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Judgment
197 paragraphs · 5,011 wordsN.S. Ramaswami, J.—These two appeals under the Letters Patent are against the judgment of Alagiriswami, J., in Second Appeal No.
1776 of 1964. The plaintiff in the suit is the appellant in L.P.A. No. 83 of 1969, while the defendant in the suit is the appellant in L.P-A. No. 34 of
1969. The suit out of which these Letters Patent Appeals arise is one for declaration of title and for injunction in respect of a land measuring seven
grounds in extent situate in the estate known as Puliyur Shrothriyam. It was a ryoti land and one Abdul Azeez was the ryot. He was in arrears of
payment of rent due to the then landholder of the estate in which the land was situated and for the said arrears, the land had been sold under the
provisions of the Madras Estates Land Act, 1908, hereinafter referred to as the Act. That sale was as early as 1936. The landholder had himself
purchased the holding in the said sale. Later, the landholder as the purchaser of the land had sold the same to a third party and after some
intermediary sales, the defendant in the suit has purchased the same.
Abdul Azeez, the ryot who had allowed the land to be sold, filed an application u/s 131 of the Act for setting aside the sale but the same had
been dismissed as belated. However, the said Abdul Azeez claiming to be the owner of the land, sold the same in favour of a third party. After
some intermediary sales, the plaintiff in the suit has purchased the land from the vendee under the said Abdul Azeez. Thus the plaintiff claimed title
to the land through Abdul Azeez, formerly the ryot of the land, and the defendant claimed title through the landholder who had purchased the land
in the sale held under the provisions of the Act. The Courts below have concurrently held that the plaintiff had no title to the property. They also
held that the plaintiff was not in possession of the property. Thus the suit came to be dismissed. In the second appeal filed by the plaintiff,
Alagiriswami, J., took the view that the sale under the provisions of the Act under which the land-holder himself had purchased the land is a nullity
and that therefore the plaintiff who claims the land through the ryot has title to the land. However, the learned Judge accepted the finding of the
Courts below that the plaintiff was not in possession of the land on the date of suit and therefore he was not entitled to the relief of injunction
against the defendant. The learned Judge gave only a decree declaring the plaintiff''s title to the suit property and observed that ''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 twelve years of suit or
whether the plaintiff''s title has been lost by adverse possession and similar questions may have to be gone into''. The appeal by the defendant
L.P.A. No. 34 of 1969 is against the decree granted by the learned Judge declaring the plaintiff''s title to the property. L.P. A. No. 83 of 1969
filed by the plaintiff is on the contention that the learned Judge ought to have decreed the suit in its entirety holding that the plaintiff was in
possession of the property on the date of suit and that he was entitled to not only the relief of declaration of title but also the injunction.
The main question argued in these two appeals is whether the sale held under the provisions of the Act is void as held by the learned Judge. To
appreciate the controversy,'' the facts relating to the sale and the relevant provisions in the Act have to be noted. u/s in of the Act, the land-holder
is given a right to sell the holding or any part thereof for arrears of rent. Sections 112 to 120 relate to the procedure to be followed in such sales.
u/s 112, the land-holder to whom the arrear is due and who wants to avail himself of the powers given u/s 111, shall serve on the defaulting ryot a
written notice giving the particulars about the arrear. Such notice has to be given through the Collector and the same should inform the defaulter
that if he does not pay the amount mentioned in the notice or institute a suit before the Collector, contesting the light of sale, within 30 days from
the date of service of the notice, the holding will be sold. In the present case, the land-holder did exercise his right u/s III and serve a notice on the
ryot through the Collector u/s 112. The date of the notice is 13th March, 1936 and it has been served or the ryot (Abul Azeez) on 19th March,
1936 as seen from Exhibit B-6, the Register of Land Attachments and Sales.
u/s 113 of the Act, the Collector through whom notice u/s 112 is served on the ryot, has to give intimation of such service to the land-holder.
Such intimation had been given in the present case on 26th March, 1936. Section 114 provides that if the defaulter does not pay the arrear in spite
of service of notice u/s 112 and also does not institute a suit, the land-holder can file an application to the Collector for sale of the holding. The
section also provides that if the ryot had filed a suit contesting the right of the land-holder to sell the land and if in such suit it has been declared that
the ryot is liable to pay the amount in whole or in part, then also the land-holder can file the application for sale. Section 115 prescribes the period
of limitation for application u/s 114.
