In Re: Uthumalai Zamindar M. Subbiah Thevar Avl.

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 the 29th January, 1931, and for an injunction restraining the first defendant from interfering with the plaintiff''s

enjoyment of the property purported to have been sold. The suit was dismissed by the District Munsiff 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, namely, that the sale was invalid because it was

conducted by a person who had no authority to hold it and as this point, namely, 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 of the 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 cognisance

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 Chidambaram Pillai v. Muthammal (1914) 1 L.W. 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 of the Madras. Estates Land Act

is cognisable 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 of the 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 such suits, might be brought. It was also held in Gouse Moideen Saib v. Muthialu

Chettiar (1913) 26 M.L.J. 36 that a suit to set aside the sale of a holding on the ground of fraud is cognisable by the Civil Court. 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.)