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Madras High Court
Aiyya Mudali Velalan vs Sourimuthu Odayan And Anr. on 16 February, 1927
Equivalent citations: 103 Ind Cas 851, (1927) 53 MLJ 222
Author: Jackson


Jackson, J.

1. Plaintiff bought certain land under Section 124, Madras Act (1 of 1908). When he attempted to take possession the 1st defendant the ryot whose holding was sold obstructed him. Hence the suit. The first defendant pleaded that the sale was irregularly conducted. The issue 2 (b) was accordingly framed. Was the rent sale held regularly and properly as required by law? In para. 8 of his judgment the District Munsif found that there was no irregularity, in fact nothing specific was alleged. On appeal the Subordinate Judge propounded to himself an issue whether the landlord had tendered a patta as required by S. S3 of the Act. He was fully aware that this issue was not raised by the defendant, because for that very reason he refused the 1st defendant his costs. In any case the suit would have to go back for an amendment of the written statement and a fresh trial upon the new issue of fact, and it is amazing that the Lower Appellate Court did not realize this before pronouncing final judgment.

2. But it is first necessary to determine whether a ryot upon whom notice is served under Section 112, and who institutes a suit contesting the landlord’s right of sale, and fails in that suit, can bring another suit under the Civil Procedure Code pleading the same defect in the landlord’s right. Of course there is no question of res judicata. The ordinary civil jurisdiction will only be barred, if at. all, under Section 189 of the Act read with Part A of the Schedule. A suit to contest the right of sale of a holding under Section 112(Item 12 in Schedule A) is triable under Section 189 by a Collector, and no Civil Court shall take cognizance of any matter in respect of which such suit might be; brought. Whether a patta had been tendered is a matter in respect of which a suit might be brought under Section 112. But the respondent maintains the extreme view that a ryot may bring a suit upon that matter under Section 112, fail, and after the sale of the property, bring another suit upon the same matter, because the suits are so far different that in one suit he sues to prevent, and in the other suit to cancel, a sale, although otherwise both suits proceed upon the same cause of action. He relies upon Rajah of Ramnad v. Venkataramaiyer (1922) ILR 45 M 890 at 899 : 43 MLJ 264 (FB). The reference to the Full Bench in that case is very wide.

3. Has a Civil Court jurisdiction to entertain a suit by a ryot to set aside a sale of his holding which was held under the provisions of Chapter VI of the Madras Estates Land Act. The Full Bench noted the argument that a suit under Section 112 might attract the mischief of Section 189 so as to bar the jurisdiction of the Civil Court, and observed that the suit out of which the reference arose was nothing of the kind; because in that case no notice as required by Section 112 had ever been given. The question resolved itself into one whether a ryot who alleged that his holding had been unlawfully sold, and had never been given an opportunity of availing himself of a remedy under the Act could sue in the ordinary Civil Courts. “That being so” the Bench answered the reference in the affirmative. Therefore this ruling is not authority for the very question which it propounded but did not answer, whether the fact that a remedy lay by summary suit to prevent the sale would bar a subsequent civil suit to set it aside.

4. On the facts of the present case, Irulappan Servai v. Veerappan (1921) 42 MLJ 113 is clear authority against the contention of the respondents. This is the case mentioned by the referring Judges in Rajah of Ramnad v. Venkataramaiyer (1922) ILR 45 M 890 at 897 : 43 MLJ 264 (FB).

5. I therefore find that the defendants had no valid defence on this point under Section 53, even if they had raised it which they did not do.

6. The judgment of the learned Munsif is restored with costs throughout. The decree of the Lower Appellate Court is reversed.

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