Singaravelu Pillai vs Board of Revenue and Another

Bardswell, J.—The petitioner has applied for a writ of certiorari with a view to quashing the proceedings of the Board of Revenue by which

respondent 2 in this petition was appointed to the office of karnam. The Zamindar of Ariyalur appointed the petitioner as karnam on 2nd January

1929. The petitioner was an outsider with no mirasi right. In 1932 two suits were brought u/s 13, Madras Act 3 of 1895, with a view to obtaining

the post of karnam. One of these suits was brought by respondent 2 and the other was brought by his brother. In accordance with the provisions

of Rules 24-A and 27 of the rules framed by the Board of Revenue u/s 20 of the Act, as to the procedure in suits, the present respondent 2 was

joined as defendant in the suit brought by his brother. After this had been done, he withdrew his own suit without obtaining permission to bring a

fresh suit. The suit by his brother was then heard by the Deputy Collector of Ariyalur who gave a decree not in favour of the plaintiff but in favour

of the present respondent 2. Against this decree there was an appeal by the present petitioner, and on appeal the District Collector gave a decree

to the present petitioner. There was then a further appeal to the Board of Revenue by respondent 2. That there is such a right of appeal is made

clear by the proviso to Clause 1, Section 23 of the Act. The Board of Revenue set aside the decree of the District Collector and restored that of

the Deputy Collector by which respondent 2 was appointed karnam.

It is contended for the petitioner that when a suit is brought in this way for any village office the only decree that can be given is either one

dismissing the suit or one in favour of the plaintiff. It is pointed out that respondent 2 has withdrawn his own suit and had come to be only in the

position of a defendant; and it is argued that even if it was found that he had a better right to the office than the plaintiff no decree (could be given in

his favour. On the other hand it is argued by the learned Government Pleader and by the learned advocate for respondent 2 that it is competent for

a Court in a suit of this kind not. only to decide which of the parties, even if that party be the defendent, has the best right to the post but also to

give a decree to the person whom it finds to have the best right. In favour of these contentions attention is'' called to Rules 24-A, 27, 39 and 45-A

of the rules framed by the Board of Revenue. By Rules 24-A and 27 it is proved that the plaintiff shall join as defendants all persona whom he

knows or has reason to believe are nearer heirs than himself to the office, and Rule 27 allows the Collector to return a plaint if this provision is not

complied with. It is in accordance with that Rule 24-A that respondent 2 was added as a party defendant to the suit that is now under notice. By

Rule 39 a person who has been cited as a defendant under Rule 24-A or Rule 34-A, which is another provision as to adding persons having

superior claims, must make a statement in writing renouncing his claim to the office or oppose the claims of the other parties-by establishing the

superiority of his own.

By Rule 45-A it is provided that if such person renounces his claim to the office or fails to oppose successfully the claims of the other parties,

such person shall be precluded from subsequently filing a suit for the same office. With reference-to these provisions it is contended that the Court

that tries suits of this nature-can decide once for all between the claims of the several parties and give a decree to the person found to have the best

right. There is however no provision which says that a decree in favour of any other party can be granted, and in-the ordinary course one would

suppose that the proper decree should either be to allow the suit or to dismiss it. I do not think it necessary for me to give a definite

pronouncement now upon this point. It has been held by a Full Bench of this Court in Lakshmanan Chettiar v. Corporation of Madras AIR 1927

Mad. 130 that an objection of such a kind should be raised as early as possible. I am not satisfied that the objection was raised in the first Court,

i.e., in the Court of the Deputy Collector. Rather am I led to suppose that the contrary was the case. Respondent 2 no doubt must have bean

under the impression that he would get a decree in the suit brought by his brother. That must be the reason why he withdrew his own suit, though

of course if he made a mistake in so leaving his position in that manner that cannot help him. But as it seems to me it was not merely what was the

impression of respondent 2, but it was the attitude of all the parties, that the matter should be adjudicated upon once for all and a decree given to

the person who was found to have the best right to the office. This I take to be the case from the wording of issue 3 which runs thus:

If not, who among them, if any, is entitled to succeed and be appointed to the office.

There is no issue as to what relief the plaintiff was entitled to Issues must have been framed in the ordinary course with the consent of all the

parties and so I take it that when the present petitioner agreed to this issue he was prepared to have a decree granted in favour of any party found

entitled thereto whether that party was the plaintiff or one of the defendants. It is indeed pointed out that in para. 6 of the memorandum of appeal

to the District Collector the point was taken that a decree should not have been given to a party defendant. But it does not appear that this point

can have been argued before the Collector. It is not at all touched upon by the Collector in his judgment while the decree granted by the Collector

is not one dismissing the suit but one granting the office to the present petitioner who is himself a defendant. Had the objection on this point been

pressed by the pleader for the petitioner the same result would have been arrived at by dismissing the suit in which case the petitioner who was

then defendant 2 would have remained in his office. My view then is that as this objection was not taken at the earliest stage it cannot be

considered now.

Another point that has been taken is one of limitation. Taking it that this question of limitation can be now argued, I do not think that the

petitioner can succeed upon it. The issue as to it in the first Court ran as follows : ""Is this suit not barred by limitation?"" And it is clear from para. 8

of the first Court''s order, which deals with this issue, that the matter was considered with reference to the date of the petitioner''s appointment and

the date when the suit was brought. It is now contended for the petitioner that the suit was barred so far as the claim of respondent 2 is concerned

in that when respondent 2 was joined as a defendant more than three years had elapsed since the appointment of the petitioner. I cannot allow this

new point of limitation to be taken at this stage and so I do not propose to discuss it. The learned advocate for the petitioner argues that the point

could not be taken in the first Court as his client was not aware that there was the prospect that a decree could be given in favour of one of the

defendants. In view of what I have said above, I cannot agree with his contention.

Finally I would observe that the granting of a writ of certiorari is a matter for the Court''s discretion. The decision of the Board of Revenue has

resulted in a member of the mirasi family being appointed to the office of karnam, whereas the petitioner has no mirasi right whatever. In the result

the petition fails and is dismissed with costs one set. The fee will be Rs. 150.