(UNDE RAJAHA ROJE SRI RAJA VELUGOTI GOVINDA KRISHNA YACHENDRA BAHADUR VARU PANCHAHAZAR) THE RAJAH OF VENKATAGIRI Vs. KOLA SUBBAYYA

JUDGEMENT

(1.) The first point urged in this second appeal is that the plaintiff s suit is barred by limitation. The defendant served a notice on the plaintiff under Section 112 of the Estates Land Act on 28th July 1920. On 27th August 1920 the plaintiff filed what he called an answer petition before the Revenue Divisional Officer of Gudur who returned the petition and directed the plaintiff to file a plaint. The plaint was filed on 6th September 1920. The defendant s contention is that the suit is barred by limitation. The Deputy Collector held that the so-called answer petition dated 27th August 1920 was the plaint and that the suit was within time. The learned District Judge also held that the answer petition was practically a plaint and that the Deputy Collector was right in treating it as such. It is now contended before me that the Deputy Collector had no power to treat the petition as a plaint. It appears from the records that the plaintiff was misled evidently by what the defendant s agent had done. He purported to serve on the plaintiff a notice under Section 112. From the written statement filed by the defendant, it appears that there was a distraint and that the distraint was proper. If there was a distraint it must have been under Section 67 of the Estates Land Act. Evidently there was some error, somewhere, and that evidently misled the plaintiff into thinking that there was a suit against him which he was bound to answer. In the circumstances I do not think the Court is prevented from treating the petition as a plaint. No doubt, under the Rent Recovery Act, a different procedure was followed and an ordinary petition could not have been treated as a plaint. But under Section 112 of the Estates Land Act, the tenant has either to pay the rent due to the landlord or to file a suit within 30 days from the date of the service of notice; and if the tenant files what he wrongly calls a petition in answer to the notice issued, that petition should not be considered as a mere petition, but should be considered as a plaint. In the Revenue Courts, a plaint is presented on a eight annas stamp paper. In this case the plaintiff did present a stamp paper of more than eight annas in value with his petition. No doubt he thought he was filing a written statement and he filed batta for summonses to the witnesses. Subsequently he wanted that amount to be treated as the stamp on the plaint. The Deputy Collector has, I think, properly exercised his discretion in the matter and treated the petition as a plaint. I do not think he has wrongly exercised his discretion, and the learned District Judge has also held that the Deputy Collector has wisely exercised his discretion. I do not think that the contention that he has not the power to exercise a discretion in a matter like this can be upheld. Evidently the wrong notice issued by the defendant under Section 112 was responsible for the filing of the plaintiff s petition. Even if the plaintiff had not boon misled, I think, in the circumstances, it would be proper for a Court to treat the petition as a plaint, for the petition was presented in answer to the notice under Section 112.

(2.) The next contention for the appellant is that the lower Courts should have found the proper rent for the use of water by the plaintiff. The defendant claimed Rs. 7-8-0 for the use of water per acre. That was an exorbitant claim; and the lower Courts have held that he is not entitled to that. The question before me now is whether the lower Courts should be directed to determine what the proper amount is for the use of water by the plaintiff. The plaintiff offered to pay in his petition of the 27th August 1920, Rs. 2 per acre. There is a judgment of the Revenue Divisional Officer, Isuda in Revenue Suit No. 77 of 1916, in which he held that the proper amount of water rate payable was Rs. 2. That suit was no doubt between the defendant and some other tenant of this village. Notwithstanding that, the defendant chose to claim Rs. 7-8-0. The question, therefore, is whether his notice under Section 112 can be held to be good. The learned vakil for the appellant relies upon Raghunth ROW v. Vellamoonji Gounden (1915) 38 Mad. 1140. In that case it was held that under Section 53(2) of the Estates Land Act, a distraint by the landholder was good to the extent of the legitimate claim. But that case has no application to the present case; for in that case the question was whether the distraint was wholly bad by reason of the patta tendered containing some improper terms. The learned Judges held that under Section 53 the distraint was good to the extent of the amount legally due. But under Section 112, when the landlord tries to bring the holding of the tenant to sale, he cannot have the holding sold except for the amount legitimately due. If he claims a larger amount and brings the property to sale, he cannot be heard to say : "No doubt I have made too high a demand; but the sale ought to be good to the extent of the amount properly due." If the notice under Section 112 is not a proper notice then no sale can be held under Section 112. A distraint stands on a different footing. The tenant does not lose his right to the property as soon as a distraint is made, but if the holding is sold, it cannot be got back by the tenant unless the sale is set aside. No doubt Section 53(1) also relates to the sale of a holding under chapter VI. Clause 2 specifically refers only to a case of distraint. That being so, it cannot be considered to mean that if a portion of the rent claimed is improper the landlord can be permitted to sell the holding under Section 112. He can bring about the sale under Section 112 only if his claim is a good one. If his claim is not a good one, the tenant has the right to file a suit against the land-holder. It is open to the defendant in this case to seek his proper remedy based on a claim which the Court would consider legal and proper. But, where the clime is illegal, the landlord is not entitled to sell the property of the tenant and say that the sale is good to the extent of the legitimate claim.

(3.) In the result the second appeal fails and is dismissed with costs.