Sub-section (1) of Section 115 says that if the ryot had not filed any suit contesting the right of the land-holder to sell the holding, then the
application for sale shall be made by the land-holder within forty-five days of the date of service contemplated u/s 113 Sub-section (2) of Section
115 prescribes the period of limitation for filing the application for sale in a case where the ryot has filed a suit as contemplated u/s 112. In the
present case, admittedly the ryot did not file any suit contesting the right of the land-holder to sell the holding for the arrears claimed. Therefore
only Sub-section (1) of Section 115 is relevant for the present purpose. As per that provision the application for sale ought to have been filed
within forty-five days from 26th March, 1936, title date on which the intimation of service of notice on the ryot had been given to the land-holder
as contemplated u/s 113. But the application for sale in this case had been filed by the landholder only on 15th June, 1936 which is a date beyond
the period of limitation of forty-five days. One of the contentions on behalf of the plaintiff, who challenges the sale under the provisions of the Act is
that the application for sale having been made beyond the period of limitation prescribed u/s 115 (I), the Collector to whom the application had
been made had no jurisdiction to proceed further in the matter and that therefore the sale held subsequently is ab initio void.
There is yet another contravention of the provisions of the Act in conducting the sale. u/s 116 of the Act, the Collector who receives the
application for sale (under Section 114) shall appoint an officer to conduct the sale. u/s 117, the Officer so appointed who is to be the selling
officer shall fix a date for sale and cause it to be proclaimed by beat of drum etc. Sub-section (2) of Section 117 says that in fixing the date of sale,
not less than thirty days shall be allowed from the date on which proclamation is made. In the present case, the proclamation had been made on
25th July, 1936 and the sale had been held on 18th August, 1936. This is in contravention of Section 117 (2), for, in fixing the date of sale, the
minimum period of thirty days from the date of proclamation had not been allowed.
The learned Judge who heard the second appeal had held that this contravention, namely, the contravention of Section 117 (2), makes the
proceedings a nullity and therefore the sale under the provisions of the Act was wholly void. The learned Judge, however, did not hold that the
contravention of Section 115 (1), namely, the provision prescribing the period of limitation for filing the application for sale, made the proceedings
a nullity. The learned Judge observed:
Whatever may be said about the propriety of the application for sale made more than forty-five days after the date of intimation to the land-holder
of the service of notice on the defaulting ryot, I am of the opinion, that, the sale held before the expiry of thirty 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 Section 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 land-holder by the said sale.
Before considering the correctness or otherwise of the above view of the learned Judge, we would dispose of the contention raised on behalf of
the defendant regarding the maintainability of the suit. The contention is that because of the provisions of the Act, the civil Court had no jurisdiction
to entertain the suit out of which the present appeals have arisen. However, we are of the opinion that this contention has no merit. u/s 189 of the
Act, only suits and applications of the nature specified in Parts A and B of the Schedule which can be brought before the Revenue Court, are taken
out of the jurisdiction of the civil Court, Surely, a suit for declaration of title and injunction is not one specified in Part A or Part B of the Schedule
to the Act. It is to be noted that in the present suit, the plaintiff has not even asked for setting aside the sale on the ground of illegality. If the sale is
ab initio void (and not merely voidable) there is no need for having the sale set aside. In such a case, the plaintiff can ignore the sale and ask for
other reliefs. He need not even ask for a declaration that the sale is void. Whatever that be, a suit either for a declaration that a sale under the
provisions of the Act is void or a suit for setting aside such sale on the ground of illegality is not one provided under Part A or B of the Schedule to
the Act and therefore in respect of either of such suits, the civil Court''s jurisdiction is not ousted.
The fact that the ryot filed an application u/s 131 of the Act for setting aside the sale and that the said application had been dismissed does not
make any difference regarding the question whether the civil Court has jurisdiction to entertain the present suit or not. Admittedly Section 131 of
the Act is similar to Order 21, Rule 89 of the Code of Civil Procedure. It cannot be disputed that there is no provision in the Act similar to Order
21, Rule 90 of the Code of Civil Procedure. The fact that the ryot applied u/s 131 of the Act (by depositing the arrears due) which application
came to be dismissed, has nothing to do with the question that the ryot has a right to file a suit in the civil Court to have the sale set aside on the
ground of material irregularity amounting to illegality, much less in respect of a suit in which the sale under the provisions of the Act is treated as
void. Chidambaram Filial v. Muthammal I.L.R.38 Mad. 1042 Rajah of Ramnad v. Venkatarama Iyer ILR 45 Mad. 890 and Mahalinga Kaicker v.
