K.A.M. Sheriff vs Ramu Reddiar

This appeal is against an order of remand passed by the lower appellate court remitting the suit, O. S. No. 56 of 1969 to the trial court for fresh

disposal.

The plaintiff, appellant herein, filed a suit for a declaration that the revenue sale held on 16-12-1968 in respect of the suit property which

belonged to him is void and for an injunction restraining the defendant, the purchaser of the property in that revenue sale, from taking delivery of

the property. The plaintiff''s case is that he had no arrears of land revenue or loan arrears, that in fact he had paid amounts in excess of the land

revenue due by him, that by some mistake the suit property had been sold for recovery of certain alleged arrears of land revenue, that he had no

notice of the proceedings under the Revenue Recovery Act, that there was in fact no proclamation regarding the sale of the properties and,

therefore, the revenue sale is null and void and not binding on him. In that suit, neither the State Government nor the officers who brought the

property to sale have been made parties, but the suit has been filed only against the auction purchaser, the respondent herein.

The defendant resisted the suit contending that since the validity of the revenue sale has been questioned on the ground that there was no arrears

of land revenue, and that there was irregularity in the publication and the conduct of the sale, the State Government is a necessary party to the suit,

that as the revenue sale has not also confirmed in his favour on the date of the suit, the suit is not maintainable. The defendant also contended that

there must be a prayer for setting aside the revenue sale, and the relief by way of a declaration that the revenue sale is null and void cannot be

granted and that there was in fact arrears of land revenue, that there was due service of notice on the plaintiff before the sale, that there was due

proclamation in the village and that there is no irregularity in the publication and conduct of the revenue sale as alleged by the plaintiff.

The trial court, on a consideration of the evidence on record, held that the plaintiff is barred by the principles of res judicata from contending that

there are no arrears of land revenue due by him to the Government in view of an earlier decision in O. S. 192 of 1966 wherein it has been held that

the plaintiff was in arrears to the extent of Rs. 1222-18. It however held that no reliable proof has been adduced by the defendant to show that

there was wide publicity in the village as provided under Ss. 22 and 39 of the Revenue Recovery Act, and that in any even the sale of the suit

property which are valuable wet lands of an extent of 2-17 acres with 63 coconut trees and a motor shed for recovery of an arrears of Rs.

1826.98 has also contravened Ss. 14 and 44 of the Revenue Recovery Act, hereinafter referred to as the Act, and that the price fetched is grossly

inadequate and therefore the revenue sale of the suit property has been questioned in the suit, the State Government is not necessary party and that

even if the State Government is a necessary party, the suit cannot be dismissed on that sole ground but the court has to decide the matter in

controversy so far as it concerns the rights and liabilities of the parties before it. It also held that there need not be a specific prayer for setting aside

the revenue sale and a prayer for a declaration that the sale is null and void is quite sufficient. The trial court, therefore, granted the relief to the

plaintiff by way of a declaration that the revenue sale held on 16-12-1968 is void, but refused to grant the relief by way of an injunction on the

ground that the defendant has by then taken possession of the property on the basis of the revenue sale.

On appeal by the defendant, the lower appellate court has taken the view that the State Government is a necessary party and that, therefore, the

suit is bad for non-joinder of a necessary party. In this view, the lower appellate court, without going into the other questions decided by the trial

court, remitted the matter to the trial court for fresh disposal after impleading the Government as a party. In this appeal the view of the lower

appellate court that the Government is a necessary party in this case has been challenged.

According to the learned counsel for the plaintiff-appellant, even though the action of the Government in bringing the property to sale is

questioned in the suit, the Government is not a necessary party and that the lower appellate court is in error in remitting the matter to the trial court

for impleading the Govt. as party without disposing the appeal on merits. The appellant''s learned counsel refers to the decisions in Bal Mokoond

Lall v. Jirjudhun Roy, ILR (1883) Cal 271, Balkishen Das v. Simpson, (1898) ILR 25 Cal 833 (PC) and Annamalai Velan and Others Vs.

