Vajapayajula Venkateswarlu and Another vs Regadimilli Veeraswami and Others

Leach, C.J.—The facts in this case are complicated, but they are not in dispute. The contest is with regard to their effect in law. At all times

material to the suit out of which this appeal arises defendant 2 and defendants 3 to 8 jointly held as landholders within the meaning of the Madras

Estates Land Act certain lanka lands measuring 217.32 acres. It was agreed between these defendants that defendant 2 should have the right of

managing the lands in faslis ending with an even number and that defendants 3 to 8 should have the same right in faslis ending in an odd number. In

fasli 1344 (1st July 1934 to 30th June 1935) plaintiff 1 was the tenant of the lands and it being an even fasli defendant 2 was lawfully in charge of

them. Plaintiff 1 failed to pay the rent due for that year and on 2nd June 1936 defendant 2 started proceedings u/s 112, Madras Estates Land Act,

which he had then the right to do. The amount due by plaintiff 1 in respect of rent was Rupees 993-12-0. On 30th June 1937, that is the last day

of fasli 1346 plaintiff 1 gave notice u/s 149 to all the co-landholders of his resolve to relinquish his tenancy. The notice served upon defendant 2

was admittedly received by him on 2nd July 1937. Within 30 days of the receipt of the notice served upon him u/s 112, plaintiff 1 instituted a suit

under Sub-section (2) contesting the right of defendant 2 to proceed with the sale. This suit was dismissed on 19th April 1937.

Defendants 3 and 4 had received notice u/s 112 of defendant 2''s intention to sell and they also filed a suit under Sub-section (2). They

maintained that they had been unjustly included in the notice and that the rent due to defendant 2 could be recovered by proceeding against the

holding and the defaulting ryot. As the result of their protest they were exonerated from the proceedings which were continued merely against

plaintiff 1 as the ryot concerned. On 3rd June 1937 the Deputy Collector passed an order for sale u/s 116. On 10th August 1937 plaintiff I filed a

memorandum saying that he had relinquished his interest in the holding u/s 149 and therefore he was no longer interested in the proceedings. On

18th August 1937 the Deputy Collector passed this order: ""The petition for relinquishment is time barred u/s 149, Estates Land Act. File with S.A.

No. 2 of 1346.

Second Appeal No. 2 of 1346 was the application filed by defendant 2 u/s 114 after plaintiff 1''s suit u/s 112(2) had been dismissed. The order

is difficult to understand as there was no question of limitation. Learned Counsel have not been able to throw any light upon the matter.

On 20th August 1937, defendant 3, on behalf of himself and defendants 4 to 8, filed an application purporting to be made under Order 21, Rule

58 and Section 151, Civil P.C., asking that the sale be stopped and all proceedings dropped. The basis of this application was that as the result of

plaintiff 1''s relinquishment of his tenancy there had been a merger within the meaning of Section 8(1). Pending the hearing of the application the

sale was stayed. In these proceedings plaintiff 1 filed a counter affidavit saying that he had unnecessarily been made a party because he had

surrendered his tenancy. By an order dated 5th October 1987 the Deputy Collector dismissed defendant 3''s application and cancelled the stay

order. By an order dated 29th October 1937 he ordered the selling officer to sell the holding before 24th December 1937. On 1st November

1937 the selling officer fixed the sale for 23rd December 1937.

On 13th November 1937 defendant 3 filed an application asking the Collector to revise the Deputy Collector''s order of 5th October 1937.

The Collector dismissed this application on 16th December 1937 and discharged an interim stay order which he had passed. On 27th December

1937 the Collector''s order was communicated to the selling officer, who thereupon fixed the sale for 18th January 1938. On 15th January 1938

plaintiff 1 asked the Deputy Collector to stay the sale on the ground that the proceedings were invalid because there was no pattadar. This was

dismissed by an order passed the next day. On 14th December 1987, that is, two days before the Collector dismissed his revision petition,

defendant 3 let Ramineedi Ranga Rao, the father of plaintiff 2, into possession. This was during fasli 1347 when defendants 3 to 8 were in

management of the property. The fact that Ranga Rao had been let into possession: was not known to defendant 2 until 22nd February 1938. The

sale was held on 18th January 1938 and defendant 2 purchased the kudivaram interest in the property. On 22nd February 1988 Ranga Rao

applied to the Deputy Collector for an order setting: aside the sale on the ground of irregularities in its conduct, but the petition was dismissed by

an order passed on 30th June 1938. On 31st October 1938, the Collector put defendant 2 in possession whereupon defendant 2 granted a

tenancy of the lands to defendant 1. The present suit was not filed until 6th April 1942. In the meantime Ranga Rao had died and his interest had

devolved upon his son, plaintiff 2. The two plaintiffs asked for a decree declaring that they were entitled to the kudivaram right in the lands, for

possession and for mesne profits. The Subordinate Judge dismissed the suit as regards plaintiff 1, but granted plaintiff 2 a decree declaring him to

be entitled to the kudivaram right and to possession of the property. His reasons for doing so were: (1) the sale of the holding was invalid by

reason of the relinquishment of the tenancy by plaintiff 1 and (2) there had been material irregularities in the conduct of the sale. The Subordinate

Judge rejected a plea advanced by defendants 1 and 2 that the suit was barred by the law of limitation. Defendants 1 and 2 have appealed.

