PONNUCHAMI CHETTI Vs. ANNAKAMU SERVAI

JUDGEMENT

(1.) This appeal raises the question of the right of a person, who is interested in land but is not the registered pattadar thereof, to bring a suit in the Civil Court to declare a sale held under Section 112 of the Estates Land Act to be invalid and to obtain an injunction protecting his possession. The essential facts of this case are that the two items in suit were originally acquired under an insolvency sale by one Solaimalai who let the plaintiff into possession under an agreement to sell. Solaimalai's title ceased by reason of a sale for arrears of rent. The purchaser in the rent sale was one Muthuveerappa who under a private arrangement with the plaintiff allowed the plaintiff to retain possession of the land, though the patta was in Muthuveerappa's name. In 1931 there was a sale for arrears of rent of one of the items which was bought in by the Zamindar, the fourth defendant here. In 1933 there was a similar sale of the other item which also was purchased by the Zamindar. After each of these purchases the plaintiff applied to the Zamindar for patta which was eventually refused and the Zamindar in 1934 granted patta for both numbers to defendants 1 and 2. Thereafter there was trouble about the harvesting of crops and magisterial orders recognised the right of defendants 1 and 2 to the harvest. But it has been found that the plaintiff continued in possession up to the time of suit. That finding is one of fact and though it is true that the learned appellate Judge makes a mistake with reference to certain payments of kist made by the plaintiff there are no grounds upon which I could hold that the finding of fact does not bind me in second appeal. It has also been found as a fact that with reference to both the rent sales, which the plaintiff attacked, there was no personal service, no proper attempt to effect personal service and no proof of any valid affixture. As a result of these findings the lower appellate Court decreed the plaintiff's suit. The appellants are defendants 1 and 2 the rival claimants and the fourth defendant the Zamindar.

(2.) It must be conceded on the findings of fact that, though the plaintiff's title anterior to the rent sales may have been defective, he was in possession with the permission of the registered pattadar and had a right to hold possession against any one other than the true owner. It is well established that a suit will lie in the Civil Court for a declaration that a sale held under Section 112 of the Madras Estates Land Act is invalid for want of service of notice, which is an essential preliminary to the validity of such a sale. It is strenuously contended by Mr. Venkatarama Sastri for the appellants that such a suit will not lie at the instance of any one other than the person who was entitled to have notice of the sale, that is to say, the registered pattadar. The contention is that a mere occupant who has not been recognised by the landholder has no right to be included in the formalities of a sale under Section 112 and that provided the registered pattadar acquiesces in the sale as one carried out with a sufficient degree of formality, it does not lie in the mouth of the person whose presence on the land has been tolerated by the registered pattadar to question that sale on technical grounds. There is a long series of decisions of this Court to the effect that when a sale is held without due notice as prescribed under Section 112 that sale is invalid. There are decisions to the effect that such a sale is a nullity, the question having arisen usually with reference to limitation. It seems to me unnecessary for the purpose of this case to decide whether a sale which, so far as the Court was concerned, was attended with all due formalities is merely voidable as the result of the failure by the Court's process server to do that which he purports to have done, or whether such a sale would be an absolute nullity which would bind nobody at all. I am, however, of opinion that when a sale is bad for want of proper service of notice, there is nothing either in the Estates Land Act or under the general law to prevent any person who has an interest in the land which is adversely affected by the sale, from challenging that sale in the ordinary Civil Courts and protecting his interest. Numerous cases have been cited before me dealing with suits to declare such a sale to be invalid. So far as I am aware there is no case in which the right of a person interested who is not the registered pattadar to bring such a suit has been denied. There is one decision of a single Judge Seetharama Naidu v. Govindaswami Chettiar (1925) 23 L.W. 149, in which the right of suit by a person other than the registered pattadar has been recognised and an unreported decision (S.A. No. 538 of 1936) has recognised such a right of suit at the instance of a person who though not the registered pattadar had applied to the landholder under Section 146 for recognition. The point seems to me to be this. A suit such as that with which we are dealing is not a suit under the Madras Estates Land Act, which for certain purposes declines to recognise anybody other than the registered pattadar, though for other purposes it recognises persons having an interest who are not the registered pattadars. The present suit is a suit under the ordinary law to protect the rights of a person having an interest in land, which rights are threatened by the alleged illegal act of an authority purporting to act under the colour of the law. Ordinarily speaking when the law gives to a public authority a power to invade the rights of a private individual, it is incumbent upon the public authority to observe those formalities which are prescribed by the law investing it with the powers. If private rights are invaded without the observance of those^ formalities which are prescribed, the person whose interest is adversely affected by this invasion has a right of suit. This right of suit is not confined to persons with a perfect title to the property which is threatened. Provided that they have such an interest in the property as the law will protect, it can supply the basis for a suit to resist an invasion of that right under the colour of the law, when the law has not actually been followed. Merely because this is a suit to contest the legality of a sale under the Madras Estates Land Act it cannot to my mind be contended that the suit can only be brought by the person who is a registered pattadar. There is no analogy with suits brought under that Act and the plaintiff is not seeking a remedy provided under that Act. He is suing for the protection of his rights as a person having a possessory title which under the ordinary law the Courts will protect from unauthorised invasions. That title is threatened by a sale purporting to have been held under the powers conferred by Section 112 of the Estates Land Act. The plaintiff is entitled to come to the Court, prove his possessory title and show that the sale which purports to have been a sale under this special law has not been carried out in accordance with that law and therefore can convey no title to the purchaser. It seems to me therefore that the decision of the lower appellate Court is correct and that the plaintiff's suit must succeed on the findings.

(3.) In the result the appeal is dismissed with costs of the plaintiff-first respondent.