Vellayya Naicker ILR 49 Mad. 490 support the above view.
At one stage, the learned Counsel for the defendant contended that even a suit to set aside the sale on the ground of material irregularity
amounting to illegality is one coming u/s 189 of the Act and that therefore the civil Court has no jurisdiction to entertain such a suit. The learned
Counsel referred to items 27 and 28 in Part B of the Schedule to the Act and contended that while item 27 relates to an application u/s 131 of the
Act, item 28 relates to an application to set aside a sale generally. The contention is that under item 28, there is no need for the applicant to make
the deposit as contemplated u/s 131 of the Act, for, such a situation is provided for under item 27 and that, therefore, item 28 should relate to an
application to set aside a sale not covered by Section 131 of the Act. The argument proceeded, that because item 28 in Part B of the Schedule
covers an application to set aside a sale on the ground of material irregularity amounting to illegality (as in the case of Order 21, Rule 90, Code of
Civil Procedure) Section 189 of the Act would be attracted and that the civil Court''s jurisdiction to entertain the present suit is barred. The
argument is wholly untenable and fallacious on two grounds. First of all the present suit is not one to set aside the sale on the ground of illegality.
The plaintiff has proceeded on the looting that the sale was ab initio void and if he can prove such a case he can ignore the sale and need not ask
for setting it aside. The mere fundamental error in the argument is to construe item 28 of Part B as one outside the scope of Section 131 of the Act.
In column 2 of Part B, the section of the Act under which the application is to be made is mentioned. It is to be noted that both against items 27
and 28 only Section 131 of the Act is mentioned. Item 27 does not relate to an application to set aside a sale u/s 131 of the Act, and it is only for
depositing the necessary sum for the purpose of setting aside the sale, for which the period of limitation is prescribed as forty-five days. It is under
item 28 the period of limitation for filing, an application to set aside a sale is prescribed. There can be no doubt that the application contemplated
under this item is only one u/s 131 of the Act and not otherwise, for, as already mentioned, in column 2, the section is mentioned as 131. Items 27
and 28 read together would show that the defaulter whose holding has been sold can deposit the sum within forty-five days of the date of sale and
the period of limitation to file an application Do set aside the sale (after making such deposit) is before the grant of a certificate of sale.
Undoubtedly there is no provision in the Act for filing an application before the revenue Court to set aside a sale without depositing the defaulted
sum and contending that the sale had been vitiated by material irregularity amounting to illegality. Therefore, it is clear that the civil Court''s
jurisdiction to entertain a suit to set aside a sale under the provisions of the Act, outside the scope of Section 131 of the Act is not ousted.
The learned Counsel for the defendant contended that the decisions reported in Chidambaram Pillai v. Muthamma ILR 38 Mad. 1042, Rajah
of Ramnad v. Venkata Rama Iyer ILR 45 Mad. 890. and Mahalinga Naicker v. Vellayya Naicker I.L.R.49 Mad.490, have to be understood in
the light of the decision reported in Munisami v. Narasappa AIR 1941 Mad. 539. and according to the learned Counsel, the subsequent Full
Bench decision referred to above would show that in the present case, the civil Court has no jurisdiction. This is again wholly untenable. In the case
before the Full Bench in Munisami v. Narasappa AIR 1941 Mad. 539. a notice u/s 112 of the Act had in fact been served on the defaulter. As
already seen, on such service of notice, any person having an interest in the holding would have a right of suit before the Collector contesting the
land-holder''s right of sale. In the case before the Full Bench, what happened was that in spite of service of notice u/s 112 of the Act, the defaulter
did not file any suit before the Collector contesting the right of the landholder to bring the holding to sale. Therefore, the Full Bench observed at
page 544:
When he was served by appellant-4 with a notice u/s 112 the proper course if he wished to contest the right of sale of the A schedule lands was
for respondent 1 to file a suit in the revenue Court....
He refrained, however, from taking this course and so far as the A schedule lands are concerned, he cannot challenge the validity of the sale in a
civil Court.
