Deekonda Anoopkumar vs The State of Andhra Pradesh

Seetharama Reddy, J. 1. The question that falls for consideration in this case is whether it would be competent for the Tribunal to adjudicate upon a point sought to be raised for the first time on remand though the remand order did not pertain to the same, nor the point was agitated on the first round. The relevant facts in brief are: The revisionist herein on a declaration filed, claimed certain reliefs, Aggrieved by some, he preferred an appeal and not satisfied with the appellate order, went in revision. In the revision certain points were argued and the revisional Court remanded the matter to the primary Tribunal. It is at that stage for the first time the question was raised with regard to the classification of S. Nos. 271, 274, 275 and 278 of Dharmavaram village contending that they have been wrongly classified as wet lands instead of dry. Though the primary Tribunal rejected to entertain both on merits as well as on the ground that on remand it was not competent for the revisionist to agitate for the first time, but the Appellate Tribunal on the contrary held that though as per the decided cases of this Court the lands which are localised as ''irrigable dry'' and no water has been supplied nor any wet crop has been raised, shall have to be classified as dry only, nevertheless held that these survey numbers though will have to be classified as dry, but since this was not canvassed at the first instance but only sought to be agitated for the first time after remand, the revisionist is precluded from doing so, as it would not be competent for the Appellate Tribunal to entertain the same. Hence this revision.

The learned counsel for the petitioner Sri N. Subba Reddy relied on certain decisions of this Court favouring this point. In B. Papaiah v. State of A. P., 1980 (1) AP LJ 43 it has been held by Madhava Reddy, J. as under;

"The three questions which affect the computation of the declarants'' holding were not considered by any of the Tribunals. When these questions were not considered and disposed of by the Primary Tribunal or by the Appellate Tribunal when it made the order of remand, the Appellate Tribunal is not precluded from considering the same unless the order of remand even on the questions which were not considered and disposed of by the Appellate Tribunal when making the order of remand, precluded the Appellate Tribunal from considering the same. From the wording of Sub-section (2) of Section 105, C. P. C. it cannot be said that all such matters which could have been raised but were not raised were also decided by the Court passing the order of remand and that the Court hearing the appeal against the order made by the Primary Tribunal on remand was precluded from entertaining those points and considering the same on merits merely because the order of remand has become final and has not been questioned by way of further revision. The order of remand is final only as regards matters which have been decided by the order of remand, and not with respect to matters which were never considered and disposed of. Under the Act, no appeal lies against the order made by the Appellate Tribunal, only a revision lies to the High Court. In such a case, Section 105(2) has no application it does not debar a party from raising the points."

The learned counsel further relied on a decision in Chenchi Reddy v. State of A. P., 1980 (1) AP LJ 257. Wherein after posing the question, namely, "The sole point that arises in this revision is whether certain points with reference to the holding which were not initially raised but were subsequently sought to be raised at the time when the matter was remanded by the revision Court, could be allowed to be agitated", it has been held:

"So construed, I have no hesitation in holding that the revision petitioner is entitled to reagitate the points even at the time when the matter is sent back to the Tribunal on a ground which is quite extraneous to the new points."

It may, however, be noticed that in the very judgment, an observation, which is an obiter dictum, has further been made as under:

"This is also evident from the provisions enacted in Sub-rule (9) of Rule 16. Therefore, it is inherent in the very scheme of the things that matters even though for some reason or other were not and could not be raised could nevertheless be raised and could be got decided by the respective forums provided under the statute till the excess land surrendered gets vested by way of acceptance or Otherwise in the Government".

This observation is no more a good law in view of the decision of Madhava Reddy, J., in B, Papaiah v. State of A. P. (1980) 1 APLJ 43 and also in view of my later decision in M. Anjaiah v. State of A. P., 1980 (1) APLJ 412 wherein I have held that the application filed at the time of surrender proceedings for rectifying the wrong classification of lands, if it was not urged at the original enquiry in any of the Tribunals, is not maintainable.

What becomes manifest from the above case law is that where there is a finality of the determination of the holding and thereafter when surrender proceedings are initiated, no fresh point shall be allowed to be agitated. But, however, where there is finality with regard to the adjudication of the declaration on its merits and if there is a remand order passed by the revision Court, for the first time a fresh point may be allowed to be agitated even though that point has not been agitated hitherto, nor covered by the remand order. I respectfully agree with the decision laid down by Madhava Reddy, J., cited above. In the light of the above it is certainly competent for the Tribunals below to decide about the classification of the above enumerated survey numbers as to whether they have to be classified as wet or dry. Since there has been already an adjudication by the Appellate Tribunal and very rightly so in the light of the decisions of this Court, these survey numbers which are localised as irrigable dry and no wet crop has been raised, nor any Government source of water has been used, such lands will have to be classified as dry only. The matter is, therefore, remanded to the primary Tribunal for due recomputation by treating the aforesaid four survey numbers as dry.

In the result, the Civil Revision Petition is allowed and remanded. No costs. Advocate''s fee Rs.150/-.