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Kopparan Venkatappa Chetty and ors. Vs. Udaysankar Royal Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSpecial Tribunal Appeal No. 2 of 1976
Judge
Reported inAIR1981AP34
ActsAndhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Sections 4, 4(1), 4(2), 51(1) and 62; Evidence Act, 1872 - Sections 32(3); Motor Vehicles Act - Sections 64
AppellantKopparan Venkatappa Chetty and ors.
RespondentUdaysankar Royal Varu and ors.
Appellant AdvocateE. Subrahamanyam, Adv.
Respondent AdvocateS.V. Sundara Rajan, Adv. and ;Y. Vasudeva Rao, Adv. for ;G.S.R. Anjaneyulu, Adv.
DispositionAppeal allowed
Excerpt:
.....to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant,..........were disposed of by a common order now under appeal.2. punganur estate, admittedly an important impartible estate, was notified in the year 1950 and was taken over in the year 1951 under the madras estates (abolition and conversion into ryolwari) act 1948 (hereinafter referred to as 'the act'). at that time, a dispute was raised that kothapalle village along with some other villages referred to as gumkonda group of villages was an inam estate and the said group of villages were not taken over. by an order dated 24-2-1951 the settlement officer held that those villages were not an inam estate within the meaning of the act. however, by virtue of the amendment effected by the amendment act of 1957 in the definition of 'inam estate' this group of villages also was deemed to have been.....
Judgment:

Madhava Reddy, J.

1. This appeal is directed against the order of the Estate Abolition Tribunal, Chittoor in O.P. No. 39 of 1965 rejecting the claim of the appellants herein for payment of compensation in respect of Kothapalle inam estate and awarding the same to the respondents herein, who were the petitioner? in O.P. No. 62 of 1965 on the file of the same Tribunal and who claimed that the said village, Kothappalle formed part of Punganur estate. The claims of both the parties, who had filed separate applications for payment of compensation, were disposed of by a common order now under appeal.

2. Punganur estate, admittedly an important impartible estate, was notified in the year 1950 and was taken over in the year 1951 under the Madras Estates (Abolition and Conversion into Ryolwari) Act 1948 (hereinafter referred to as 'the Act'). At that time, a dispute was raised that Kothapalle Village along with some other villages referred to as Gumkonda group of villages was an inam estate and the said group of villages were not taken over. By an order dated 24-2-1951 the Settlement Officer held that those villages were not an inam estate within the meaning of the Act. However, by virtue of the amendment effected by the Amendment Act of 1957 in the definition of 'inam estate' this group of villages also was deemed to have been taken over under the provisions of the said Act. Thereupon the appellants filed O.P. No. 39 of 1965 and the respondents filed O.P. No. 62 of 1965 claiming compensation.

3. It was the case of the appellants that this village originally granted as a police service inam was sold to then Zamindar somewhere in the year 1879 by the service holders. The Zamindar thereafter granted a 'takid' on 1-11-1921 to the appellants' predecessor-in-title, and the Zamindar's successor subsequently confirmed the said Takid. The said Takid is marked Ex. A-2. During the course of the proceedings before the Settlement Officer earlier in the year 1951 relating to Kothappalle village as to whether it is an inam estate or not, the then Zamindar give a statement the certified copy of which is marked Ex. A-3 in the present proceedings. In that, he has admitted the Takid Ex. A-2 having been issued in Favour of the appellant predecessor-in-title and also that these villages did not form part of the Zamindari and that it was a separate inam.

