RAJU GOUNDAN Vs. KUPPU GOUNDAN

JUDGEMENT

(1.) The suit out of which this second appeal arises was instituted by the plaintiff for possession of the suit properties on the ground that he purchased them from one Subba Reddi who purchased them at a rent sale. The suit lands are comprised in Morappathangal village which belongs to two Mokkasadars, Sundararaja Rao Saheb and Ramachandra Rao Saheb. They owned and possessed the same in two undivided halves. From the evidence in the case it appears that these two Mokkasadars were issuing separate pattas to the same tenant each for his undivided half: vide the evidence of P.Ws. 1 and 2. The pattas mention the entire survey numbers which are owned by the two mokkasadars jointly and the amount of rent which the various survey numbers will have to bear and the total rent, and in the end it is stated that the amount due in respect of the pattadar's half is Rs. 19-4-7. For arrears due to Sundararaja Rao Saheb as per the patta issued by him for fasli 1331 the suit properties were brought to sale and were purchased on 28 November 1923 by one Subba Reddi. He conveyed the suit properties by a sale deed dated 25 July 1927 to the plaintiff. When he proceeded to take possession he was obstructed by defendants 1 and 2 who are the tenants of the suit land. They are the brothers of Muruga Goundan since deceased, in whose name the patta was issued. The defendants impeach the rent sale as invalid on various grounds, namely that there was no proper notice or publication, that the sale was not effected by both the mokkasadars and that in any event the sale could not convey more than the undivided moiety which belonged to Sundararaju Rao Saheb and the plaintiff is not entitled to recover possession of the entire land.

(2.) The learned District Munsif who tried the suit held there was proper notice and publication but that under the rent sale only half the undivided share in the various items of the suit lands passed to the purchaser and the plaintiff is entitled to possession only of the undivided half. The learned Subordinate Judge reversed the decision holding that the entire lands must be deemed to have been sold and gave a decree in favour of the plaintiff. It is contended in appeal that the rent sale was invalid on the ground that no notice was given by both the mokkasadars, nor was the property brought to sale at the instance of both the mokkasadars and in any event the undivided moiety only could have passed under the rent sale.

(3.) There can be no question that under the Estates Land Act, if there is more than one landholder all the joint landholders must concur in enforcing the rights or remedies provided under the Act. Therefore, the question arises, is it open to one of the joint landholders to bring the properties jointly owned by him or any portion thereof to sale under Secs.111 and 112, Estates Land Act ? In Srinivasa Varadachariar V/s. Swami Reddi , it was held that though a joint owner is not entitled to sue for proportionate rent, if parties agree to accept and pay proportionate rent according to shares, there is nothing illegal in it and that an owner of 5- 15/18 share in a shrotriem village was held entitled to tender a patta for his 5-l/8 share. This decision there-fore seems to assume that it is open by agreement between the several joint holders and the ryot to apportion the rent payable to each landholder and that in respect of each landholder there can be tender of pattas and muchilikas with reference to that share. If therefore there can be apportionment of rent and separate exchange of pattas and muchilikas and they can be enforced in a Court of law, it stands to reason that all the other remedies should also be available. Is there anything in the Estates Land Act to prevent such a thing being done ? Holding is defined in Section 3(3), Estates Land Act, as a parcel or parcels of land held under a single patta or engagement in a single village provided that the landholders and ryots so agree in writing that any portion of a holding as above defined shall be treated as a separate holding. Under a corresponding section of the Bengal Tenancy Act there was a conflict of opinion before the Act was amended recently as to whether the undivided share would form the subject of a holding. The reason assigned for the view that it could not be was that a parcel of land is a land defined by metes and bounds and consequently a share in a parcel of land cannot be deemed to be a parcel of land within the meaning of the definition of the? term holding.