THE LAND IN QUESTION IS RYOTI LAND AND NOT COMMUNAL WASTE LAND. THE ASSISTANT SETTLEMENT OFFICER EXCEEDED HIS JURISDICTION BY RE-OPENING THE SETTLED ISSUE THAT A PATTA COULD BE GRANTED.

( 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 Tribunals 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