MUTHUVAIYAN Vs. SINNA SAMAVAIYAN

JUDGEMENT

(1.) The plaintiff sues to recover from the second defendant possession of certain lands, alleging that the same belong to him, having been purchased by him at a revenue sale in which they were sold on account of arrears of land revenue due to Government in respect thereof, that they were subsequently let to and put into the possession of the second defendant by the plaintiff but that the latter refuses to surrender them setting up a title in himself under a collusive purchase from the 1 defendant, a mere benamidar, in whose name certificate at the revenue sale was taken.

(2.) The finding of both the lower courts with reference to these allegations is in favour of the plaintiff. The suit was, however, dismissed by the District Judge who reversed the decree of the District Munsif, on the ground that the plaintiff was disentitled to rely on his being the real purchaser, with reference to the provisions of Secs.38 (clause 5) and 89 of the Madras Revenue Recovery Act, II of 1864.

(3.) Even if this view were correct, which it is not as will be shown hereafter, a decree should be given in favour of the plaintiff for the simple reason that the second defendant, having been let into possession by the plaintiff, was estopped from denying the latter's title without first surrendering possession. I do not, however, wish to dispose of the case in that way. The question of the construction of Secs.38 (caluse 5) and 39 has been fully argued on both sides; and having regard to the terms of the decision in Narayana Chettiar V/s. Chokhappa Mudaliar I.L.R., 25 M. 655 cited and relied on by the District Judge, it is necessary to go into that question.