decide that question. 3. The issues as framed required a determination as to whether the plaintiff and her predecessors-in-title own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a), (b) or (c) enumerated in the section, it is only the Settlement Officer that can decide that dispute. 6. Sri Veerabhadrayya for the appellants contends that inasmuch as an appeal is a continuation of the suit and the dispute is one which has not been finally decided, though the suit was filed prior to the notification, the dispute must be held to arise subsequent to the notification. 7. Before we deal with the several decisions referred to us by the learned Advocates for the appellants and the respondents it will be profitable to examine the language of the section itself and the other provisions relating thereto. it may be stated that before the Abolition Act, whether any rent due for any fasli year is in arrears or what amount of rent is in arrears, had to be determined under Section 77 of the Madras Estates Land Act, which provided that subject to the provision contained in that Act, a landholder shall be entitled to recover any arrears of rent by a suit before the Collector, by distraint and sale of movable property or by sale of a ryot's holding. As to when rent becomes an arrears, is stated in Section 60 of the said Estates Land Act, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being notified it cannot be said that the dispute arises again subsequently at any other time. Where however a dispute arises and continues without any steps being taken for its adjudication,--because all disputes must ultimately culminate in steps being taken for their adjudication-the dispute will be deemed to continue and arise only when such steps are taken . The object of Section 56, as we have said earlier, is to prescribe an authority to settle a dispute of the kind referred to therein; and a dispute that is not already seized by some authority cannot already seized by some authority cannot be said to 'arise', and will arise only when steps are taken for having it adjudicated. In that sense, though a dispute may arise earlier, in fact it arises only when one person avers before a competent tribunal and the other denies it. We are, therefore clear in our minds that where a dispute arises for the first time for adjudication after the notification, it is said to 'arise within the meaning of Section 56(1) of the Abolition Act. In that Sub-section, the Legislature has clearly indicated this intention when it provided that where 'a dispute' arises after the est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmly established in English jurisprudence and the decision is accepted as sound and cited with approval in leading text-books and that the same has been followed and applied in numerous decisions in England and India and its authority has not been questioned by any of the learned counsel appearing before them. A few sentences in the observations of their Lordships of the Privy Council in the Colonial Sugar Co.'s case 1905 AC 369, will bear repetition: To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. 11. None of the decisions to which we have been referred by the learned advocates militates against these basic principles. In fact, those cases are easily distinguishable on facts and we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the dispute is difference which exists only until it is settled for the contention that a dispute exists until it is finally decided by the ultimate appellate Court, because that alone can be a binding adjudication; as such it is said to arise on the date when the estate is notified. We do not think that the learned Judge intended his observations to be construed in that manner. Even if he did, with great respect, we are unable to subscribe to that view as arising on a plain interpretation of Section 56(1), nor do we think that the question which is before us fell for decision in that case, where the petitions for pattas were filed before the settlement Officer after the estate was notified and though the Settlement Officer granted the pattas, the Estates Abolition Tribunal held that the Settlement officer had no jurisdiction because the dispute in respect of that matter had arisen prior to the notification. It is obvious that the Tribunal was clearly wrong in holding that the Settlement Officer had no jurisdiction because dispute between ryots as to who is the lawful ryot arose before the notification of the estate. The dispute as to whether pattas should be granted to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as be heard , to originate , be born , and come into notice , thought that the expression can only mean disputes born or disputes originating after the estate is notified , i.e., disputes which, are raised for the first time after the notification. The learned judge further observed: If it was the intention of the legislature to cover and to include disputes already in existence on the date of the notification of the estate, it would have made its intention clear in unambiguous terms by providing for pending disputes also. it is well-settled rule of law that jurisdiction of Civil Courts can be taken away. In our opinion, therefore Section 56 has not the effect of depriving Civil Courts of their jurisdiction to decide questions relating to occupancy rights in respect of a holding in an estate already pending before them and, therefore, cannot have any application to the present case. 12. The case of Paidi Peda Appanna V. Mecherla Srirammmurthy (1958) 1 An WR 420, also is of no assistance, because in that case the estate was notified on 7-9-1950 and the suit was filed in the Sub-Court on 6-4-1951 when clearly it had no jurisdiction and the Bench con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding before the trial Court or if it was adjudicated, was the subject-matter of an appeal, which was either filed before the said date or subsequent thereto; nor are there any observations which can be construed as divesting the Civil Courts of their jurisdiction in respect of the said proceedings. 