Jaganmohan Reddy, J.
1. This appeal is against a judgment of the Subordinate Judge of Narasapur decreeing the suit of the plaintiffs and awarding them damages of Rs. 8,900, and, after giving credit for Rs. 3,613 towards the sale of tobacco and chillies, passing a decree for Rs. 5,287.
2. The suit arose, in the following circumstances. It appears that the plaintiffs-respondents who are brothers were the tenants of one Chituuri Ramanna who had taken on lease Puligeda Lanka and Nadimi Lanka from the appellant-2nd defendant, who was the Head Village Munsif of Doddipalla village. The respondents alleged that they had raised tobacco and chillies under the lease commencing from 26-8-1951 and gathered and stored the crops in the sheds in Puligedda lanka for curing the tobacco, under licence No. 154/52, dated 30-1-1952, which was granted to the 1st respondent by the Excise Department. In this case, whatever may be the allegations in the plaint and the averments in the written statement and the issues, it is not disputed before me that these two lankas were leased by Chitturi Ramanna to respondents 1 to 3 and that the excise licence was in the name of the 1st respondent and that these respondents had raised tobacco and chillies crop and had cut them and kept them in barns for curing. What is disputed is the value of the tobacco which has been fixed by the Subordinate Judge at Rs. 8,000 and the right of the Government to attach the crop. The claim ot respondents 1 to 3 was for damages against both the Government (4th respondent) as well as the appellant for having attached and brought to sale the tobacco and chillies belonging to them with the connivance of the appellant, who was actuated by ill-will and malice against them, and without any just claim or cause. The appellant, it is alleged, being a rich and influential man, managed to effect wrongful seizure with the unlawful assistance of a Police Constable No. 1031 and a Revenue Inspector of Doddipatla Firka, Sri Penngonda Suryanarayana murthy, without serving any written notice on them and when there was nothing due from them, nor were they liable for this amount.
It was also averred that the village of Doddipatla and its hamlets have got two village Munsifs. While the appellant was in charge of the work relating to Doddipatla village proper, the other village Munsif was in charge of Puligedda lanka; etc. But, in this case, the appellant with sheer malice went out of his way and concerned himself unnecessarily in effecting the wrongful seizure of the stock of tobacco and chillies which were stored in Puligedda lanka, hamlet of Doddipathi, over which he had no jurisdiction. Respondents 1 to 3 stated, that the tobacco and chillies seized by the appellant belonged to them absolutely and were not of all liable to be seized for any arrears of revenue of Chitturi, Ramanna who was only entitled to claim the rent due under the lease. It appears that Hamanna obtained a decree in O. S. No. 26 of 1952 on the file of the District Munsif's Court, Narsapur for a part of the rent under the lease and received almost the rest of the rent due also from the plaintiffs even before 28-4-1952, and as such, even Ramanna had practically no claim against the respondents in respect of their lease for any rent due under it. The appellant filed a petition to implead the plaintiffs as lessees of Ramatma for Puligedda lanka lands in O. S, No. 224 of 1951 on the file of the District Munsif's Court. Narasapur which was filed by the appellant against Ramanna inasmuch as he had a claim against Ramanna for the rents from these lands. In order to coerce the respondents by illegal action and somehow collect some amount wrongfully from them, the appellant got the Tahsildar to issue an attachment order under the Revenue Recovery Act, and in fact, under the threat of attachment and of obstructing the respondents from removing the tobacco stocks from the nit when it was in the process of curing, he collected Rs. 1,200 from the three respondents on 3-4-1952. Further, he detained the stock illegally in the village chavadi of Doddipatla quite recklessly without any regard to its safety or proper flooring or ventilation and thus caused deterioration in the value of the tobacco as a consequence of which it was sold only for Rs. 3,613 when its value was nearly Rs. 10,000. The Government, it was alleged, was quite negligent and failed in its duty to see that the stock of tobacco must be carefully preserved from deterioration and damage in a fit and proper place when it was in the custody of its subordinate officers. As such, both the 4th respondent and the appellant were jointly and severally liable for the full value of the tobacco and chillies seized by the appellant, and consequently, the respondents issued a notice under Section 80, C. P. C. to both the defendants on 20-10-1952. After this notice, the 1st defendant's officers sold the stock as late as on 15-12-1952 to avoid total loss and in the auction no genuine bidder was prepared to bid as the stock