Irulappan Servai vs Veerappan alias Kaluvandan Servai and Others

The Officiating Chief Justice: The suit lands in this case were brought to sale under the Madras Estates Land Act in 1914 for arrears of rent and

bought in by the Zemin Revenue Inspector. They were sold by the latter to the plaintiff on the 28th of August 1915 and delivered over on the 16th

November 1915 According to plaintiff they were subsequently trespassed on by defendants and he sued for possession with mesne profits and

damages. The defence raised was that the lands were the property of the 6th defendant by right of purchase from the 3rd defendant who in his turn

had acquired title by virtue of a court auction sale in execution of a mortgage decree against the original ryot who defaulted in his rent. This Court

auction was as long ago as 1911 and it is admitted that neither 3rd nor 6th defendant took steps u/s 146 of the Madras Estates Land Act to obtain

transfer of tenancy in their favour although it is stated that on one occasion in 1913 the Zatnin Revenue Inspector took rent from the 6th defendant.

This would not effect a transfer of tenancy.

The grounds on which the Lower Appellate Court has held the suit to be liable to dismissal are three in number. Two of them are newly raised in

first appeal.

The first ground is that the Revenue Inspector Samavayyar who executed the sale deed exh. P to plaintiff was not competent to transfer the

land; because his purchase at the rent sale was on behalf of the Zamin. A perusal of Exh. P seems to indicate that in that transaction also he was

acting on behalf of the Zamin; but, however this may be, no objection of this kind was taken in the written statement or apparently at any time in

the first court; certainly, no issue was framed to cover it; and plaintiff had no notice or chance of meeting it. I do not think such a plea should have

been admitted on respondents'' behalf in appeal and I must reject it.

The next point is that the trespass by defendants subsequent to the 16th November 1915 has not been proved. The Lower Appellate Court

thinks that the delivery of possession to plaintiff was merely symbolical and that defendants were in possession both before and after that date. This

is also an entirely new point not covered by an issue; and even if the Subordinate Judge is right and the delivery of possession to plaintiff was only

symbolical it is difficult to see what difference that makes to the maintainability of the suit.

The remaining point is that on which the first court dismissed the suit. It is said that the rent sale is invalid u/s 53 of the Madras Estates Land Act

as no patta and muchilika had been exchanged and no permanent patta was in force.

This point also was not specifically taken in the written statement which contains only the general allegation that the rent proceedings are

fraudulent and that plaintiff should prove their truth and regularity. On no better challenge than this it has been decided against plaintiff on the

ground that there is no evidence on the point. If I thought the validity of the rent sale could be impugned by defendants in this suit, I should feel

compelled to call for a finding on this point giving both sides an opportunity to adduce evidence. But I do not think it can

The absence of patta and muchilika would be a proper ground for a suit under the Schedule to the Madras Estates Land Act (Part A, 12). No

such suit was filed by the defaulting ryot and 6th defendant''s petition on plaint was presented after expiry of the period allowed by Section 112. In

such circumstances Section 189 of the Madras Estates Land Act bars the jurisdiction of the Civil Court to entertain such a plea.

It is argued that this is not so; because 6th defendant and his vendor 3rd defendant were not ""defaulters"" within the meaning of Section 112 and

for this reason could not sue under Part A Item 12 of the Schedule. S. I89 bars the jurisdiction of the Civil Court ""in respect of any dispute or

matter in respect of which a suit or application under the schedule could be brought or made""--no matter by whom. It is clearly the policy of the

Act (1) to compel any person who has acquired an interest in a ryoti tenancy to follow the procedure laid down in Section 146 if he wishes to be

treated as a ryot and (2) to have all disputes as to procedure in rent sales enquired into by the Revenue Courts (Vide Section 112). To allow a

person who has not, taken action u/s 146, to ignore a rent sale at the time it is held and subsequently to dispute its validity in a civil suit'' would run

counter to both these principles. S. l89 does not seem to me to allow of such a construction.

The decree of the Lower Appellate Court must be set aside and plaintiff be given a decree for possession with mesne profits at the rate fixed by

the District Munsif and with costs throughout. ...

Odgers J.

