AVUDAINAYAGAM PILLAI Vs. PITCHIAH CHETTIAR ALIAS PITCHIAH PILLAI

JUDGEMENT

(1.) THESE two second appeals raise questions relating to the validity of rent sales of ryots' holdings under chap. VI, Madras Estates Land Act of 1908. S. A. No 915 of 1946 is by the plaintiff against the judgment and decree of the Subordinate Judge of Tinnevelly in A. S. No. 112 of 1945 confirming the judgment and decree of the District Munsif's Court, Tenkasi in O. S. No. 205 of 1944. S. A. No. 981 of 1945 is filed by defendant 1 in O. S No. 206 of 1944 on the file of the District Munsif's Court, Tenkasi, against the judgment and decree of the Subordinate Judge in A. S. NO. 113 of 1945 reversing the decree of the District Munsif.

(2.) IN Kottayur village of Sivagiri Estate one Sundaram Pillai was a ryot holding patta NO. 406. It comprised amongst others S. No. 220 of the extent of 16 acres and 52 cents. The land -holder was the zamindar of Sivagiri. Sundaram Piliai had two daughters. In 1913 he gifted S. No. 220 to his son -in -law, one Kosalaram. There appears to have been a partition of the family properties amongst the sons of Kosalaram as evidenced by EX. P -2 dated 16th June 1928. By the partition arrangement the plaintiff's father got this property and after his death the plaintiff succeeded to it. It would appear that all along the patta had been standing in the name of Sundaram Fillai though he died somewhere about 1924. The transferee Kosalaram never got the patta transferred in his name. It does not appear that he intimated to the landholder the transfer by Sundaram Pillai. In 1933, for arrears of rent of Fasli 1341 the landholder gave notice of the intended sale of the ryot's holding under Section 112. This is evidenced by Ex. P -6. It reads as follows: 'Sundaram Filial, son of Arunachalam Piliai, ryot and pattadar No. 406 of No. 10 Kottayur village, Sivagiri zamin is informed that a sum of Rs. 87 -8 -1 is due from him by way of arrears. Unless the above amount is paid within 30 days after the date of the receipt of this notice or unless a claim is lodged before the Collector objecting to the right of sale, the holding mentioned In Col. 7 noted below herein will be sold.' This notice was sent for service on the party and the endorsement of service reads as follows : 'On enquiry made about the person mentioned in the notice (it is found) that he died. His heir is not present in the locality. Hence it has been affixed to the outer door of the house of the above person No, 406.' The sale notice EX. P -6,(a) dated 16th September 1933 under Section 117 of the Act, is signed by the Revenue Divisional Officer who fixed the date, time and place of the sale also. The sale officer conducted the sale on 25th October 1933 and the property was bought in by the landholder. It would appear that in 1939 the property purchased was assigned to defendant 1 in O. S. No. 206 of 1914 who is the appellant in S. A. No. 981 of 1946. The holding covers two acres now identified as S. NO. 220/A.1. Again in 1934, the landholder initiated proceedings under Section 112 of the Act for alleged arrear of rent for Fasli 1342. The notice is Ex. P -3 dated 29th September 1934. That also is in terms similar to the earlier notice, EX. P -6 and informs Sundaram Pillai of the existence of the arrear and the sale proceedings initiated. The property that was proposed to be sold was two acres in another portion of 3. No. 220 being the western portion in S. No. 220/A -2. This notice Ex. P -3 was returned with the endorsement: 'The addressee mentioned herein died. His proper heir is not present in the locality. Hence the notice issued in the name of the above person has been affixed on the outer door of the house where he resided. Another copy has been suspended by a rope tied to the stick fixed in the land under attachment. Another (copy) has been affixed to the front portion of the Pillayar temple, a public place in the village. It has been published also by tom tom.' The sale notice under Section 117 was settled andsigned by the Revenue Divisional Officer, Koilpatti, who fixed the date, time and place of the sale. The warrant appointing the selling officer is EX. P -3 (b) and the sale was actually effected on 17th February 1936 to one Kandaswami Chettiar who subsequently sold it to defendant 1 in O. S. No. 205 of 1944. The plaintiff instituted the suit for recovery of possession of the properties sold in the two rent sales on 5th May 1944. According to the plaint, the plaintiff was the owner of the properties and without any notice to him the sales had been effected behind his back in an illegal manner and contrary to the provisions of the Madras Estates Land Act. The plaint attacks these sales as invalid, and treating them as nullities the plaintiff wants to recover possession of the properties from the persons in possession thereof namely defendant 1 in each of the cases. Defendant 2, the landholder has been impleaded because he is interested in supporting the rent sales in question.

(3.) I may, however, dispose of one or two minor contentious raised, before I deal with these two important questions which have been raised and fully argued before me. It was first urged that the plaintiff Avudainayagam Pillai had himself been recognised as ryot by the land -holder and the sales without notice to him would therefore be invalid. The lower Courts have found on the evidence that there was no such recognition of Avudainayagam Pillai as ryot by the landholder, and as admittedly, neither Kosalram nor Avudainayagam Pillai had given any intimation to the landholder of the change of ownership from Sundaram Pillai to Kosalram the plaintiff was not entitled to be treated as a ryot. This argument therefore fails. One contention that was raised by the respondents was that even if the rent sales should in law be invalid for any reason the plaintiff had no locus standi to file these suits objecting to the sale. It was urged that neither he nor his predecessor having given any notice to the landholder it was only Sundaram Pillai or Sundaram Pillai's heirs that can object to the sale. Reliance was placed on Irulappa v. Veerappan, (1921) 42 M. L. J. 113 : A. I. R. 1921 Mad. 637. I cannot agree with this contention as the plaintiff was the person who was the owner of the holding. It may be that the landholder was entitled to proceed against the registered pattadar in the absence of any notice from the transferee. This does not however amount to a denial of the plaintiff's ownership of the ryoti holding, and if the property of which he is the owner and in possession is taken away from him in pursuance of an alleged rent sale under the Act he is certainly entitled to complain of that wrongful dispossession and file a suit for recovery of possession. The decision in Irulappa v. Veerapan, (1921) 42 M. L. J. 113 : A. I. R. 1921 Mad. 637 does not bear on this point. That only decided that a defendant who had an opportunity of contesting the right of suit under Section 112 on grounds which he could have raised as for instance the non -tender of a patta to him, etc., as required by Section 53 of the unamended Act, now Section 77 (a) after amendment of 1934, and who has not so filed the suit before the Revenue Court cannot plead the invalidity of the sale, in civil proceedings later on. I find the decision in Ponnusami v. Annakamu Servai : AIR1940Mad439 by Wadsworth J. is directly applicable to the facts of the case. I therefore repel this contention.