In Re: M. Subbiah Thevar

Pandrang Row, J.—This is an appeal from the decree of the Subordinate Judge, Tinnevelly, dated 16th October 1935, reversing in appeal

the decree of the District Munsif of Tenkasi dated 25th September 1934 in O.S. No. 182 of 1933, a suit to set aside a sale held for arrears of rent

under the Estates Land Act on 29th January 1931 and for an injunction restraining defendant 1 from interfering with the plaintiff''s enjoyment of the

property purported to have been sold. The suit was dismissed by the District Munsif on the ground that the sale was not vitiated by reason of

anything alleged by the plaintiffs. On appeal, however, a new point was raised, viz., that the sale was invalid because it was conducted by a person

who had no authority to hold it, and as this point, viz., that the conduct of the sale was by a person who had no authority to hold it, was conceded,

the learned Judge found that the sale was invalid and accordingly allowed the appeal and decreed the suit as prayed for. It is contended in the first

place that this new point should not have been allowed to be taken for the first time in appeal. No objection on this ground appears to have been

raised in the lower appellate Court so far as can be seen from the judgment of that Court. In my opinion it is not correct to say that the lower

appellate Court had no jurisdiction to allow this point to be taken for the first time in appeal.'' It is not alleged that by reason of the point being

taken for the first time in appeal there has been any real prejudice caused to the appellant; the point is not one on which any evidence was

necessary as it was conceded that the person who held the sale had no authority to hold it. I cannot, therefore, say that the decree appealed from

is wrong, because it is based on a point raised for the first time in the lower appellate Court.

Next it is contended that the civil Court has no jurisdiction whatever to entertain a suit to set aside a sale for arrears of rent held under the

Estates Land Act. There is really no authority in support of this general proposition. Decided cases do not go to this length. On the other hand the

provisions of Section 189, Madras Estates Land Act, which alone limit or take away the ordinary jurisdiction of the civil Courts to decide all civil

disputes do not oust the jurisdiction of the civil Court to decide a claim of this kind. What Section 189 says is that no civil Court in the exercise of

its original jurisdiction shall take cognizance of any dispute or matter in respect of which a suit or application of the nature specified in parts A and

B of the Schedule to the Act might be brought or made. Parts A and B of the Schedule do not include a suit or application to set aside a sale held

for arrears of rent. That being the case it is clear that there is jurisdiction in the civil Court to decide whether a certain sale held under the Act for

arrears of rent is valid or otherwise. For instance in Chidambarm Pillai v. Muthammal 1915 1 MLW 414, it was held that a suit for a declaration

that a rent sale is legally void in consequence of the landholder not having applied to the Collector within the 45 days prescribed by Section 115,

Madras Estates Land Act, is cognizable by civil Courts. The same case is authority for the proposition that the words ''any dispute or matter in

respect of which such suit or application might have been brought or made'' in Section 189, Madras Estates Land Act, refer only to suits described

in the schedule and not to all suits arising out of a dispute or matter in respect of which suits might be brought. It was also held in Gouse Moideen

Saib Vs. Muthialu Chettiar and Another, , that a suit to set aside the sale of a holding on the ground of fraud is cognizable by the civil Courts. In

any case the burden lies on the appellant who denies the jurisdiction of the civil Court to establish the grounds on which such denial is made. No

such ground has been established, for Section 189 does not lend any support to this proposition.

I am, therefore, of opinion that this objection on the score of want of jurisdiction is not well founded and must be dismissed. It has not been

seriously argued that if as a matter of fact the sale was held by a person who had no authority to hold it, it is nevertheless to be treated as valid

merely because it purports to have been held under the Estates Land Act. In the absence of any authority to hold the sale, the sale cannot be

regarded as valid. I am, therefore, of opinion that the decree appealed from is right. The appeal, therefore, fails and is dismissed. Leave to appeal

is refused.