The plaintiff is the appellant. He brought the suit for recovery of possession alleging that the plaint property was sold for arrears of rent due for

Fasli 1321 and was purchased on 28th August 1915 by him from the purchaser at the rent sale, by the Zamin Revenue Inspector. Third defendant

is the auction-purchaser of the same property sold in execution of a mortgage decree against the pattadars Ammamuthu and Santhayee. Third

defendant subsequently sold to 6th defendant who is the contesting defendant. The points raised in the lower appellate court were as to validity of

the rent sale, whether plaintiff had acquired a title to the property; whether the trespass by the defendants was true. Of these points only the first

was raised by the issues in the case, and as to the second and third no issues were taken. In my opinion they should not have been allowed to be

argued in the lower appellate court and I do not propose to consider them here. The argument before us was practically confined to the first point,

the validity of the rent sale alleged by the plaintiff. The Subordinate Judge says it is not true that the condition precedent to a rent sale laid down by

Section 33 of the Act had been complied with, i.e., exchange of a patta and a muchilika for fasli 1321 with the original pattadars. Thus the

proceedings culminating in the rent sale were invalid. For the plaintiff appellant it is argued that this was not taken in the written statement. In

paragraph 4 of the written statement of the defendants they pleaded that plaintiff had no possession or title; that the rent suit proceedings were

fraudulent; the onus was on plaintiff to prove their validity, and that those proceedings were not binding on defendants 3 and 6 nor could they give

plaintiff any rights as against themselves. It certainly does not appear that any plea which could be construed into raising the point u/s 53 was taken.

The plaintiff''s 3rd witness was the purchaser at the rent sale and it appears from his cross examination that the real question raised was as to notice

of the intention to sell not being served on 6th defendant, who in fact paid the list for fasli 1322. Not a word was put to him about the requirements

stated in Section 53. It would therefore appear that the lower appellate court was not entitled to go into this matter and that the part of the

judgment on this point in paragraph 3 is open to objection for this reason.

It was argued below that even if the sale was irregular the defendants were precluded from setting up its invalidity as the application of 6th

defendant to the Collector under 131 on 24th June 1914 to set it aside was too late. The Subordinate Judge disallowed this objection on the

strength of the ruling in Raman asari v. Muthuswami Naik ILR (1906) Mad. 248 which laid down that a defendant in possession was not

precluded from setting up the invalidity of a sale because his right to have it set aside was barred at the date of the suit by Article 91 of the

Limitation Act. The question is ""Does this authority apply to a case under the Estates Land Act and can the civil court determine such a question at

all ? ""Section 112 provides that notice of intention to sell shall be served on the defaulter through the Collector by the landholder and that the

defaulter must pay the rent or file a suit within 30 days from service of the notice. See also Schedule, Part A, 12 which is headed ""Suits triable by a

Collector"". Section 189 directs a Collector to hear and determine as a Revenue Court all suits and applications of the nature specified in parts A

and B of the schedule. The case in Ramanathan v. Ramaswami ILR (1914) Mad. 60 is authority for saying that a civil court cannot take

cognizance of a suit by a ryot to recover possession of a holding sold under the Act for non-payment of rent and the judgment expressly makes no

distinction between suits brought before or after the sale. It appears therefore that there is authority for holding that if the ryot does not avail himself

of the remedy provided by Section 112, he has no other remedy in the civil court. It would also appear that the auction-purchaser would be in no

better position than the ryot whose holding is brought to sale. Section 147(i).

As against this reasoning it is contended for the contesting defendant (6th defendant, that he was not ''the defaulter'' within the meaning of

Section 112, as ''the defaulter'' there only applies to the registered pattadar or to the person whom the landholder is bound to recognise under the

provisions of Section 146(1). It is admitted that 6th defendant gave no notice as required by Section 146(1) and Section 147(1) makes all acts

and proceedings under the Act so far as they affect the land effective as against the transferee prior to the giving of such notice. It is also admitted

that 6th defendant was the tenant paying the rent and as stated, rent was actually paid by him for Fasli 1322, the succeeding fasli to that for which

default was made. It would therefore appeal-that 6th defendant is exactly in the, same position as a defaulter under the Act and cannot take

advantage of the fact that neither he nor his transferee (3rd defendant) on whom notice was served) did not serve the notice required u/s 146(1). If

is next contended that on the authority of Jagannathacharyulu v. Satyanarayana Varaprasada Rau 37 M.L.J. 706 the validity of the sale is not

covered by Schedule, part A, No. 12. In that case all that was decided was that a Collector had no jurisdiction to set aside a revenue sale for

irregularity. of Judgment of Krishnan ], at page 355 where he says ""It seems therefore that the legislature did not contemplate (i. e. by Estates Land

Act) applications based on irregularities to set aside rent sales of holdings."" There is no irregularity proved in this case and the authority cited has

no application.

The lower appellate court is therefore in my opinion wrong on all points and its judgment must be reversed and the appeal allowed with costs

throughout.