DOODALA RUDRAYYA Vs. RAJAH SAHEB MEHARBHAN I DOSTAN SREE RAJAH RAVU VENKATA KUMARA MAHIPATHI SURYA RAO BAHADUR GARU SARDAR, RAJAHMUNDRY CIRCAR AND MAHARAJAH OF PITHAPURAM

JUDGEMENT

(1.) THE respondent in this second appeal obtained a decree for arrears of rent due in respect of holding No. 88 in the village of Somapara in the Pittapur estate in L. S. No. 251 of 1938 on the file of the Deputy Collector, Coconada, against the appellant and others and in execution of this decree, an extent of one acre and 24 cents in that holding was brought to sale as property belonging to the present appellant and it was purchased by the respondent on the 26th October, 1941. The respondent and his alienee (the sixth defendant) were prevented from obtaining possession of the property and on the allegation that there was a trespass by the defendants subsequent to the delivery, the respondent brought a suit out of which the present appeal arises for recovery of possession of the entire property from defendants 1 to 5 and 7 to 9.

(2.) THOUGH the entire extent of one acre and 24 cents was described as belonging to the appellant, it is now common ground that one acre of that extent belongs to defendants 2 to 5 and only 24 cents belong to the first defendant (appellant). The District Munsiff of Coconada found that defendants 2 to 5 had not been served with any notice of execution; in fact the property had been brought to sale as the property of the first defendant. He therefore held that the sale was void in respect of the one acre of land belonging to defendants 2 to 5 but he found the sale to be valid in respect of the 24 cents belonging to the first defendant and granted a decree against him in respect thereof. There was an appeal by the first defendant and the learned Subordinate Judge has confirmed the decision of the District Munsiff. This second appeal is by the first defendant.

(3.) THERE is very little of authority on this question. The case in Thayammal v. : (1935)69MLJ850 , appears to be the nearest in point. In that case the plaintiffs were entitled to a fourth share in the holding while defendants 1 to 3 were entitled to the remaining shares. The entire holding was sold for arrears of rent; but the plaintiffs were not served with notice of the sale. Defendants 1 and 2 were personally served with notice of sale. On these facts the Courts below set aside the sale in respect of the entire extent. The auction purchaser preferred a second appeal to this Court. It was contended by him that the sale must be set aside only as regards the plaintiffs' shares and not in its entirety, and this contention was accepted by Varadachariar, J. No doubt in that case defendants 1 to 3 had not only not prayed for the setting aside of the sale in respect of their shares but they had even prayed that the plaintiffs' suit should be dismissed with costs. The learned Judge characterises their conduct or misconduct as being dishonest, but I do not consider that his decision rests on this circumstance only. The learned Judge repels the argument that service of notice under Section 112 is a matter going to the jurisdiction of the selling officer and, if all the necessary pre -requisites had not been complied with, he must be held not to have any jurisdiction, and it must follow that the entire sale is invalid. The learned Judge modified the decree of the Courts below by setting aside the sale so far as the plaintiffs' share is concerned. He incidentally relied on certain observations of Ramesam, J., in Kootoorlingam Pillai v. : AIR1931Mad724 . These observations were no doubt obiter but support the view taken by the learned Judge.