Murugappa Velan and Others, in support of his submission. Bal Mokoond Lall v. Jirjudhun Roy, ILR (1883) Cal 271, arose out of a suit for

setting aside a revenue sale for arrears of land revenue on the ground of a material irregularity in the conduct of the sale which has resulted in

substantial injury to the plaintiff, wherein the Government was not made a party. One of the questions that arose in that case was whether the

plaintiff was bound to make the Government a party to the suit. In support of the plea that the Government should be made a party, reference was

made to S. 35 of Bengal Act VII of 1896 which provided for the refund of the purchase money by the Government together with interest in the

event of the sale being set aside, as indicating that the Government should normally be made a party to a proceeding where the revenue sale is

challenged. The court expressed the view that S. 35 by itself does not afford any ground for the contention that the Secretary of State was

necessary party to the suit as it merely provides that the purchase money shall be refunded to the purchaser by the Government together with

interest in the event of the sale being set aside but that it does not mean that the Government is not interested in the question raised in the suit

because if the sale is set aside the Collector will have to proceed do novo in the matter for realisation of the arrears of land revenue and, therefore,

the Government have such interest in the suit as would, on their application entitle them to be made a party to it. In Balkishen Das v. Simpson, ILR

(1898) Cal 833 their Lordships of the Privy Council had to deal with an objection raised by the defendant that the Secretary of State for India is a

necessary party to an appeal as the case related to the setting aside of a revenue sale. Their Lordships said that ""in their opinion the position of the

Indian Secretary, in cases like the present, is correctly explained by Mr. Justice Mitter in Bal Mokoond Lall v. Jirjudhun Roy, ILR (1883) Cal

In Annamalai Velan and Others Vs. Murugappa Velan and Others, Sadasiva Aiyar and Spencer JJ. have held that the decree-holder under

the Madras Rent Recovery Act is not a necessary party in a suit to set aside a rent-sale under S. 40 of Act 8 of 1865, though the decree-holder is

a necessary party in a proceeding to set aside a sale conducted at his instance under the provisions of the Civil Procedure Code. In that case the

suit was instituted under the Madras Rent Recovery Act by the owners of the Kudiwaram rights in certain lands to set aside the rent sale of the

Kudiwaram right against the purchaser of the rent sale and the melwaramdars were originally joined as defendants. But on an objection taken by

the defendants a Receiver appointed on behalf of the melwaramdars was added as a supplemental defendant more than one year after the date of

the sale. The defendants thereafter pleaded that the suit was barred by limitation. The court expressed the view that none of the melwaramdars or

the Receiver is a necessary party to the suit to set aside a rent sale and that it is only the purchaser at the rent sale who is a necessary party, that

there is no provision in the Rent Recovery Act indication that the landlord who brings about an illegal or irregular sale is a necessary party to a suit

brought in the civil court to have the sale set aside, that under O. 1, R. 3 of the Code, the proper persons to be joined as defendants in a suit are

those against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist,

whether jointly, severally or in the alternative, that when the sale of the kudiwaram right in a land takes place under the Rent Recovery Act, and the

tenant, the owner of the kudiwaram right, brings a suit to set aside that sale, the relief, the granting of which establishes or reestablishes the title of

the plaintiff will affect only the purchaser at the rent sale and no other person and therefore, the right to such relief exists only against the rent

auction purchaser. The learned Judges were of the view that in cases of sales held under the CPC in execution of a decree, the setting aside of the

sale will affect not only the auction purchaser but also the decree-holder as under O. 21, R. 93, if the sale is set aside, he cannot take or retain the

purchase money towards his decree amount and, therefore, in proceedings under O. 21, R. 90, he has been held to be a necessary party but that

the sales under the Rent Recovery Act, however, will stand on a different footing. The learned Judge ultimately held-

It is clear to us that but for the provision in S. 315, C.P.C. (O. XXI, R. 93), even the decree-holder will not be a necessary party to an

application under O. XXI, R. 90 or O. XXI. R. 91, to set aside a court auction sale and because the general rule of caveat emptor was relaxed in

favour of a court auction purchaser in O. XXI, R. 93, the decree-holder is a necessary party in applications to set aside court auction sales.