It should be noted that in the case before the Full Bench the question was not whether the sale was vitiated by any illegality and on that score it was
ab initio void. The question was whether a ryot who has failed to contest the right of the landholder to bring the holding to sale by filing a suit
before the Collector, can agitate such question in the civil Court. The Full Bench pointed out that that question was one falling within the exclusive
jurisdiction of the revenue Court and that, therefore, Section 189 of the Act would bar the jurisdiction of the civil Court. Therefore this decision has
no application at all to the facts of the present case.
The substantial question that was argued before us is whether the noncompliance of some of the provisions of the Act made the sale ab initio
void or whether the sale was only voidable. While the contention on behalf of the plaintiff is that the sale was ab initio void as the Collector had no
jurisdiction to sell the holding, the contention on behalf of the defendant had been that at the worst, the non-compliance of some of the provisions
of the Act would only amount to an illegality which would entitle the affected party to have the sale set aside. The contention is that the plaintiff in
this case cannot treat the sale as wholly void and ignore the same and bring a suit for declaration of title.
Even though the above question was argued at considerable length, it appears to us that the question is really academic, for, we are of opinion
that in either case whether the sale is ab initio void or is only voidable the plaintiff has necessarily to fail. If the sale is only voidable, the person
affected by the sale (Abdul Azeez, the ryot) ought to have filed a suit in the civil Court to set aside the sale within one year of the date of the sale,
under Article 12 (6) of the Limitation Act of 1908. (Whatever be the position prior to the amendment of the Act in 1934, u/s 116 as amended, the
sale is ordered by the Collector and Article 12 (b) of the Limitation Act of 1908 clearly covers such sale). No such suit having been filed, the
present suit is barred. Even assuming that the revenue sale is ab initio void and the plaintiff and his predecessors-in-title can ignore the same, the
plaintiff has not established his title to the suit property. It is true that if the revenue sale is void, the defendant''s predecessor-in-title, namely,
Janakirama Pillai, the landholder who purchased the holding in the revenue sale, did not get title to the holding and the title remained with Abdul
Azeez, the ryot; but from the facts of the case there can be no doubt that the title of Abdul Azeez has been lost by the law of limitation. The first
appellate Court has given a clear finding that in pursuance of the sale which is evidenced by Exhibit B-6, Janakiraraa Pillai, the purchaser, took
delivery of the holding as evidenced by Exhibit B-II. The application by Abdul Azeez, the ryot, u/s 131 of the Act to set aside the sale was
dismissed on 2nd January, 1939. The finding of the learned First Appellate Judge is that even before the dismissal of that application, Janakirama
Pillai, the purchaser, had taken delivery of the property which he purchased in the sale held under the provisions of the Act. That means Abdul
Azeez had been dispossessed of the property. The above finding of the learned First Appellate Judge has not been disturbed by the learned Judge
who heard the second appeal. Under Article 142 of the Limitation Act of 1908, a suit for possession of immovable property has to be instituted
within 12 years from the date of dispossession. Abdul Azeez having been dispossessed as early as 1938, neither Abdul Azeez nor his successors-
in-interest including the plaintiff can successfully claim that they have still title to the property. u/s 28 of the Limitation Act of 1908 on the expiry of
the period of 12 years from the date of dispossession as prescribed under Article 142, the title of Abdul Azeez and his successors-in-interest
would get extinguished. There is no dispute that the provisions of the Limitation Act of 1908 would be applicable to the present case, the suit
having been instituted very much prior to the coming into force of the Limitation Act of 1963. Even if the suit had been instituted subsequent to the
coming into force of the Act of 1963, it would not make any difference, for, if by the operation of the provisions of the Limitation Act of 1908, the
plaintiff''s title had been extinguished even prior to the coming into force of the Limitation Art of 1963, the mere fact that the suit has been instituted
subsequently would not give the plaintiff any better right.
Therefore, even if we accept the view of the learned Judge that the sale in this case is ab initio void and a nullity, we are unable to see how the
plaintiff can be granted a decree for declaration of his title to the suit property. The mere fact that the title of Abdul Azeez had not been lost by the
revenue sale (on the footing that the sale was void) does not mean that the plaintiff is entitled to a declaration of his title to the property. Before the
plaintiff can get such a decree he has to establish that as on the date of suit he had title. If the plaintiff does not show that himself and his
predecessors-in-title had been in possession of the property within 12 years prior to the institution of the suit, he cannot hope to get a declaration
of title. As already seen, the clear finding of the first appellate Court is that Abdul Azeez, the original owner of the land had been dispossessed by
Janaki Rama Pillai, the purchaser in the sale held under the Act, as early as 1938. It is also the finding of the Court below that the plaintiff was not
in possession of the land on the date of suit. Under such circumstances, whether the sale is void or only voidable, the plaintiff should necessarily fail
in the present suit. It has to be remembered that the declaration that is prayed for in the present suit is not that the sale is a void one, but it is one in
respect of title. Therefore, even if the finding that the sale is void is correct the plaintiff is not entitled to a decree declaring his title to the property.
