Chidambara Velan vs Sangili Servai and Others

Odgers, J.—This is a suit to set aside a sale for arrears of rent held under the Madras Estates Land Act on the allegation that the sale was

fraudulent. It is objected by Mr. B. Sitarama Rao for the appellant that, the Munsif having held that there was no fraud and the Subordinate Judge

having eventually found against the plaintiff and dismissed his suit, there was no notice to the plaintiff that the various points to be detailed hereafter

were going to be alleged against him. Now the written statement alleges in paragraph 8 various details of what are called fraud. It may, I think, be

at once stated that there was no fraud in the ordinary acceptance of the term, but the word seems to have been used rather loosely and widely to

cover the various irregularities alleged in the conduct of the sale. The District Munsif, as is clear from his judgment, allowed three matters to be

agitated by the defence before him, namely, the issue of patta, the service of notice, and the proclamation of sale. With regard to the issue of patta

there is no mention of it in the written statement and it is possible that the plaintiff may have been prejudiced by not having been put on notice of

that, though it is stated that the question was put in cross-examination to his first witness, and, as I have said, there can be no doubt that it was

allowed to be gone into by the District Munsif. Leaving aside this question, there are two further questions, viz., defect in the notice of sale and in

the proclamation of sale. These two allegations are specifically taken in details 2 and 3 of paragraph 8 of the written statement. Now, the

Subordinate Judge found with regard to the first of these that there was no proper service of notice and that the provision of law as to notice had

not been complied with, i. e., Section 112 of the Estates Land Act (Act I of 1908). Mr. Sitarama Rao strongly urged before me the presumption

that official acts must be taken to have been duly and sufficiently carried out and he pointed to the reason given by the Subordinate Judge in

paragraph 10 of his judgment that there was no statement in the endorsement that there was no adult male member in the family. The learned vakil

for the appellant points out, and points out quite rightly, that no such requirement is laid down in Section 112. But I think the Subordinate Judge

was justified, when he had to decide whether or not there was a sufficient and proper notice under S, 112, in considering all questions arising from

the way in which the return was made and it is clear that he was not satisfied that notice had been properly served on the holder of the estate. The

section requires a copy of the notice to be served oh the defaulter or to his authorised agent or on some adult male member of his family at his

usual place of abode. There is no question that it was not served on the holder or his authorised agent and it seems to me that the Subordinate

Judge could take into consideration the state of the endorsement in order to satisfy himself that the notice had been or had not been served in

accordance with jaw. As the Subordinate Judge rightly says, the burden is of course on the plaintiff on this and on similar points, see Irulappan

Servai v. Veerappan (1921) 42 MLJ 113.

The second point found against the appellant by the Subordinate Judge is that the mode of proclamation was defective in that all that was

proved was that there was proclamation by mere beat of torn torn and that, as the Subordinate Judge puts it, the contents of the proclamation

were not proclaimed. As to the contents of the proclamation, he refers to the details contained in Section B. Raja Rajeswara Sethupathi alias

Muthuramalinga Sethupathi Avergal, Raja of Ramnad (through his authorised agent Rao Sahib S. Thirumalai Ayyanger Avergal Dewan of Ramnad

Vs. Venkataramaiyar and Another, which must be specified in the order and the proclamation referred to in Section 117 (1921) 42 MLJ 113. This

has been found by the Subordinate Judge on the evidence to be defective and, as such, it is a finding of fact with which I cannot interfere.

Mr. Sitarama Rao has also contended that any irregularity of the sort arising in this appeal should be the subject of an application u/s 112 for the

Collector to set aside the sale and that the Civil Courts have nothing to do with it. This, I think, is disposed of by the Full Bench ruling in Rajah of

Ramnad v. Venkatarama Aiyar ILR (1922) M 890 : 43 MLJ 264 where the Full Bench clearly lays down that a suit by a ryot who alleges that his

property has been unlawfully sold can be investigated and tried by a Civil Court.

The two points, namely, service of notice and the proclamation, are sufficient to dispose of this Second Appeal, which is accordingly dismissed

with costs.