4. In the present enquiry, the two questions that were considered by the Tribunal to determine as to who among the rival claimants was entitled to receive the compensation were, (1) whether the village Kothapalie Inam Estate was part of Punganur Zamindari and (2) what are the rights of Rammaiah Chetty in terms of the Takid issued by the Zamindar of Punganur. On the first question while the appellants contended that Kothappslle village was not part of Punganur impartible estate, the respondents claimed that it was. On the second question posed for consideration, the appellants contended that in terms of the Takid Ex. A-2 issued by the respondents' predecessor-in-interest, the appellants were vested with absolute rights and were, therefore, entitled to the compensation while the respondents contended that the Takid is not proved and in any case that Takid did not amount to alienation of absolute rights by the then Zamindar in favour of the appellants' predecesaor-in-title and that in any event that the Raid alienation is void inasmuch as it was alienation of part of an impartible estate. 'The Tribunal held that Ex. A-3 certified copy of the previous statement purported to be that of the then Zamindar, the predecessor-in-interest of the present respondents was neither proved nor admissible in evidence. It did not give a categorical finding as to whether the Takid amounts to permanent grant in favour of tht1 appellants' predecessor-in-title nor did it give a finding as to whether it was a lease as contended by the respondents. Nonetheless it proceeded to hold that Punganur estate, admittedly being an impartible5 estate, the sale of any portion of that estate was void and any rights thereunder would not enure beyond the lifetime of the alienee under Ex. A-2 and as such the petitioners in O.P. No, 39 of 1965 who are the appellants herein 'can-not have any subsisting interest in the said Kothapalie Estate'. Accordingly, the Tribunal rejected the claim of the appellants, who are the petitioners in O.P. No. 39 of 1965 and allowed the claim of the respondents who are the petitioners in O.P. No. 62 of 1965. As against this judgment, the claimants-petitioner? in 6. P. No. 39 of 1965, who are the respondents in O.P. No. 62 of 1965, have preferred only one appeal.

5. Mr. S.V. Sundara Rajan, the learned counsel for the respondents, raised a preliminary objection that the appeal is preferred only against the Judgment in O.P. No. 39 of 1965 and no appeal has been preferred against the judgment in O.P. No. 62 of 1965 and as the judgment therein has become final, this appeal is not maintainable and any judgment rendered herein cannot affect the right to compensation accrued to the respondents by virtue of the order in O.P. No. 62 of 1965. It is common ground that in both these O.Ps. the parties had laid claim to compensation in respect of Kothapalle inam estate. The contentions raised by the parties in both these petitions are common and the decision of the Tribunal on the rival contentions one way or the other would entitle one of the parties, to claim compensation and consequently deprive the other of his right. The upholding of the right of the one claimant would automatically result in the rejection of the right of the other claimant. Thus, the decision to be rendered by the Tribunal was a common decision in both the O.Ps. That is why both the parties agreed to both the O. Ps. being taken up together far enquiry and decision and the Tribunal disposed of both the O.Ps. by a common order. Merely because two separate O.Pc. were filed, it cannot be held that there are two decisions rendered- By the decision rendered that the respondents are entitled to receive compensation for Kothapalie village the appellants are denied the right to claim compensation. If in this appeal, the appellants succeed automatically the respondents' right to claim compensation must be rejected.

Mr. Sundara Raj an, however, contends relying upon the decision of a Bench of this Court in P.A. Narayana v. E. Venkata Subbaiah, (1968) 2 An WR 185 that when two applications are filed before the Estates Abolition Tribunal for compensation even if they are disposed of by a common order they are in fact two decisions and two appeals have to be preferred. That was a case in which, of the two applications before the Estates Abolition Tribunal one was for determination of advance compensation and the other was for determination of final compensation. These two applications were no doubt disposed of by a common order. This court held that two separate appeals have to be filed. The principle upon which it was held that two separate appeals should be filed was stated to be that the appeal is against a decision and the decision on these two petitions were two separate decisions, one ' decision as to who is entitled to and what is the amount of advance compensation payable and the second decision is as to what is the amount of final compensation payable and who is entitled to receive the same. These are two distinct and separate decisions and as such two separate appeals have to be filed. Applying that test-in this case, we find that the direction to pay the compensation to the respondents proceeds upon the common decision, namely, that Kothapalle village is part of Punganur impartible estate and that the Takid does not vest any right in the appellants. If that decision is reversed, then automatically the appellants would be entitled to receive the compensation and consequently the respondents cannot be awarded any compensation. It cannot be said that in spite of the appellants succeeding in their appeal the decision in O.P. No. 62 of 1965 can stand for there is no separate decision which entitles the respondents to receive compensation irrespective of the result of O.P. No. 39 of 1965.

