V.L.V. VENKATACHALAM CHETTIAR (DIED) AND ORS. Vs. THE PROVINCE OF MADRAS, REPRESENTED BY THE COLLECTOR OF TANJORE AND ORS.

JUDGEMENT

(1.) THE appellant, the plaintiff in the suit, was the owner 6f the inam village of Dalavapalayam in the Tanjore District. In proceedings instituted under the Madras Revenue Recovery Act of 1864 the village was sold for arrears of water cess and quit rent alleged to be due to Government. The purchaser was the second defendant. The attachment and sale had been ordered by the Revenue Divisional Officer. The plaintiff applied to the Collector under Section 38 of the Act for an order setting aside the sale on the ground of material irregularity in the publication and the conduct of the sale. By a,n order dated the 5th June, 1940, the Collector dismissed the application. On the 17th june, 1940, the plaintiff served upon the Provincial Government, the first defendant, a notice under Section 80 of the Code of Civil Procedure. On the 26th August, 1940, he filed the present action in the Court of the District Munsiff of Tanjore. In his plaint he alleged that he was under no liability to pay water cess and that he was not liable in law for arrears of quit rent. He also averred that the sale was illegal by reason of the defects in the publication and the conduct of it. The reliefs claimed by the plaintiff were a declaration that the sale and the demand for arrears of quit rent were ultra vires and an order cancelling the sale. The second defendant pleaded that the suit could not be maintained without a prayer for consequential relief. On the 19th June, 1940, by an order passed under Section 40 of the Madras Revenue. Recovery Act by the District Munsiff of Tanjore the second defendant was put into possession of the property. It was in these circumstances that the second defendant maintained that the plaintiff was bound by reason of Section 42 of the Specific Relief Act to sue for possession and stamp his plaint according to the value of the property. This plea was accepted by the District Munsiff who dismissed the suit without deciding any of the other questions raised on the pleadings. His decision was concurred in by the Subordinate Judge of Tanjore on appeal. The plaintiff has now appealed to this Court.

(2.) IN hearing an application under Section 38 of the Madras Revenue Recovery Act, the Collector is in reality sitting as an appellate Tribunal and any order passed by him on such an application is conclusive, subject to a suit being filed. Section 59 says that nothing contained in the Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under the Act, except as specifically provided, from applying to a Civil Court for redress, but it adds that the suit must be instituted within the six months from the time at which the cause of action arose. The right of suit given here corresponds to the right of suit given to a person aggrieved by an order under Rule 63 of Order 21, of the Code of Civil Procedure or by an order under Rule 103 of that order.

(3.) THE learned Advocate -General on behalf of the second defendant says that the fact that the plaintiff is suing for a general declaration that the Government had no power to collect water cess or arrears of quit rent takes the suit entirely out of Section 59. We are unable to accept this contention. The suit is clearly one under Section 59, but it contains an additional ground for relief. That in itself cannot bring the suit within the mischief of the proviso to Section 42 of the Specific Relief Act.