MERLA VEERAMMA, ZAMINDARINI VELANGI, REPRESENTED BY GENERAL POWER-OF- ATTORNEY HOLDER, N RAMAYYA Vs. VILLURY RAMANNA

JUDGEMENT

(1.) This second appeal has been placed before a Bench for hearing as two judgments of this Court which have bearing on the question of law involved are in conflict. The first was delivered by Venkataramana Rao, J., in Subbarayulu V/s. Arunachala Nadar and the second by Wadsworth, J., in Appanna Sastri V/s. Raja Sobhanadri .

(2.) Before turning to the law we will state the facts. On the 30 October, 1937, in S.S. No. 82 of 1937 filed in the Court of the Deputy Collector, Kowur, under the provisions of Section 77 of the Madras. Estates Land Act the first defendant obtained a rent decree against a pattadar. By three sale deeds dated the 18 August, 1937, 7 September, 1937 and 29th March, 1938, respectively, the plaintiffs purchased portions of the land covered by the patta. Notice of the sales "was duly given to the landholder under Section 145(2) of the Act. On the 7 February, 1939, the first defendant applied for execution of the decree but he gave no notice of the application to the plaintiffs. The lands purchased by the plaintiffs from the original pattadar were attached and on the 28 August, 1939, were sold in public auction. The purchaser was the second defendant. The plaintiffs then filed in the Court of the District Munsiff of Kovvur the suit which has given rise to this appeal. They pleaded that the second defendant had bought the lands as their benamidar and that the sale was invalid for want of notice to1 them of the execution proceedings. The defendants averred that the second defendant was their benamidar, that notice to the plaintiffs was not necessary inasmuch as they had knowledge of the execution proceedings and that they were estopped from questioning the validity of the sale as the first plaintiff was present at the auction.

(3.) The District Munsiff held that the second defendant was the benamidar for the first defendant and that the sale was void for want of notice, but the plaintiffs by their conduct were estopped from questioning its validity. Consequently he dismissed the suit. The plaintiffs appealed to the Subordinate Judge of Ellore. He held that the sale was illegal for want of notice to the plaintiffs and that they were not estopped from questioning the validity of the sale. On these findings he decreed the suit. The defendants have appealed.