CHACKO Vs. KOCHUMMAN

JUDGEMENT

(1.) Second appeal by the 6th defendant in a suit for recovery of property with arrears of pathivarom.

(2.) Ext. V is the instrument of melvaippapathivarom granted by Narayana Kurup on 3-6-1107, Plaintiff is an assignee of the property from defendants 2 to 4, who are the heirs of Narayana Kurup. It is conceded that the melvaippapathivarom is vested in the 1st defendant, as per an assignment of 6-4-1108 (Vide Ext. II). On 16-8-1114 part of the suit property 10 cents in S. No. 308/2 and 20 cents in S. No. 334/10-A was sold for arrears of revenue and purchased by the 5th defendant, the relative sale certificate being Ext. XIII. It was followed by delivery proceedings, evidenced by Ext. XIV, on 28-11-1117. Subsequently the 5th defendant has assigned the property to the 6th defendant, a son of the 1st defendant, as per Ext. XII dated 28-6-1118. The 6th defendant contended that the plaintiff has no title to the 30 cents of the property sold for arrears of revenue. That plea was accepted by the Munsif; but on appeal by the plaintiff, the Subordinate Judge remitted the suit for fresh disposal after investigating whether the purchase by defendants 5 and 6 were benami for the 1st defendant. The 6th defendant has come up in second appeal.

(3.) Even though the 6th defendant has been brought on record subsequent to the institution of the suit, neither the avertments in the body of the plaint nor the reliefs claimed therein have been amended to show he is interested in the subject matter of the suit or is liable to be called upon to answer the plaintiff's demand as required by R.5 of O.7 C. P. C. The evidence shows that the only interest that the 6th defendant has in the suit property is what he acquired under Ext. XII, that is to say, the interest conferred by the revenue sale. If the plaintiff wanted to attack the revenue sale he ought to have made the necessary prayer with the necessary grounds therefor in his plaint. Revenue sale is a quasi judicial proceeding made under a statute by statutory authorities. If it is to be set aside, the necessary averments have to be put forth clearly and the relief claimed. If that be not done, the revenue sale must stand. Though an impugnment was made that the revenue sale was fraudulent and void in the second replication filed by the plaintiff, nothing has been done to substantiate the same. Counsel for the respondent plaintiff in this Court urged that the sale certificate would show that the sale was for arrears of revenue due under Thandaper No. 81 that stood in the name of one Rama Kurup. Even so, there is nothing in the evidence on record to show that at the time of the revenue recovery proceedings which led to the instant sale the Thandaper for the suit properties was not No. 81 in the name of the said Rami Kurup, and if that be not shown positively I have to presume that the revenue sale has been duly conducted. The fact that the plaintiff's assignor was one Narayana Kurup and not Rama Kurup is neither here nor there in the matter. The revenue sale has been found valid by the Munsiff. The subordinate Judge on appeal has not found any invalidity therein, but has remitted the suit to find who has title under the revenue sale - whether it is the 1st defendant or the 5th or the 6th defendant.