Judgement

HEGDE, J. :- This is an appeal by special leave. Defendants 2 to 7 in the suit are the appellants in this appeal. The plaintiffs who are respondents 1 to 4 herein sued for a declaration that Survey Nos. 12 to 18 comprising an extent of 10 acres 54 cents in South Vallur village of Vijayawada Taluk are communal lands, the villagers therein having rights of irrigation and drainage. In that suit they challenged the assignment of suit lands in favour of the 2nd defendant (1st appellant) by the Estates Manager by his order of December 21, 1952. They also sought a permanent injunction restraining the defendants from interfering with the exercise of their rights in those lands. Further they prayed for a mandatory injunction against defendants 2 to 7 directing them to restore "Agakodu" at their own cost to its original condition. The plaintiffs brought the suit in a representative capacity after obtaining the permission of the Court.

2. The 2nd defendant resisted the suit on various grounds. He pleaded that he had been in possession of Survey Nos. 12 of 15 ever since 1946, after obtaining a grant from the Zamindar of the South Vallur under Patta Ex. B-8 dated January 15, 1946. According to him after the abolition of the Estates under the Estates Abolition Act, 1948 (in short the Estates Abolition Act), Survey Nos. 16 to 18 were held to be unnecessary for the original purpose by the Collector. Thereafter those Survey Nos. were granted to him by the Estates Manager under Ext. B-16. He further pleaded that during the pendency of the suit, a Patta for the suit lands were granted to him under S. 11 of the Estates Abolition Act by the Assistant Settlement Officer under Exh. B-30 dated December 10, 1955.

3. The trial court dismissed the plaintiff s suit upholding the contentions of the 2nd defendant. It came to the conclusion that the plaintiff had failed to establish the communal character of the lands pleaded by them and further even if those lands were communal lands at one time, they had ceased to be such in view of the various order passed by the authorities.

4. The first appellate court reversed the findings of the trial court and decreed the plaintiff s suit as prayed for. It came to the conclusion that the lands in question were communal lands and the villagers had rights or irrigation and drainage through those lands. It further came to the conclusion that the various orders referred to by the 2nd defendant in his written statement were either invalid or ineffective. The High Court has affirmed the decision of the 1st appellate court.

5. Mr. R. V. Pillai, the learned Counsel for the appellants formulated three contentions before us viz. (1) that the conclusion reached by the 1st appellate court and affirmed by the High Court that the lands in question are communal lands has no basis in evidence (2) that the Civil Court had no jurisdiction to entertain the suit and (3) in any event the communal rights in the suit lands were extinguished under S. 32 of the Estates Abolition Act.

6. We shall now proceed to examine these contentions. But before doing so, it is necessary to point out that Mr. Pillai attempted to reopen questions of fact which appear to have been conceded before the High Court. We have not permitted him to do so. From the judgment of the High Court, it is clear that the arguments in that court proceeded on the basis that the suit lands were once communal lands; Survey Nos. 12 to 15 even now continue to be communal lands but Survey Nos. 16 to 18 ceased to be as such because of the order passed by the Collector, Krishna on October 29, 1946 under S. 20-A (1) of the Madras Estates Land Act as well as that passed by the Estates Officer and Assistant Settlement Officer subsequently, to which we shall refer presently. In the course of the judgment the learned Judge of the High Court observed.

"It is not in dispute that the lands S. Nos. 12 to 18 and measuring 10 acres and 54 cents, situate in South Vallur village in Vijayawada