SYED GHOUSE SAHIB Vs. GMOHAMOOD KHAN SAHIB (DECEASED)

JUDGEMENT

(1.) The only question to determine in this appeal relates to the maintainability of the suit instituted under Section 56 of the Estates Land Act when pattas were not tendered to all the ryots who were in possession of a joint holding. The facts which led to this appeal are simple and may be briefly stated.

(2.) A patta was tendered on behalf of the plaintiff landholder to defendant 1; but he declined to accept the same. A suit S. S. No. 65 of 1931 was therefore brought by the landholder under Section 56 to enforce the acceptance of the patta against the first defendant alone. The suit was defended on various grounds, one of which related to the maintainability of the suit. It was contended that the land in respect of which the patta was being attempted to be enforced was a joint holding held by the first defendant along with certain other persons and that the suit could not proceed in their absence. This contention prevailed arid the suit was dismissed by the Deputy Collector of Dharmapuri. An appeal was taken against that decree of dismissal to the District Judge of Salem. But before it was heard a compromise was arrived at and a joint memorandum was presented on behalf of the parties. This was accepted by the District Judge and the suit was ordered to be remanded. The first paragraph of the order of remand passed by that officer reads as follows: In S. S No. 65 of 1931 the plaintiff should implead the other joint owners mentioned in the written statement and then proceed with the suit.

(3.) On the receipt of record by the trial Court, the joint owners mentioned in the written statement were impleaded by the plaintiff as defendants. On appearance before the Deputy Collector in obedience to the summons issued by him the latter urged that the suit was not maintainable against them as the pattas were not tendered to them before the institution of the suit. This fact was admitted but both the lower Courts overruled the contention. The other objection raised on behalf of the defendants was that of jurisdiction of the Revenue Courts to entertain a claim in regard to this holding. It was claimed to be a rent free service inam granted by Tippu Sultan for the up-keep of a mosque and as such not covered by the Estates Land Act. But, in view of the opinion that I have formed in regard to the first question, it is unnecessary for me to go into the second objection.