By virtue of Section 149 every ryot has the right of relinquishing his holding or any part of it with effect from the end of a revenue year. The

relinquishment must be by a notice in writing signed by him. His right to relinquish is absolute, subject to his compliance with the formalities required

by the section and the right of the landholder to institute a suit before the Collector for indemnity against loss of rent for the revenue year next

following the date of the relinquishment, unless the tenant had given notice of his intention to relinquish before 1st April. Section 187(1)(f) expressly

states that the right of relinquishment can-not be taken away by a contract between the land holder and the ryot. Therefore plaintiff 1 undoubtedly

acted within his rights when on 30th June 1937, the last day of the revenue year, he gave notice of relinquishment to the proprietors of the land.

Admittedly, the notice complied with all the requirements of Section 149. That being the position, defendant 2 had no right to apply for the sale of

the holding. The kudivaram right of plaintiff 1 had vested in defendant 2 and defendants 3 to 8. In other words, there was a merger within the

meaning of Section 8. By reason of the relinquishment defendant 2 could, of course, not be deprived of his right to recover the rent for fasli 1344,

but his remedy was by way of suit u/s 77, and not otherwise. As the kudivaram right had vested in the landholders, there could be no other charge

in favour of them or any of there. In these circumstances the sale was invalid and therefore could not affect the rights of plaintiff 2 who at no stage

was made a party to the proceedings instituted by defendant 2 for the sale of the kudivaram right.

In view of this finding it is not necessary for us to consider whether the Subordinate Judge was right in holding that the sale was also vitiated by

irregularity in its conduct. It is, however, necessary to deal with the question of limitation. The argument for the appellants here is that the suit is

governed by Article 12(b), Limitation Act, which provides inter alia, that a suit to set aside a sale in pursuance of a decree'' or order of a Collector

or other officer of revenue shall be brought within one year from the date when the sale is confirmed or would otherwise have become final and

conclusive had no suit been brought. Sir Alladi Krishnaswami Aiyar on behalf of the-appellants has relied on the judgment Kamulammal v.

Chockalingam Asari AIR 1924 Mad. 278. It was there held by Phillips and Venkatasubba Rao JJ. that a suit to set aside a revenue sale after one

year after the expiration of thirty days from the date of sale was barred under Article 12(b), Limitation Act. In Subbayya v. Narayan Kristayya

AIR 1927 Mad. 488 Devadoss J., in Kootoorlingam Pillai v. Sennappa Reddiar AIR 1931 Mad. 724 Ramesam J., and in Satyanarayana v.

Rayalamma AIR 1943 Mad. 501 Abdur Rahman J. said in effect that a sale held in accordance with the procedure prescribed in Sections 111 to

131 does not fall within Article 12(b), because it is note held in pursuance of an order of the Collector, whose function was merely to direct the

selling officer to conduct the sale. Devadoss J. did not consider Kamulammal v. Chockalingam Asari AIR 1924 Mad. 278 but Ramesam J. did.

Abdur Rahman J. considered that Kamulammal v. Chockalingam Asari AIR 1924 Mad. 278 had been distinguished by Ramesam J. in

Kootoorlingam Pillai v. Sennappa Reddiar AIR 1931 Mad. 724 from the case before him. Although it was quite unnecessary for him to do so for

the purpose of deciding the case before him. Ramesam J. intimated that he was not prepared to accept the judgment in Kamulammal v.

Chockalingam Asari AIR 1924 Mad. 278.

We are not called upon to discuss the conflict because we are of the opinion that Article 12 (b) cannot be applied in this case for the reasons

given in Kader Husain v. Husain Sahib (1998) 20 Mad. 118 Jwala Sahai v. Masiat Khan (1904) 26 All. 346 and AIR 1935 139 (Privy Council) .

If we had been of the opinion that the suit fell within Article 12 (b), we should have followed Kamulammal v. Chockalingam Asari AIR 1924 Mad.

278 as being binding on us even if Section 116, Madras-Estates Land Act, had remained unamended. The section was amended in 1934 and the

amendment has negatived the opinion expressed by Devadoss, Ramesam and Abdur Rahman JJ. because Section 116 now expressly directs the

Collector to order the sale. In Kader Husain v. Husain Sahib (1998) 20 Mad. 118 a Full Bench of this Court held that Article 12(a) was not

applicable to a case in which dispossession was the cause of action and in which the plaintiff was not a party to, or bound by, the sale. The same

view was expressed by the Allahabad High Court in Jwala Sahai v. Masiat Khan (1904) 26 All. 346. In that case immovable property was sold as

the property of persons to whom it did not belong and the person to whom it did belong had no notice of the sale. It was held that the true owner

was competent to treat the sale as a nullity and to bring his suit for recovery of possession at any time within twelve years from the date when he

lost possession, This decision received express approval from the Privy Council in AIR 1935 139 (Privy Council) . The present suit was not one

for setting aside the sale. The suit was for the recovery of possession of property from defendant 1 on the ground that plaintiff 2 had been wrongly

dispossessed. As we have already pointed out, he was let into possession by defendants 3 to 8 when they were in lawful management of the

property. He was dispossessed on 3lst October 1938 when defendant 2 was given possession by the revenue authorities by reason of his

purchase at the sale held on 18th January 1938. The sale was illegal and therefore plaintiff 2 was wrongly dispossessed. As the suit was filed within

four years of the dispossession it was well within time. The appeal is dismissed with costs in favour of plaintiff 2 (respondent 2). The plaintiffs have

each filed a memorandum of cross-objections. These are not pressed and are dismissed with costs in favour of the appellants.