was too much damaged and hence the appellant himself through some of his underlings managed a show of small competition and purchased the said stock himself in the names of Adabala Nambellaswamy and Gidigi Suranna for Rs. 3,535 and he bought the chillies for Rs. 75. (3) The 1st defendant contended in his written statement that Chitturi Ramanna was an ex-lessee of Valam lanka and Jangamvani lanka of Doddipatla and a defaulter in a sum of Rs. 8,145 towards grazing rights. On a report received from the appellant that the said Hamanna had moveable properly at Doddipalla, the Tahsildar ordered that immediate steps might be taken by the Revenue Inspector for the realisation of the amount by distraining the defaulter's property, and consequently, the Revenue Inspector and the appellant distrained 99 chattas of tobacco and 3 baskets of chillies on 27-4-1952 and removed the same to the village chavadi for safe custody after preparing an inventory of the same through mediators, that the quality of the tobacco seized was not good and the size was not uniform, and that the amount realised in the circumstances was fair and reasonable. It was stated by the 4th respondent (1st defendant) that they are not aware of the lease in favour of the plaintiffs and stated that the plaintiffs were duly served with the notice, that there was no avoidable delay in bringing the property to auction and that all reasonable care was taken of the same till it was sold, that the auction was properly held in accordance with law and it fetched a proper price. It was also stated that the 4th respondent was not aware that a sum of Rs. 1,200 was collected from the plaintiffs as alleged in Paragraph 9 of the plaint, but they have nothing to do with the alleged collusion and had no knowledge of it. The Government was also not aware of the suit lease in favour of the plaintiffs at the time the crops in question were distrained and believed bona fide that the crops belonged to the defaulter Chitturi Ramanna. The mistake was discovered only recently and the 4th respondent was ready and willing to return to the plaintiffs the amount realised in the auction. It was contended on their behalf that they are not liable for damages for the distraint and sale of the crops in question. Other pleas were also taken such as that the plaintiffs are not entitled to claim any interest and that the suit was not maintainable.
4. The appellant, in his written statement, stated that he was not aware that the plaintiffs took on lease about 18 acres of lanka land from late Chitturi Ramanna, that they raised tobacco and other crops in them and that they obtained a licence for curing tobacco and that the tobacco was worth Rs. 10,000. The chillies were worth only Rs. 75 or Rs. 78. It was also stated that there was no acquaintance between the appellant and the plaintiffs previously, that Chitturi Ramanna owned certain amounts to the Government as arrears of revenue on the lanka lands belonging to the revenue village of Doddipatla, which he had taken on lease from the Government, that the revenue authorities issued orders directing that the crops raised by Ramanna in the lanka lands should be attached and that the proceeds realised by the sale be credited to Government towards arrears of revenue due from Ramanna. Accordingly, the appellant, along with the then Revenue Inspector of Doddipatla, attached the crops that were raised on the lanka lands by Ramanna and the stock was kept in safe custody. He also denied knowledge of the decree obtained by Ramanna in O. S. No. 26 of 1952 on the file of the District Munsif's Court, Nara-Sitpur against the plaintiffs and about the financial matters as between Ramanna and the plaintiffs. Under the terms of the auction of leasehold rights of the lanka lands, the lessee is forbidden from Sub-leasing the lands, and so Chitturi Ramanna was not entitled to Sub-lease the lands to the plaintiffs. The Sub-lease is not valid in law and completely void and was not binding either on the Government or on third parties. As such, the respondents cannot in law enforce the rights said to have accrued to them under the Sub-lease and the respondents have no cause of action against the defendants and much less against him personally. It was also denied that he acted illegally or wrongfully or in misuse of the powers. The suit was not maintainable and was liable to be dismissed.
5. Several issues were framed, and for the purposes of this appeal, it is necessary only to consider the following issues, viz.
1. What is the value of the tobacco and chillies seized by the 2nd defendant ?
2. Whether the 2nd defendant was actuated by malice; and if so, whether the 1st defendant is liable for such acts of the 2nd defendant ?
3. Whether the articles seized became deteriorated by any improper action on the part of the 1st defendant?
4. Whether the plaintiffs failed to avail themselves of the opportunity to take possession or the attached properties; and if so, are they estopped from claiming any damages for detention?
