M.R.V. Guru Rao vs N.D. Kunjappa

Alagiriswami, J.—The plaintiff who has failed in both the courts below is the appellant. The suit relates to an extent of 7 grounds situate in

what was formerly Puliyur Shrotriem, within the limits of the original jurisdiction of the Madras High Court. The suit property belonged to one

Abdul Azeez. The plaintiff claims through Abdul Azeez. The defendant claims through the landholder, who is said to have purchased this property

in a rent sale held under the provisions of the Madras Estates Land Act (hereinafter referred to as the Act). It is not necessary to trace the steps by

which either party became entitled to put forward his claim. Suffice it to say that the plaintiff claims through the ryot and the defendant claims

through the landholder. Therefore, the question of title wholly depends upon the validity of the rent sale held under the provisions of the Act. Ex. B.

6 is the Register of Land Attachments and sales. It shows that an arrear of Rs. 14-9-6 was due by the ryot for fasli 1344. The next column in that

register shows that the date of receipt of notice was 13th March 1936. This apparently is a notice contemplated under S. 112 of the Act. The next

date mentioned in the Register is the date of service and that is given as 19th March 1936. The next column relates to the date of intimation to the

landholder and that date is given as 26th March 1936. The next date of importance is 15th June 1936, which is the date of application for sale.

This is an application contemplated under S. 114 of the Act, which provides:

If the amount specified in the order under S. 112 has not been paid and if no suit contesting the right of sale has been instituted before the Collector

within thirty days from the date of service of the said notice, or if such suit has been instituted and the defaulting ryot has been declared to be liable

to pay the amount in whole or in part, the landholder may apply to the Collector for sale.

S. 115 (1) provides:

If no suit has been instituted, such application shall be made within 45 days of the posting by the Collector of Intimation of service under S. 113.

Now, it is pointed out that as the application for sale was made after 45 days contemplated under S. 115 (1), that is not a proper application.

The next date is the date of sale which is given as 25th July 1936. Under S. 116, the Collector is expected to issue a notice to the parties and after

hearing such of them as appear to determine the extent of la(sic)d to be sold, the lots if any in which it shall be sold, the order in which the lots shall

be sold and the estimated value of each lot and appoint an officer to conduct the sale. Under S. 117, the selling officer is expected to fix the date,

time and place of sale and direct a copy of the order to be posted in the taluk office and cause the contents of the order and the proclamation of

sale to be published by beat of drum in the village where the holding is situate and also post a copy of the order and of the proclamation of sale in

the village chavadi or in a conspicuous place in the village and send a copy of the order and of the proclamation of sale to the defaulter by post.

Sub-S. (2) of this section provides that in fixing the date of sale not less than 30 days shall be allowed from the date on which proclamation by beat

of drum was made as aforesaid. In the present case it is contended that as the date of sale was fixed at 18th August 1936 after the order of sale

was made on 23rd July 1936 it has contravened the provisions of S. 117 (2) of the Act. The argument on behalf of the appellant is, therefore, that

the sale held under provisions of the Act, in which the landholder became the purchaser of the suit holding, it is not one validly held under the

provisions of the Act in so far as it contravened two very important provisions of the Act (1) that the application for sale shall be made within 45

days of the posting by the Collector of intimation of service to the landholder and (2) that the sale should be held only 30 days after the date on

which publication of sale was made, Whatever may be said about the propriety of the application for sale made more than 45 days after the date

of intimation to the landholder of the service of notice on the defaulting ryot, I am of the opinion that the sale held before the expiry of 30 days after

the order for sale was made, is clearly in contravention of a very important provision of law. These provisions are made for the benefit of the ryot

so as to enable him to pay off the arrears of rent, if any, and I am of opinion that the provision in S. 117 (2) of the Act is mandatory and therefore

the sale held in contravention of that provision should be held to be a nullity with the result that no title passed to the landholder by the said sale. If

that is so, it would mean that the defendant has got no title in pursuance of the various transactions, by virtue of which he became the successor in

title of the landholder.

The next question is, whether the fact that the defaulting ryot made an application, as evidenced by Ex. B. 7 would, in any way, affect the

question of the plaintiff''s right to maintain a suit in respect of his title to this land. Ex. B. 7 shows that the defaulting ryot, Abdul Azeez, made an

application under S. 131 of the Act for setting aside the sale and it was returned as belated. S. 131 of the Act corresponds to O. 21, R. 89, C.P.

Code. There is no provision is the Act corresponding to O. 21, R. 90, C.P.C. Therefore, it is obvious that a ryot aggrieved by a rent sale held in

contravention of the provisions of the Act has a remedy available to him by resorting to the civil court to establish his continuing right in the holding

and that his title to it has not been lost as a result of the rent sale. In Mahalinga Naicker v. Vellaya Naicker 49 Mad. 490 it was held that a civil

court has jurisdiction to entertain a suit to set aside a sale held under O. 6 of the Madras Estates Land Act on the grounds of want of notice, of

absence of proclamation and of inadequacy of price, even though an application to set aside the sale under S. 131 of the Act had been made and

dismissed. Though in that case, the the learned Judges were concerned only with the question about want of notice, absence of proclamation and

inadequacy of price, I do not consider that decision as laying down that no other ground can be urged for holding that a sale held under the

provisions of the Act is not a valid one. As I already mentioned, I should consider that the failure to comply with the mandatory provisions of S.

117 (2) of the Act would vitiate the sale and it would be a nullity. The fact that an application made under S. 131 of the Act was not entertainable

on the ground that it was belated, would not, in any way, bar the defaulting ryot from questioning the sale. At this point I may probably mention

that objection was taken on behalf of the appellant to taking into consideration Ex. B. 7 on the ground that it is not a public document and that it

cannot be looked into. I am afraid I cannot agree with this contention. S. 215 Cl. (10) of the Act provides for registers being maintained of suits

and applications made under the Act. Indeed, even the very document on which the appellant relies, namely, Ex. B. 6 is itself an extract from such

a register. I cannot presume that registers contemplated by S. 215 Cl. (10) have not been prescribed. Both Ex. B-6 and B-7 are extracts from

registers presumably prescribed under that provision and they should be deemed to be public documents. Ex. B-7 should be deemed to be a copy

of a public document, and therefore validly admitted in evidence.

The result of the foregoing discussion is that the title of the ryot to the suit property was not lost in consequence of the rent sale held at the

instance of the landholder, in which he (landholder) became the purchaser. Therefore, it vests no title in the defendant. Then the further question

arises as to the proper disposal of this suit. The suit was for a declaration of the plaintiff''s title to the suit property and for an injunction. The trial

court as well as the lower appellate court have taken the view that on the date of suit the plaintiff was not in possession of the suit property.

Therefore, the appeal will be allowed in part and there will be a declaration of title in favour of the plaintiff. The relief of injunction cannot naturally

be granted. If and when the plaintiff files a proper suit for possession, the question whether it is in time, whether the plaintiff was in possession

within 12 years of suit or whether the plaintiff''s title has been lost by adverse possession and similar questions may have to be gone into. There will

be no costs in this second appeal. Leave granted to both parties.