15. Sri Veerabhadrayya, however, contends that the effect of a postponing clause such as Section 1(4) of the Abolition Act. Where under Section 56(1) along with other sections not specified in the sub-section came into operation on the date when the estate was notified, was to give it a retrospective effect. In support of this propositions, he has cited a passage, from Craies On Statute Law, 6th Edition, page 392, but this passage itself throws great doubt on such a proposition. it is observed by the learned author: A postponement clause in an Act has been sometimes said to be an indication against the presumption that a retrospective intent is not to be inferred . Wright, J. in Re. Athlunney (1898) 2 QB 547 cited in support of these observations, said: one exception to the general rule has sometimes been suggested, viz., that where as here, (Section 23 of the Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule lands after ejecting the defendants therefrom for recovery of ₹ 300/- towards past profits for three years and also for future profits. The plaint schedule land is situate within the Modhasa agaraharma of Kunchanapalli, West Godavari District. One jaddu Subbayya purchased an extent of Ac. 70-00 of land in the said Agraharam by a deed of Sale. Ex. A-1 dated 18-2-1907, that is, before the passing of the Madras Estates Land Act, from the Mokhasadar out of the property thus acquired, Subbayya retained Ac. 35-00 and sold away the rest to the father of the second defendant. In a division of the property between the sons of Subbayya, the plaintiff's husband, who was one of the two sons, got the suit property of Ac. 17-50 cents for his share. The second defendant who was admittedly a tenant of the plaintiff refused to vacate the land after the expiry of his lease in 1947. The plaintiff came to know that defendants 1,3, and 4 began to set up rights under the second defendant. Hence, the plaintiff filed the present suit for recovery of possession on 25-4-1959. 20. The second defendant was adjudicated insolvent in I. P. 11 of 1955. The Official Receiver in whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and Conversion into Ryotwari) Act (26 of 1948) applies to a case where the dispute contemplated by that section arose before the notification. A Full Bench consisting of Jaganmohan Reddi, C. J., Parthasarathi and K. Ramachandra Rao, JJ. gave its opinion dated 16-9-1968 holding that Section 56 of the Act cannot have retrospective operation and that a civil Court cannot be divested of its jurisdiction when it is already seized of jurisdiction to decide matters contemplated by Section 56 of the Act. Subsequently, the appeal was again posted before us for disposal on merits. It is however, necessary for us to clarify, that in the instant case where the plaintiff sued for recovery of possession and profits, the preponderance of authority in this Court as well as in the Madras High Court is that even after abolition of an estate, the civil Court has jurisdiction to entertain a suit for such reliefs which cannot be given by the Settlement Officer under Section 56 of the Act and that the questions contemplated by Section 56 of the Act can be incidentally decided by the Civil Court. In the present case, even if the suit had been brought subsequent to the notification, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deal with the correctness of the said decision, relied upon by the learned counsel for the appellant. Before referring to the decisions relating to this question, it is necessary to set out the relevant provisions in the Estates Abolition Act (19480 in order to appreciate the argument. Section 1(4) is as follows; This section and Sections 2, 4, 5, 7, 8, 9, 58-A, 62, 67 and 68 shall come into force at once; and the rest of this Act shall come into force in regard to any zamindari under-tenure or inam estate, on such dates Government may, by notification, appoint. Section 3. With effect on and from the notified date and save as otherwise expressly provided in this Act- (a) X X X X (b) The entire estate (including minor inams (post-settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate, all communal lands and porombokes; other non-ryoti lands, waste lands, pasture lands, lanka lands forests, mines and minerals, quarries, rivers and streams; tanks and irrigation works, fisheries and ferries), shall stand transferred to the Government and vest in them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, quarries, fisheries or ferries the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government. Provided....................... S. 64. Where a person-- (a) is entitled to the ownership or to the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived of his right to the occupation thereof; and (b) has not on that date lost his right to recover