5. Whether the 2nd defendant in personally liable to any extent?
6. Whether the suit is in time ?
6. Sri R. V. Kama Rao, on behalf of the appellant, contends (1) that the attachment was done under the authority of law, viz., on the orders of the Tahsildar issued under Section 8 of the Revenue Recovery Act and that he, in obedience to those orders, distrained and attached the properties. (2) There was also ratification by the Government in dismissing the claim petitions of respondents t to 3 when the property was brought to sale and auctioned and when the property attached was that of Chitturi Ramanna. (3) Even on the footing that they are the crops of the plaintiffs raised on Chitturi Ramanna's laud, the arrears due from Ramanna can be recovered from the crops raised by his tenants and so the suit is barred under Section 59 of the Revenue Recovery Act as it has not been filed within six months from the date when the cause of action arose, viz., on 28-1-1952, while the suit was filed on 24-12-1952. It is averred that Section 15(2) of the Limitation Act does not apply to the facts of this case. (4) There was in fact no loss sustained because the claim, if any, under Section 11 should be against Chitturi Ramanna and not against the Government. (5) There was no legal evidence for fixing the price at Rs. 8,000.
7. The learned Advocate for respondents 1 to 3 on the other hand contends that there is ample evidence to show that the appellant acted with malice, that he had earlier recovered not only the lease amounts due to him from Chitturi Ramanna, but under threat of distraint of the tobacco grown by them recovered another sum of Rs. 1,200 and not being satisfied, went on to attach and distrain their property and removed the same from the curing godowns to the chavadi where it deteriorated. As a result of this, the plaintiffs filed a suit against the appellant, being O. S. No. 156 of 1952 on the Me of the District Munsif's Court Narasapur for the recovery of Rs. 1,200 and obtained a decree for the same. The appellant appealed but without success so that in fact, according to the learned Advocate, there was no amount due from Chitturi Ramanna to the 2nd defendant which amount could be claimed from respondents 1 to 3 towards the lease amount. The appellant was fully aware of these facts when he persuaded the Tahsildar to believe that the property belonged to Chilturi Ramanna when in fact the property did not belong to him and thus attached their properties without any just cause or justification. The learned Advocate further contends that when the order itself was not to seize their goods there can be no question of any ratification or that order and both the 4th respondent and the appellant are liable. On the question of limitation under Section 59 of the Revenue Recovery Act, the learned Advocate contends that where there Is no jurisdiction at all to make a demand on respondents 1 to 8, Section 59 does not operate. It is also untrue to say that they did not suffer any damage. The value of the tobacco, according to Government prices itself, was more than what it fetched and what the learned Judge fixed is reasonable, and accordingly the decree must be sustained.
8. It may be stated at the outset that there was another appeal filed by the Government against the judgment and decree awarded against it, being Appeal No. 258 of 1958. But my learned brother, Venkatesam, J., allowed that appeal on the ground that respondents 1 to 3 had no cause of action against the Government for torts committed by it. The contention of the learned Government Pleader in that casa was that even granting that the acts attributed to the 2nd defendant, the village Munsif, are true they only amount to torts or civil wrongs committed by him. It was also contended that at the worst the inaction on the part of the superior Government officials, whose attention had been drawn to the high-handed action of the 2nd defendant, and also the fact that the crops seized were allowed to he deteriorated, would only amount to negligence, which again is a tort, and that in either view, it was submitted that for the tort of the village Munsif or of the superior revenue officers, the Government could not be made liable. This proposition was accepted as it was said that as it was too late in the day to question its correctness. The recent judgment of Satyananwana Raju, J. (as he then was) and Venkatesam, J. in Appeal No. 214 of 1960, dated 18-7-1964: (AIR 1065 Andh Pra 457) was relied upon as also the observations of his Lordship Sinha, C. J. in the State of Rajasthan v. Mst. Vidhyawali. : AIR1962SC933
9. In disposing of the several contentions raised before me, certain admitted facts may be stated, viz,, that respondents 1 to 3 were the lessees of Chitturi Ramanna who had taken on lease Puligedda lanka and Nadimi lanka land from the appellant, that arrears of revenue amounting to Rs. 8,625 due from Chitturi Ramanna was in respect of grazing rights in Velam Lanka and Jangamvani Lanka for fasli 3358, that the crops on Puligedda lanka and Nadimi lanka raised by respondents 1 to 3 were not standing crops and these had been cut and reduced into possession and were stored in a godown or a shed under excise licence No. 154/52, dated 30-1-1952 and were in the custody of the plaintiffs, that the demand notice (Ex. B-4), dated 20-4-1952 in Form No. 1 was issued under Section 8 for attachment of the property of Chitturi Ramanna and it was issued to the village Munsif of Doddipatla village No. 31, Narsapur taluq authorising him to attach the property belonging to that individual. In Column 8, it is stated that a sum of Rs. 8,625 only has to be collected, that the defaulter is the pattadar and the debt has to be collected from the defaulter. The circumstances under which Ex. B-4 was issued may now he stated.