Of all the three decisions referred to above only the first two relate to the revenue sale held for recovery of revenue due to the Government. In the

third case the sale was held at the instance of the melwaramdar under the Rent Recovery Act for recovery of arrears of rent due to the

melwaramdar. The observations of the Bench in that case that the melwaramdars are in the position of decree-holders and therefore they are not

necessary parties to the suit unless there is a specific provision to that effect in the Rent Recovery Act cannot apply to a case where the revenue

sale was held for recovery of the arrears of land revenue where the decree-holder as will as the person who conducted the sale is the same.

Therefore in suits to set aside the sale for arrears of land revenue the Government is not only interested in recovering the land revenue but also in

sustaining the sale effected for realisation of the land revenue. In Secy. of State and Another Vs. M. Murugesa Mudaliar and Others, , there was a

suit for a declaration that the plaintiff was a duly elected member of a local authority. In that suit the local authority alone was made party but the

Government applied to the trial court for being added as a party. That was refused and on revision Venkatasubba Rao J. held that as the defence

to the suit is based on a notification issued by the Government directing a fresh meeting of the local authority to be held under S. 38 of the Madras

Local Boards Act; the plaintiff''s main grievance is against the Government and, therefore, the Government is a proper party to the suit. This

decision seems to suggest that wherever the action of the Government is questioned in a suit, the Government is a proper party to that suit.

It is true, the plaintiff in a suit cannot be compelled to impaled as a defendant a person against whom he seeks no relief and that the court will be

reluctant to force an additional defendant into the action against his will. But having regard to the object of the Legislature to avoid multiplicity of

suits and to ensure that the matter is finally decided in the presence of all the parties interested without delay and expenses, the trial court has been

given the power to add a person as defendant even though the plaintiff may object to such joinder. In this case, the trial court has taken the view

that the suit cannot be dismissed as the court has to decide the matter in controversy so far as the rights and interest of the parties before it are

concerned. But it cannot be disputed that the plaintiff virtually challenges the act of the Government in bringing the property to sale for arrears of

land revenue on the ground that there are in fact no arrears of land revenue and that in any event the sale held is contrary to the provisions of the

Revenue Recovery Act. Therefore, the Government is very much interested in defending the suit. In Mrs. Maniluxmi Patel and Another Vs.

Hindusthan Co-operative Insurance Society, Ltd. and Another, and Gwasha Lal v. Kartar Singh, AIR 1961 J & K 66, it has been held that in suits

filed to set aside a revenue sale for realisation of Government dues, the Government is a necessary party. In this case the plaintiff has not only

challenged the validity of the revenue sale on the ground that it is irregular, but also on the ground that there were in fact no arrears of land revenue

on the date of sale. In a case where the validity of the revenue sale has been challenged only on the ground of irregularity it can be said that the

Government need not be made a party as they can in any event if the sale is set aside on the ground of irregularities in the conduct of the sale. But

where the plaintiff''s case is that there are no arrears of land revenue but nonetheless his property has been sold, the auction purchaser is not

expected, nor is it possible for him to defend and establish that there was in fact arrears of land revenue. Even assuming that he adduces materials

on the question of arrears, still any finding given in the suit will no bind the Government and the Government, notwithstanding the finding of the civil

court can recover the arrears, if any, due, any finding given by the court in the absence of the Government on the question whether there are

arrears of land revenue or not will be ineffective as that finding will not bind the Government. In Bal Mokoondlal v. Jirjudhun Roy, ILR (1883) Cal

271 and Balkishen Das v. Simpson, ILR (1898) Cal 833, referred to above, it does not appear that the liability for arrears of land revenue was

disputed by the plaintiff. Therefore, those decisions may not apply to a case where the plaintiff disputes the existence of arrears of land revenue in

realisation of which the revenue sale is held. On the plea taken by the plaintiff in the suit that there are no arrears of land revenue, I hold that the

Government is a necessary party to the suit.

Hence the order made by the lower appellate court does not call for any interference. The civil miscellaneous. appeal therefore fails and it is

dismissed. No costs.

Appeal dismissed.