The decision in O.P. 39 of 1965, being the subject matter of this appeal, it must be held that the decision in O.P. No. 62 of 1965 also is the subject matter of this appeal and the decision in the appeal will automatically cover the decision in O.P. No. 62 of 1965. We are fortified in this view by a judgment of the Supreme Court in Ram Gopal v. Anant Prasad, : AIR1959SC851 wherein a somewhat similar contention came up for consideration under Section 64 (a) of the Motor Vehicles Act. In that case two applications in respect of the same permit were filed, one of which was by way of renewal to which objections were filed and the other was fresh application and when an order granting renewal of the permit was made, the Supreme Court held that the order automatically amounted to refusing to grant permit to the person making the fresh application and that person was an aggrieved person. Upon a single appeal being filed by the said aggrieved person, an objection was taken that in the appeal against the order refusing the grant of permit what all can be considered is whether he should be granted the permit, but not the question whether the renewal granted in favour of the applicant was valid. The Supreme Court he]d that :

'If an appeal lies under any of the other clauses (of Section 64 of the Motor Vehicles Act), that of course must be an effective appeal and the appellate authority must therefore have all powers to give relief to which the appellant is found entitled ............... .The relief that can be granted in an appeal by any person which is competent would not depend on whether he had put in objections against the applications of the competing applicants or not. We do not therefore think that clause (f) Section 64 in any way restricts the power of the appellate tribunal to grant all proper reliefs in an appeal competent under clause (a) of the Section'.

6. In that view, the Supreme Court disapproved the judgment of the Rajasthan High Court in Dholpur Cooperative Transport Etc. Union Ltd. v. Appellate Authority, Rajasthan, AIR 1955 Raj 19 which upheld the objections raised as to the scope of the appeal.

7. Under Section 51 (1) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, the scope of the appeal is not in any way restricted. Under that provision, any person deeming himself aggrieved by any decision of the Tribunal may prefer an appeal to the special Tribunal. The restriction under Section 62 is only upon the jurisdiction of the Tribunal to go into the question of the correctness of the determination or the adequacy of the compensation; otherwise there is no restriction on the adequacy (of) powers of the Tribunal in disposing of the appeal. The decision of the Tribunal shall be final. That being so, merely because a separate appeal has not been preferred expressly against the judgment in O.P. No. 62 of 1965, the appeal directed against the judgment in O.P. No. 39 of 1965, which is a common order both the O. Ps. cannot be held to be not maintainable. The preliminary objection raised by the respondents is therefore overruled. In this appeal, this Court is competent to decide whether the appellants or the respondents are entitled to receive the compensation claimed by them in their separate applications and the decision in favour of one automatically results in the rejection of the claim of the other for there is no third party claiming compensation.

8. The Judgment of the Tribunal on the two issues, in our opinion, is not satisfactory. There is no categorical finding that Kotbapalle inam estate was part of Punganur impartible estate. That was the main issue. In order to determine that question, the two documents relied upon by the appellants were Exs. A-2 and A-3. Ex. A-2 is referred to as the Takid and Ex. A-3 is the certified copy of the statement said to have been given by the respondents' predecessor-in-title in the proceedings before the Settlement Officer in the year 1950-5). When Ex. A-3 came to be filed, the person who is purported to hae given the original of that statement was admittedly not alive. That statement, if true, goes against the interest of the person who is said to have given that statement and that person not being alive on the date when it was sought to be proved, that statement was clearly admissible in evidence under Section 32(3) of the Evidence Act. Therefore, there can be no difficulty in holding that if that statement was that of the respondents' predecessor in title, it is admissible in evidence. The further question would be whether that statement was proved The statement is said to have been made before an authority competent to record evidence on oath. It was recorded in a quasi-judicial proceeding. The statement so recorded could be proved by producing a certified copy thereof. Ex. A-3 is one such certified copy. In determining whether the said statement is proved or not one has to see whether it is document which could be proved by secondary evidence. The previous statement of dead person could be also one contained 'in a letter or other statement in the possession of private party. But the statement in this case is said to have been recorded in a judicial or quasi-judicial proceeding by an authority competent to record evidence. If the statement was so recorded, then such a statement could be proved by producing a certified copy thereof.