10. It appears from Ex. B-2. dated 19-3-1952, a letter from the Village Munsif, Doddipatla village (appellant) addressed to the Tahsildar, that there were some moveable properties which could be attached towards the arrears of revenue due from Chitturi Ramanna. The English translation of the letter is in the following terms;--
'Chitturi Ramannagaru, resident of Sompalli village carried on cultivation in jangamvanigedda Lanka' in Doddipatla village. He has not yet paid the tax payable by him in respect of the said lanka and kept the same in arrears. The moveable properly belonging to the said Chitturi Ramanna is situate in our village. Hence if there are any arrears of cist payable by him and if an order is issued to me. I shall get the moveable property attached and collect the arrears. Hence I pray that an order may be issued immediately. If delay is made ha would alienate the moveable properly. I have, therefore, submitted the facts.' On receipt of this letter, the Tahsildar made the following endorsement on the back of it (Ex. B-81): 'Forwarded to the R. I., D. D. P. for immediate action.
2. The defaulter has to pay a sum of Rs. 8,625 as fixed by the Collector for the grazing rights every year by him for 1358 F.
3. The distrained records should be submitted forthwith.'
On 28-3-1952, a notice (Ex. B-3) was issued by the Tahsildar to the Village Officers as follows:--
'Chitturi Ramanna, resident of Sompalii village has to pay a sum of Rs. 8,625 being tha cist payable for Fasli 1358 in respect of Jangamvanigedda Lanka relating to your village.
Hencc it the moveable property belonging to the said Ramannagaru is at your village, get it attached and forward immediately the record relating to the attachment to the taluk. The memo N. H. C. A. 3 1170/48, dated 20-3-52 is herewith forwarded.'
It is only 23 clays after this that Ex. B-4, the demand notice under Section 8, was issued. Eight days after the receipt of Ex. B-3, the Village Munsif attached 99 packages of tobacco and chillies of about 3 maunds packed into three baskets belonging to the said Chitturi Ramannagaru as is apparent from Ex. B-6, dated 29-1-1952. The English translation of the report of the appellant to the Tahsildar reads as follows:
'Chitturi Ramanna, resident of Sompalli has become indebted in a sum of Rs. 8,145 payable by him for Fasli 1358 in respect of Jangamvani Gedda Lanka, otherwise known as Velapu Lanka in the aforesaid village. As he has been causing trouble by non-payment of the said arrears the order N. R. C. No. 1170/18 has been issued to me directing me to collect the said debt. In pursuance of the said order, I attached 99 packages of tobacco and chillies of about 3 maunds packed into baskets, i.e.. 3 baskets of chillies belonging to the said Chitturi Ramannagaru and I have kept under safe custody the said 99 packages of tobacco and the 3 baskets of chillies in the village chavadi at Doddipatla village and I have kept two coolies to keep watch. The said tobacco has not been affected by T. B. 3. The said tobacco was packed into baskets and in order to evade payment of the tax payable to Government and duty to the Central Excise Department the owners of the said tobacco heaped up the same in packages at one place in Puligedda Lanka in our village. They brought a boat for taking away the said tobacco and kept the said boat in Godavary. When I came to know this matter I immediately went to the place where the said tobacco was placed, and in the presence of the mediators, I attached the said 89 packages of tobacco and 3 baskets of chillies which were about to be transported. I, thinking that it was not safe to keep the said attached property in the said Lanka brought the same and kept the same under safe custody in the village cliavadi in our village. T, therefore request that orders may be issued for sale or the said tobacco subject to the condition of paying duly on the said tobacco to the central Excise Department after intimation to them.' Thereafter, he made the endorsement (Exhibit B-51) on the buck of Ex. B-4 to the effect that as the party was not present, the duplicate copy of the notice was affixed publicly in the attached properly,
11. These documents conclusively establish one fact, viz., that throughout the proceedings, the Village Munsif, the appellant, was representing to (he Government that the property was that of Chitturi Ramanna. The initiative from the beginning was taken by the appellant and on the representation that the property belonged to Chitturi Ramanna. he obtained attachment orders, attached the properties and sent a report saying that he had attached Chitturi Ramanna's properties. It is now necessary to see whether in fact on the date when he wrote the letter to the Tahsildar and when he made the attachment, whether he had knowledge that the property did not belong to Chitturi Ramanna but to respondents 1 to 3.
