1. These two appeals from the decision of Ekbote, J., relate to identical subject-matter and concern the question of the grant of ryotwari patta consequent on the abolition of Gopalapuram Estate. The land in respect of which proceedings were taken by the Asst. Settlement Officer, is situate at the village of Gopalapuram.
2. In Writ Appeal No. 187 of 1968 the appellants are deities represented by the trustee and he claims that ryotwari patta has to be granted to the deities. The rival claimants are the appellants in Writ Appeal No. 472 of 1968 and they advance the plea that they are the ryots entitled to the grant of a patta.
3. Both sides are aggrieved by the decision of the Tribunal which came to the conclusion that neither the deities nor the tenants have established the right to the lands in question. The negation of their case by the Tribunal is based on its view that the land in question 'must have been once tanks'. The finding of the Tribunal is not stated in a precise form but it is clearly a pronouncement holding that the nature of the lands is such that no ryotwari patta can be granted to any party. This finding of the tribunal was rendered in confirmation of the conclusion of the Asst. Settlement Officer.
4. There were two writ petitions by the deities and the ryots and they were heard together and decided by a single judgment. Our learned brother summed up his view in these words:
'........................... the finding of the Tribunal categorically is that this is not a darmilla inam, that it is a tank bed land and therefore a communal land not used for a specific purpose. When once this finding is there, the Tribunal could not have granted pattas to any one of the parties'.
5. The learned Judge overruled the plea that the Tribunal and Assistant Settlement Officer acted in excess of jurisdiction. He confirmed the Tribunal's view that the land in question is a 'Communal waste land' and rejected the writ Petitions.
6. In these appeals the appellants join in presenting a common case to get over the preliminary hurdle that neither party is entitled to the grant of a ryotwari patta. To this extent the appellants are ad idem although their interests are in conflict on the question as to who is to get the ryotwari patta once they get over the initial difficulty.
7. It is submitted on their behalf that there is a clear admission made by the Government in the counter filed on its behalf that the lands in question were classified as ryoti lands and treated as such for a considerable time before the abolition of the Estate. After the notified date, the entries in the village accounts bear out the lands were treated as Zeoroyiti in nature.
8. It is not the case of the Government that the averments in the counter-affidavit were made under a misapprehension. They were not shown to be the result of inadvertence or fraud. Nor is it said that they are not borne out by the records of the estate. It must be noted that the counter-affidavit was filed in this court in answer to the writ petitions and the pleading therein must be the basis for the adjudication of the respective rights of the parties. The decision reached by our learned brother makes no reference to the pleading filed by the Government in answer to the writ petitions presumably because his attention was not invited to it. We are of opinion that the decision of this court in these proceedings must be rendered in the light of the pleadings placed before us and that there is no justification for ignoring the specific and unambiguous facts admitted in the pleading.
9. The Assistant Settlement Officer held in the first instance on 30-5-1958 that the tenants were the ryots within the meaning of Section 11 of the Estates Absolution Act and directed the issue of a patta accordingly. This decision was questioned on appeal not by the Government but only by the deities. The Tribunal that decided the appeal set aside the finding and directed a fresh enquiry. So far as the Government was concerned there was no challenge of the finding that the land was ryoti. In view of this position, it is contended by counsel for the appellants that the Government is precluded from asserting after the remand that the land is of such a nature that it vests in Government absolutely and no ryotwari patta is capable of being granted to any party. The scope of the remand is very limited. The function of the settlement officer is to determine in terms of the order of remand, whether the deities or the tenants are to be the grantees of the patta. There is no warrant for re-opening the settled issue that a patta could be granted. This position was not canvassed in the counter-affidavit of the Collector filed on behalf of the respondent.
10. Apart from this aspect, it is expressly conceded that from the survey made in 1870 upto fasli 1368 the land stood in the name of the deity. It is also stated that the land holder's accounts show that the land was described as 'Kattabadi Darmila Inam' which description necessary implies that it was never treated as communal land. The averments in the counter-affidavit lead to the conclusion that after 1870 the land was never treated as tank-bed land. It follows that even on the date of the Estates Land Act, the land had shed its character as tank bed land and hence it was ryoti land since 1908.
11. We are consequently of opinion that the finding of the Tribunal that the land was tank bed land at the notified date cannot be sustained.
12. The position therefore is that one of the two rival claimants is entitled to the issue of ryotwari patta. The Tribunal, it is manifest did not consider that question. Nor did the Assistant Settlement Officer approach the question in the true prospective. He exceeded the limit of his jurisdiction which was to conform to the limits of the orders of remand.
13. Mr. Ramachandra Rao submits that there were concurrent findings that the land did not constitute a Darmila inam and that Ekbote, J., also affirmed the finding. it is also stated in Paragraph 6 of the Collector's counter-affidavit that the land is ryoti according to the Government accounts and not a Darmila inam. Since we are remitting the matter to the Asst. Settlement Officer there is no, need for us to deal with this submission of counsel. We fell no doubt that the prior findings and the statement in the counter-affidavit as also the entries in accounts will be duly as also the entries in accounts will be duly taken note of by the Assistant Settlement Officer in the proceedings that will follow.
14. The Assistant Settlement Officer, Kakinada will now deal with the dispute between the parties as one coming under Sections 56 and 11 of the Estates Abolition Act. From what we have said in the previous paragraph it is clear that the deities cannot be said to be 'land holders' inasmuch as the land was not a Darmila Inam.
15. We allow the appeals and direct the Assistant Settlement Officer to grant to ryotwari patta after enquiring into the dispute under Section 56 of the Act. The parties will bear their respective costs throughout.
16. Appeal allowed
17. Case Remanded.