BHAVARAJU VENKATASUBBA RAO Vs. GARAPATI CHINA KANAKAYYA

JUDGEMENT

(1.) The ryot is the appellant. He filed a suit under section 95 (1) of the Madias Estates Land Act (Madras Act I of 1908) before the Deputy Collector, Eluru, questioning the distraint of 3 paddy heaps by the respondent-landholder on 15th January, 1943, for recovery of arrears of rent due for fasli 1351 on holding No. 32 of Amrutalingampeta village. Both the Deputy Collector as also the District Judge of West Godavary at Eluru held that the landholder tendered a valid patta and that the distraint was in accordance with the provisions of she Estates Land Act. The Second Appeal was filed in 1950 as against the judgment of the District Judge.

(2.) Two questions are raised by Sri N.C.V. Ramanujachari, learned advocate for the appellant : (i) that no valid patta was tendered and that the distraint was consequently illeaal and (ii) that by reason of the passing of Madras Estates (Abolition and Conversion into Byotwari) Act of 1948 (Act XXVI of 1948) and the application of the Act to the village and the payment of rent by the appellant under section 55 of the said Act for faslis 1356 and 1357, the arrear of rent for fasli 1351 must be deemed to have been completely discharged, with the result that no distraint proceedings could be validly initiated by the landholder.

(3.) There is no substance in the first contention. Both the Courts below held that the sale deed stood in the name of the appellant and his brother and that the respondent rightly tendered the patta in favour of both the appellant and his brother. It was also found that the respondent was not aware of the partition that took place between the appellant and his brother. The question as to whether the respondent had knowledge of the partition and as to whether there was any mala fides on his pait in tendering the patta in favour of the appellant and his brother, is a pure question of fact. As both the Courts below concurrently found against the appellant. I am not prepared to permit the appellant to canvass the correctness of the finding of fact in the Second Appeal. The learned advocate for the appellant sought to rely upon the terms of Ex. P-15 for fixing the respondent with knowledge of the partition in the appellant's family. The finding of fact is not vitiated and cannot be challenged on the sole ground that one of the several documents as, for example, Ex. P.-15 in this case, has not been specifically refened to by the appellate judge in his judgment, I accept the finding that a patta was validly tendered by the respondent and that the distraint was consequently valid. Even assuming that the patta was not validly tendered in favour of the appellant's brother who had no subsisting interest by reason of the partition still under the terms of section 77-6 of the Madras Estates Land Act, the tender of the patta to the appellant would be valid and binding in so far as his interest is concerned. Section 77-B is in the following terms :- "A patta tendered by a landholder which. is partially but not entirely correct shall nevertheless be enforceable to the extent to which it is found to be correct."