12. The Subordinate Judge relied upon Ex. A-40, certified copy of the written statement filed by D. W. 12 (appellant) in O.S. No. 156 of 1952 on the file of the District Munsif's Court, Narasapur. Paragraph 6 of it is to the effect that the plaintiffs-respondents were the Sub-lessees of Ramanna and that they paid Rs. 1,200 on his behalf and obtained a receipt, that Ramanna was the lessee of the appellant (2nd defendant) and that he owed him Rs. 1,200 towards that lease. This written statement, though filed later, shows that at the time when he received Rs. 1.200 from respondents 1 to 3 towards the lease amount due from Chitturi Ramanna to himself, i.e., on 3-4-3952, the appellant very well knew that respondents 1 to 3 were the lessees of Ramanna and that they had raised the tobacco crop and chilly crop on the lands as lessees. It was long subsequent to the receipt of Rs. 1,200, about 25 days thereafter, that the appellant attached the properties and sent his report Ex. B-6 to the Tahsildar, as if the property which was attached was that of Chitturi Ramanna. Further, even though he had taken the initiative as early as 19-3-1952 and there was every likelihood of the property, which according to his representation belonged to Ramanna, being alienated and even though he received orders to attach the property immediately, he did not effect any attachment but tried to recover the amounts due to him from Chitturi Ramunna from the lessees.
The evidence oi P. W. 3 shows that Chitturi Ramanna had only the right to get his rent, one tobacco chatta and one chillies chalta, that the 2nd defendant knew personally that they cultivated the lands, that on 3-4-1952 they paid Rs. 1,200 to the 2nd defendant towards the lanka cist for the same tobacco and chillies on being told that Chitturi Kamanna had to pay it. The 2nd defendant (appellant) had also told them that if Ramanna did not pay the amount, he would refund it. They paid the sum of Rs. 1,200 to the 2nd defendant and took a receipt. Ramanna then told them that he would not repay it. The amount was paid due to 2nd defendant's pressure. When they asked the 2nd defendant to return the amount, he evaded. They sued him and Ramanna for recovery of Rs. 1,200 and obtained a decree as per Ex. A-26. They filed the receipt in that suit. The 2nd defendant appealed but it was dismissed. They executed the decree and recovered the amount from the 2nd defendant, He also say that the 2nd defendant filed a petition as per Ex. A-3 to add them in his suit against Ramanna as lessees of Ramanna. Ramanna obtained a decree against them as per Ex. A-2. When the Police Constable came, he asked him to show the authority but he did not show it. Then they asked the 2nd defendant to serve his notice of attachment on them, but he did not serve it. They asked the Revenue Inspector also about it, but he did not give them any proper reply.
