KANDASWAMI NAICK Vs. PONNU NAICK ALIAS VEERAPPA NAICK

JUDGEMENT

(1.) Defendant 5 in the trial Court who was a purchaser of the suit properties from defendant 4 who, in his turn was again a purchaser from defendant 3, appeals to this Court aggrieved by the decision of the Subordinate Judge of Ramnad at Madura in A. S. No. 178 of 1945 on his file. It is seen that defendant 3 had purchased the tenancy rights in the properties at a private auction held by the manager of the Mannarkottai Zamin to which estate the land belonged, for arreas of rent due to the estate. It is alleged that the plaintiffs who were the occupancy ryots under the Manarkottai Zamin had defaulted in paying the rent and therefore for the realisation of the arrears of rent the tenancy right had to be sold. The rent sale took place on 18th January 1932. It was confirmed on 11th March 1932 and a certificate issued in favour of the Zamindar who bought in the lands on 30th April 1933. After the estate purchased the occupancy rights, patta was sought to be granted to the person who bid for the largest amount at a private auction held on 18th September 1933, The tenancy rights were purchased by defendant 3 at that auction, and, as has already been mentioned, the title by devolution ended in defendant 5 ultimately becoming the tenant. It is also found by both the lower Courts that the present plaintiff had knowledge of the sale at least as early as 1935, though he took nearly eight years to file the present suit out of which this second appeal has arisen,

(2.) The suit by the plaintiffs was for recovery of possession of the properties on the footing that as there were no arrears of rent due from them to the estate the sale and all the subsequent proceedings were null and void. Paragraph 7 of the plaint recited various negative facts, viz., the absence of any arrears of rent, the absence of any notice under Section 112, Estates Land Act, the absence of a sale under Section 114, and the absence even of the fact that the Collector had issued an order directing the sale.

(3.) The lower Courts have now found as a fact that the notice under Section 112 which should have been served in accordance with the provisions of Section 78 (2) of the same Act had not been properly served on the tenant. It is found that the Village Munsif who went to serve the notice issued by the Collector under Section 112, could not find the tenant at all. His wife when questioned was not able to give any specific information regarding his whereabouts and therefore the notice was affixed on the door of the house as well as on the property in dispute. On the basis of this service the landlord applied to the Collector under Section114 of the Act for directing the sale of the property. Under Section 116, the Collector appointed an officer to conduct the sale which was held under Section 117 with the result that defendant 3 purchased the property.