Ex. A-3 being a certified copy of a statement recorded by an officer competent to record a statement on oath and that statement being, the statement of a dead person is admissible under Section 32(3) of the Evidence Act and could be proved by producing secondary evidence. The production of the original statement is not necessary to prove that it was the statement of the dead person, for it was nobody's case that any interpolation was made in the certified copy or that it is not true copy of the original. The genuineness of the certified copy not having been disputed, it is not obligatory to produce the original of Ex. A-3. The finding of the lower Tribunal that Ex. A-3 was not admissible in evidence and that it is not proved is therefore set aside. The Tribunal has also observed that Ex. A-3 has no bearing on the points in issue. We are unable to agree with that observation also. Ex. A-3 is said to be prior statement of the respondents' predecessor-in-title. If that is admissible in evidence and it was the previous statement of the person whose statement it purported to be, then it undoubtedly has direct bearing on the points in issue. It would amount to an admission of the respondents' predecessor-in-title which binds the present respondents. It explains the nature of the alienation or grant under Ex. A-2. In Ex. A-3 several statements with regard to the possession and enjoyment of the village in question are made which have & definite bearing on the question as to whether it was a part of the Punganur impartible estate or a separate estate and whether under the Takid a lease was granted as is contended by the respondents or absolute rights were granted as pleaded by the appellants.

It is certainly a document very relevant for the determination of the rights of the parties with regard to Kothapalle inam estate. It has also a bearing in determining what was conveyed under Ex A-2, takid. The judgment of the lower Tribunal proceeds to discuss the consequences of permanent alienation of a part, of an impartible estate, without determining the primary question as whether Kothapalle village is part of an impartible estate and whether there was a permanent alienation. The Tribunal also has not taken into account the provision of Section 4 of the Andhra Pradesh (Andhra Area) Impartible Estates Act. That provision does not render alienations void ab initio. Sub-section (2) expressly oermits certain alienations. Even Sub-section (1) merely puts some restrictions on the authority of the proprietor of an impartible estate in the matter of alienations. Alienations made 'under circumstances which would entitle the managing member of a joint Hindu family to make alienation of the joint property or incur a debt binding on the share of the other coparceners independently of their consent are valid. These several aspects have not been considered. The Tribunal (was) certainly in error in proceedings upon the presumption that all alienations of an impartible estate are void ab initio. The Tribunal had to first categorically determine whether Kothapalle village was part of an impartible estate and only in the event of its coming to the conclusion that it is part of an impartible estate the further question as to whether it was a lease or grant and if it was a permanent grant or a sale, whether it was hit by Section 4 of the A. P. (Andhra Area) Impartible Estates Act, and the further question as to what is the effect of the amended Section 66 of the Estates Abolition Act are required to be considered. If, as contended by the appellants, Kothappelle village was not part of the impartible estate and the grant under Ex. A-2, as further admitted under the original of Ex. A-3, vested absolute rights in the appellants, then no further question would arise, and the appellants would be entitled to receive the compensation and not the respondents. These several aspects have not been considered by the Tribunal. We, therefore, set aside the judgment of the lower Tribunal and remand the matter to it for fresh disposal in the light of the observations made above and to dispose of the petition expeditiously, as far as possible within three months of the receipt of the records. The appeal is accordingly allowed The costs will abide the final result The court-fee paid on the memorandum of appeal shall be refunded.


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