P. W. 3 also stated that the 2nd defendant brought the persons in a high handed manner and that he had no permit of the Excise Officials to take the tobacco to Doddipatla. As they were all at raid, they wont away and did not cause any obstruction. The witness then speaks of factions in Doddinatla that the 2nd defendant was an influential person, that they raised objection to the storage of tobacco in the village chavadi, that they took a pleader to the District Collector and got representations made but no action was taken. In cross-examination, he denied that Ramanna had anything to do with the crops. It was elicited that in February 1932. he paid Rs. 650 and odd and they paid Rs. 1,200 in April 1952. The 2nd defendant's father took the Puligedda Lanka on lease and Suryanarayana Rao took the Nadimi lanka on lease, Ramanna was their Sub-lessee and they are the Sub-lessees of Ramanna. The cross-examination by the 2nd defendant was long and severe but it does not appear to pertain directly to the immediate question on hand. Nonetheless it was elicited in that cross-examination that Karnam B. Rama Rao came and saw the crops and it was also elicited that he knew that there were disputes between 2nd defendant and Suryanarayana. The Karnam is Suryanarayana's man. Towards the end of the cross-examination, he stated that the 2nd defendant asked him to pay Rs. 1,200 due to him by Ramanna towards arrears but he did not ask Ramanna about the same as the 2nd defendant was coming to the lanka and going. He told him that there were disputes between him and Ramanna and that he would not pay, but as the 2nd defendant was a powerful man, he paid away the amount. The 2nd defendant issued a receipt to Ramanna mentioning that he paid the amount. The witness told Hamanna tour days later that he paid Rs. 1,200 as the 2nd defendant threatened him, but Ramanna did not agree to the payment. So, he asked the 2nd defendant about it on the next day, and he refused to refund it. He did not issue any registered notice immediately and he actually issued the registered notice on 13-6-1952.
13. The version of the 2nd defendant examined as D. W. 12 in respect of this matter is that Ramanna cultivated Pullala and Puligedda lankas in the years 1950 to 1932 and took up the position that Sub-leases without the Collector's permission were void. According to him, it was the Tahsildar who told him during one of his visits that there was an order for collection of Rs. 8,000 from Ramanna and he told him that Ramanna had no property in their village, that he cultivated the lands and it was not the time for attachment. Then the Tahsildar told him that he would send the demands to Razole and that he should be watching the crop as P. W, 12 did not take any interest. Demand notice was sent to Razole. The Tahsildar told him that he did not receive any reply and that he should be watching. It is his case that he wrote Ex. B-2 at the instance of the Tahsildar. In it, he referred to the crops raised by Ramanna in Pullala lanka and Puligedda lanka and he was afraid that he would take away the property. The Tahsildar sent Ex. B-81 to the Revenue Inspector who sent it to him and il was noted as per Ex. 8-96 that it was very urgent. The Revenue Inspector then issued Ex. B-3 notice to him to submit the record to the Taluk Office. The witness stated that P. W. 12, hamlet Village Munsif, and the Karnam belong to the same village and they were his enemies. He insisted on saying that Ramanna cultivated 18 acres and raised tobacco on 12 acres, chillies on 3 acres and horsegram on 2 acres. He also stated that at the time the properties were attached, the Revenue Inspector was present, but the Revenue Inspector (D. W. 8) denied that he was present at the time. He also denied that plaintiffs ever took Ramanna's lands on sublease. He also denied knowing the plaintiffs. He admitted in cross-examination that he collected arrears due up to 1951 and for 1951-32 he sent them through P. W. 3. There were disputes between the witness and Ramanna about them. Ramanna sent Rs. 1,200 to P. W. 3 in April, 1952 towards his arrears and he gave a receipt to him and he did not ask P. W. 3 why he brought the amount. He admitted that he was asked to attach the moveables of Ramanna and he went to the land and attached them and after affixing the notice to the house Ramanna sent Rs. 1,200 through P. W. 3 towards his arrears. He also admitted that he sent the records in one week. From 29-1-1952 to 3-54952 he was in the village and though the Revenue Inspector asked him to send the records urgently, he did not do so and the records were only sent on 5-6-1952. In the cross-examination by the plaintiffs, he again asserted that he knew personally that Ramanna alone raised the tobacco crop. He saw him 2 or 3 times transplanting it and he never saw the plaintiffs in the suit land in 1951 or 1952. When confronted with what he stated in the written statement, he said:
'I do not remember how I alleged in my written statement. I told my pleader that 1 knew personally. Paragraph 3 of my written statement is correct.'
