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Madras High Court
R. Parasurama Gownden And Ors. vs Sowcar Lodd Govinda Doss Krishna … on 16 August, 1912
Equivalent citations: 16 Ind Cas 903
Bench: S Aiyar, S Aiyar


1. This is a suit by a tenant in the Nowlac Estate (we use the word ‘estate’ in the popular sense) to set aside a distraint made by the 1st defendant, who is admittedly the propreitor, for rent due for the Fasli year 1317. The distraint was made in January 1909. The estate is exempt from the payment of Government revenue and it is admitted that both the kudivaram and the maharam belong to the proprietor. The distraint was objected to on several grounds before the Revenue Divisional Officer. He upheld one of the objections, namely, that the 1st defendant was not the registered proprietor under Section 134 of the Estates Land Act and set aside the distraint. On appeal by the 1st defendant, the judgment of the first Court was reversed and the suit dismissed. The only point decided by the District Judge was whether the 1st defendant was the registered holder of land in proprietory right under Clause 2, Section 134. He held that he was. The learned Vakil for the appellant wishes to place before us another question. He contends that the 1st defendant was entitled to distrain standing crops. But as this question was not raised before the Appellate Court and as it is not one of pure law, we cannot allow him to raise it here. We consider it unnecessary to pronounce an opinion on the question decided by the Appellate Court.

2. We are of opinion that the 1st defendant was entitled to make the distraint even if he was not a registered proprietor under Section 134, Clause 2, of the Estates Land Act. As already stated, the arrear of rent was due for Fasli 1317. The whole of the rent was payable before the end of May 1908. A Muchilika had been executed by the plaintiff, Exhibit III, dated 31st January 1904, for a period including Fasli 1317. The 1st defendant was, therefore, entitled to distraint on the expiration of the month of May 1908. The Estates Land Act came into force only on the 1st July 1908. It is not disputed that under Act VIII of 1865, the 1st defendant would be entitled to make the distraint, if he did so before the Estates Land Act came into force; that right of distraint, in our opinion, was in no way affected by the Act subsequently coming into force, as no right previously acquired by, and vested in, the 1st defendant could be affected by Estates Act: See Section 8, Madras General Clauses Act I of 1891. The 1st defendant’s primary right, no doubt, was to recover rent. But he had also a secondary right to recover it by means of distraint. We cannot accept the argument pf the learned Vakil for the appellant that that right-was one relating only to procedure. It did not relate to the procedure to be followed in any Court. It was a right vesting in the landholder himself. As already stated, it must be regarded as a secondary or subsidiary right which he had in order to enforce his primary right to rent. The distraint must, therefore, be held to be valid and the suit was rightly dismissed by the lower Appellate Court. We dismiss the second appeal with costs. Second Appeals Nos. 1030, 1031 to 1068 and 1178 and 1179′ follow.

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