Now coming to the question whether the sale is void or only voidable, it was already noticed that there was infringement of the provisions of
the Act in two respects. The first is that the application for sale by the landholder was beyond the period of forty-five days prescribed u/s 115 (1)
of the Act. The learned Judge who heard the second appeal has not held that this infringement of the provisions affected the sale. However, on
behalf of the plaintiff it is contended, on the basis of the decision reported in Sri Alluri Satyanarayana and Another Vs. Ramineedi Rayalamma and
Another, that the Collector had no jurisdiction to order the sale as the application by the landholder for sale had not been received within the
period of 45 days prescribed in subsection (1) of Section 115 from the date of intimation of service. In that case, Abdur Rahman, J., was of the
view that under the provisions of the Act before the amendment of 1934 (which applied to the facts of that case) the Collector was acting only as
agent of the landholder and that therefore if the landholder had not filed the application for sale within the time prescribed the Collector would not
have jurisdiction to proceed further. Even if the above view of the learned Judge that under the provisions of the Act, as it stood before the
amendment of 1934 the Collector was acting only as the agent of the landholder is correct, the position is different after the amendment. u/s 116 as
it originally stood, the only duty cast on the Collector was to receive the application from the landholder for sale and to appoint an officer to
conduct the sale. He had no other function regarding the sale of the holding, but u/s 116 as amended, which amended provision is applicable to the
present case, the Collector is the authority who shall determine the extent of the land 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 to order the sale after hearing the parties. As this amended provision makes it
clear that it is the Collector who is to order the sale, it cannot be now contended that the Collector is acting only as an agent of the landholder. It is
true that u/s III, it is stated that it shall be lawful for the landholder to sell the holding. However, when that section is read with the other provisions
of the Act, it is clear that the landholder himself is not given the power to sell the holding but he has only a right to bring the holding to sale. It is the
Collector who has the right to order the sale after, hearing the parties. Abdur Rahman, J. has himself pointed out the difference between Section
116 as it stood before the amendment of 1934 and the amended provision. It is clear that the learned Judge has taken the view that the Collector
was acting only as the agent of the landholder and that therefore he had no jurisdiction to proceed further unless the application for sale by the
landholder is within the period of limitation prescribed u/s 115, only because, in that case, Section 116 as it stood before the amendment, was
applicable. From the observations of the learned Judge it appears to us that if the amended section is applicable, he would not have taken the said
view.
Section 115 only prescribes the period of limitation for filing an application for sale. It is incorrect to say that that section confers jurisdiction on
the Collector to order the sale. It is Section 116 which confers such jurisdiction on the Collector. If the Collector, in exercise of his jurisdiction u/s
116 was prepared to condone the delay in filing the application for sale and decides to proceed further in the matter it cannot be said that he was
acting without jurisdiction.
The learned Judge who heard the second appeal, as already pointed out, has also not held that the infringement of Section 115 (1) of the Act
in the application having been made beyond the period of forty-five days made the sale a nullity. We have no hesitation in rejecting the present
contention of the learned Counsel for the plaintiff in this respect.
We are unable to agree with the view of the learned Judge who heard the second appeal that the infringement of the provision contained in
Section 117 (2) makes the sale ab initio void. As already seen, under the said provision in fixing the date of sale not less than thirty days should be
allowed from the date on which publication of the sale had been made. In this case, admittedly only less than thirty days had been allowed.
Therefore, this provision has in fact been infringed but the question is whether such infringement makes the sale ab initio void. The sale could be
held to be void or a nullity only if the sale had been held without jurisdiction. Otherwise, even if a provision of law is transgressed it would be only
a material irregularity or illegality. A sale held in transgression of a provision of law may be hit by illegality but it cannot be said that the sale is
without jurisdiction. Rubinstein on ''jurisdiction and Illegality'', 1965 Edition, at pages 4 and 5 observes as follows:
The primary question to be dealt with by this book is this: Assuming an act is illegal and assuming it can properly be reviewed, how does the
illegality affect its validity?