KANAKKU GOVINDA PILLAI SANKARA PILLAI Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the decree dismissing his suit for cancellation of an order passed by the Government setting aside a revenue sale. For realization of arrears of land revenue, in respect of properties belonging to Madathu Tarwad, 26 cents in S. No. 329/5 was sold on 26. 5. 1114 and was purchased by the plaintiff for a sum of Rs. 4 chs 7. The sale was confirmed on 6. 8. 1114. The 1st defendant applied to the Government on 25. 2. 1120 for cancellation of the order confirming the sale and in exercise of the revisional jurisdiction under S. 50 of the Travancore Revenue Recovery act, the sale was set aside. The plaintiff's case is that this property belonged to Arakathu Devaswom which had demised it on Kanom to Madathu Tarwad. One Arathan Pillai Kumara Pillai was the Karnavan of that Tarwad at the time of the revenue sale and he was the person whose name was entered in the Thandaper accounts relating to this property. The sale was conducted after due notice to kumara Pillai. The plaintiff obtained sale certificate and delivery of possession in due course. According to the plaintiff, the order cancelling the sale is liable to be set aside as the reasons relied on by the Government are incorrect. He accordingly sued for cancellation of the order Ext. C and for an injunction restraining the 1st defendant from recovering possession of the property from him. The 1st defendant contended that the Madathu Tarwad had lost the Kanom right and possession long before the date of the revenue sale, as the Kanom right was sold in execution of the decree in O. S. No. 228 of 1074 of Trivandrum munsiff's Court which was a suit instituted by the Devaswom for recovery of dues from Madathu Tarwad. Pursuant to the sale, the Devaswom obtained possession of the property and thereafter it was demised on Kanom to him on 13. 7. 1101. During the minority of the 1st defendant his mother had mortgaged his property with possession to one Raman Nadar. Although Madathu Tarwad thus lost title and possession of the property mutation of names in the revenue records was not effected and the property continued to remain in the name of arathan Pillai Kumara Pillai. At the time the proceedings under the Revenue recovery Act were taken, Madathu Tarwad had no interest in the property. The notices preceding the revenue sale were not properly served and the reasons given by the Government for cancellation of the order confirming the sale are valid. It was also stated that the plaintiff had not obtained possession pursuant to the revenue sale. The 2nd defendant, the State of Travancore-Cochin , supported the 1st defendant. The lower court held that Madathu Tarwad had lost title to and possession of the property by reason of the execution proceedings in O. S. No. 288 of 1074 and that the demand notice issued to Kumara Pillai was not proper as his tarwad had lost title and possession by that time. It was also held that the demand notice was not served on Kumara Pillai and that the irregularities mentioned in the order of Government were valid grounds for setting aside the sale. It was further held that the plaintiff was not competent to impeach the said order. As regards possession of the property, inconsistent findings were entered. While it was held in Para. 9 of the judgment that the possession was with the 1st defendant it was held in Para. 16 that the plaintiff was in possession. The property was found to be 26 cents in extent. The suit was accordingly dismissed.

(2.) THE main question for decision is whether the order ext. B dated 12. 7. 1946 is liable to be set aside. THE petition Ext. C was filed by the 1st defendant for cancellation of the sale on 25. 2. 1120. This is long after the date of the sale and about four years after the 1st defendant attained majority. S. 50 of the Revenue Recovery Act which provides for revision does not prescribe any period of limitation. THE order cannot therefore be set aside on the ground that the petition for revision was belated. THE reasons supporting the order Ext. B are: (1) That notice of demand was not issued to a person who had subsisting right over the land at the time of the sale; (2) That the service of notices was irregular, and (3) That the sale was vitiated by fraud. It is contended on behalf of the appellant that all these grounds are unsustainable.

(3.) THE 1st Respondent has preferred a memorandum of cross-objections relating to two findings against him. One such finding is that the plaintiff was in possession of the property, pursuant to the revenue sale and delivery. It was conceded that this finding has no bearing on the decision of the main question as to whether the revenue sale was conducted illegally. THE finding cannot be said to be totally wrong in view of the statement in the written statement of the 1st defendant that he was entitled to recover possession from the plaintiff. We do not see any reason to interfere with this finding. THE other point raised in the memorandum of cross-objections is that the lower court should have found that the extent of the property was 62 cents and not 26 cents. All the records relating to the revenue sale including Ext. W, a petition filed by the 1st defendant before the Tahsildar, show that the extent of the property sold was only 26 cents. This finding also does not call for interference.