possession or occupation of such land or building; he shall, for the purposes of this Act and subject to the provisions thereof, be deemed to be the owner, or to be in possession or occupation, of such land or building; Provided that any lawful transferee of the right to the possession or occupation of such land or building shall, save as otherwise expressly provided in this Act, continue to have the same rights against his transferor, as he had immediately before the notified date; Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that the Government shall not dispossess the persons until their claims are adjudicated upon by the tribunals. In other cases, that is, where the parties have not applied for pattas, it follows on a reasonable interpretation of the proviso that the Government should take suo motu proceedings to consider whether a person is prima facie entitled to a patta or not. Unless the Government decides the said question either in such proceedings taken suo motu or in the proceedings started on the application of the parties no person in actual possession or entitled to such possession, will be deprived of his rights by the Government. Therefore until the claims of the persons in actual possession are entitled to continue as before, even after the notified date. The object of vesting the property in the Government is to enable the Government, firstly, to issue pattas in favour of persons entitled to such pattas and in all other cases to assign the land, to whomsoever the Government desires as the owner of the property. The estate having vested in the Government, it is the Government alone that can take proceedings to take possession of the property after evicting person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar person if he is not entitled to a Ryotwari patta. Such a right to protect one's possession is based upon the general principle that a person in possession of principle that a person in possession of the property even without title can always protect his rights by suing either for recovery of possession or for an injunction as against a trespasser as his previous possession is always good against everybody in the world except the real owner, vide Narayana Rao V. Dharmachari ILR Mad 514. If the contention of the appellant's learned counsel, namely, that until a patta is obtained, the ryot or landholder cannot sue before a Court to protect his possession, it would result in dangerous consequences opening a wide door for persons to take law into their own hands and disturb persons already n peaceful possession of properties. 26. We will now refer to the decided cases on the point. In Rama Rao V. State of Andhra (1956) AnWR 725 Satvanarayana Raju, J. (as he then was) sitting alone, held that so long as the claim for a Ryotwari patta is pending before the Settlement Officer and on appeal before the Tribunal, it is not possible to say that the persons already in po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session and enjoyment until dispossessed by the Government. On a consideration of the relevant provisions of the Act the learned Judge held that even if the position of the plaintiffs be equated with that of a mere possessory owner on account of the vesting of the estate by reason of the notification, the plaintiffs in that capacity as well can claim back the property which they were wrongfully deprived of by any person other than the true owner. 30. In A.K. Sastrulu V. Uttandimatta Swamuluvaru, (1964) 1 ALT 292, a Division bench of this Court consisting of Chandra Reddy, C.J., and Gopalakrishnan Nair, J. repelled a similar contention and held after considering the provisions of Section 3 and the proviso thereto and Section 64 of the Estates Abolition Act as follows:----- The effect of this section is that the respondent shall be deemed to be in possession of the lands notwithstanding the temporary dispossession of the lands by the appellants. What then is the result of these two section? Could it be posited that notwithstanding these two provisions the appellant could continue in possession of the land which he obtained by trespassing on them? If the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any way whittle down the absolute vesting the title in the Government or create any title in the party in possession of the property. Further, the learned Judge was not prepared to call in aid the provisions of Section 64 as they related only to land and buildings and not to trees. In view of the foregoing preponderance of authority, we are of the opinion with great respect that the decision of Basi Reddy, J. is not correct. Applying the principles stated above, the person who is in actual enjoyment of the trees as well as the land can always maintain an action against the wrongful acts of mischief committed on his land by strangers by way of cutting the trees, etc., and such a right is undoubtedly based upon his possessory title and it his no defence for the wrong-doer to say that the quondum owner of the trees has no right to protest and that is only the Government that can raise the objection. We are therefore, constrained to overrule the above decision of Basi Reddy, J. In this connection we cannot avoid observing that none of the previous decisions of this court was brought to the notice of the learned Judge. 33. The second case relied upon by the appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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