KANDASWAMI NAICK Vs. PONNU NAICK ALIAS VEERAPPA NAICK

JUDGEMENT

(1.) The fifth defendant in the trial Court, who was a purchaser of the suit properties from the fourth defendant who, in his turn was again a purchaser from the third defendant, appeals to this Court aggrieved by the decision of the Subordinate Judge of Ramnad at Madura in A.S. No. 178 of 1945, on his file. It is seen that the third defendant had purchased the tenancy rights in the properties at a private auction held by the manager of the Mannarkottai Zamin to which estate the land belonged, for arrears of rent due to the estate. It is alleged that the plaintiffs who were the occupancy ryots under the Mannarkottai Zamin had defaulted in paying the rent and therefore for the realisation of the arrears of rent the tenancy rights had to be sold. The rent sale took place on 18 January, 1932. It was confirmed on 11 March, 1932, and a certificate issued in favour of the Zamindar who bought in the lands, on 30 April, 1933. After the estate purchased the occupancy rights, patta was sought to be granted to the person who bid for the largest amount at a private auction held on 18 September, 1933. The tenancy rights were purchased by the third defendant at that auction, and, as has already been mentioned, the title by devolution ended in the fifth defendant, ultimately becoming the tenant. It is also found by both the lower Courts that the present plaintiff had knowledge of the sale at least as early as 1935, though he took nearly eight years to file the present suit out of which this second appeal has arisen.

(2.) The suit by the plaintiffs was for recovery of possession of the properties on the footing that as there were no arrears of rent due from them to the estate the sale and all the subsequent proceedings were null and void. Paragraph 7 of the plaint recited various negative facts, viz., the absence of any arrears of rent, the absence of any notice under Section 112 of the Estates Land Act, the absence of a sale under Section 114 of the Act, the absence even of the fact that the Collector had issued an order directing the sale.

(3.) The lower Courts have now found at a fact that the notice under Section 112 which should have been served in accordance with the provisions of Section 78(2) of the same Act had not been properly served on the tenant. It is found that the village munsif who went to serve the notice issued by the Collector under Section 112 could not find the tenant at all. His wife when questioned was not able to give any specific information regarding the whereabouts and therefore the notice was affixed on the door of the house as well as on the property in dispute. On the basis of this service the landlord applied to the Collector under section,114 of this Act for directing the sale of the property. Under Section 116 the Collector appointed an officer to conduct the sale which was held under Section 117 with the result that the third defendant purchased the property.