He again wants the Court to believe that he did not know personally that the plaintiffs cultivated the land. When he was asked whether he took the permission of the Collector to sublease the lands, he stated that he did not apply. He stated that he filed a petition for appointment of a receiver. Ramanna contended that he leased out the lands to the plaintiffs herein. The witness sought to add them as parties in the petition test they should obstruct. He did not inform the Tahsildar that he filed a petition to add the plaintiffs as parties in that suit, but he stated that he filed a petition to add them in the Receiver petition. It is unnecessary to go through this long cross-examination because From what has been extracted, it is clear that D. W. 12 was not telling the truth when he stated that he did not know that respondents 1 to 3 were lessees or that they cultivated the lands. These statements made in the initial stages of his evidence were contradicted effectively by confronting him with documents to which he was a party, viz., the allegations in the written statement and the application for impleading respondents 1 to 3 as parties. I have no doubt whatever that the Subordinate Judge was right in coming to the conclusion that the appellant had full knowledge that respondents 1 to 3 were lessees, had cultivated the lands, raised tobacco and chillies and cut them and stored them in the sheds for curing the tobacco and made false representations to the. Tahsildar that that was the property of Chitturi Ramanna and that it should be attached with a view to extracting from respondents 1 to 3 amounts payable by them to Chitturi Ramanna towards what was due from Chitturi Ramanna to himself. Not only did he get what was due to him from Chitturi Ramanna from respondents 1 to 3 but also proceeded to attach the properties after he had received the same without any just cause as if the properly was that of Chitturi Ramanna. The orders given to him were to attach the property of Chitturi Ramanna but the appellant did not attach the property of Chitturi Ramanna hut that of respondents 1 to 3.
14. Sri R. V. Rama Rao contends strenuously that the property which the appellant attached was in fact the property of Chitturi Ramanna because the tobacco was grown on the land leased out to Chitturi Ramanna, and if under Section 11 of the Revenue Recovery Act standing crop could be attached, the revenue arrears being recoverable from the land itself, then it makes no difference to that position even after the crop is cut and stored. It is difficult for me to accept this contention. The attachment of standing crop on the land is ne thing and the crop being cut and severed form the land is another thing. In the latter case, the crop has been appropriated and has no further relationship with the land and cannot therefore be attached within the meaning of Section 13 of the Revenue Recovery Act. Section 11 is in the following terms:
'The distrainer attaching the crops or ungathered products of the land belonging to a defaulter, may cause, them to be sold when fit for reaping or gathering, or, at his option may cause them to be reaped or gathered in due season and stored in proper places until sold. In the latter case, the expanse of reaping or gathering and storing such crops or products shall he detrayed by the owner upon his redeeming the properly, or from the proceeds of the sale in the event of its being sold. When crops or products belonging to a tenant shall have been sold, it shall be lawful for such tenant to deduct the value of the crops or products so sold from any rent which may be due by him, then or afterwards, to the defaulter, in respect of the land on which such crops or products have been grown. If shall also be lawful for a tenant whose crops are attached for an arrear of revenue to pay the arrear and deduct the amount in the aforesaid manner from any rent due by him, then or afterwards.'
While it is true that where crops raised by the tenant are sold by distraining for arrears due from the lessor, the tenant has a right of set off against the amounts due from him to the lessor, but that is far from saying that section 11 authorises the distrainer to attach the crops which are standing or which are ungathered. The very purpose of the section is to attach them and to watch them for a period when they are ripe to be sold, either without cutting them or to cut them and sell them and defray the cost of cutting from out of the proceeds of the sale. This section does not empower the distrainer to attach the property after the same has been cut and taken away. In interpreting this section, which has penal consequences, courts should give a strict interpretation and construe it within the terms specified therein. I do not therefore think that the analogy given by the learned Advocate, viz., that it makes little difference whether the crops are cut after the attachment is made or that the attachment is made after the crops are cut, is, in my view, warranted by the provisions of Section 11. I must therefore hold that the property, at the time of attachment, did not belong to Chitturi Ramanna, and to the knowledge of the appellant it belonged to respondents 1 to 3. The further defence that he was carrying out the orders of the superior officers and was acting within the provisions of the Revenue Recovery Act does not carry justification and there is no merit in the contention that his action was bona fide and without malice. The facts narrated or established amply prove that the appellant deliberately set in motion the machinery of Government for the purposes of gaining his personal ends and acted with mala fides and in a high-handed manner when he attached and removed the, properties from the shed of respondents 1 to 8.
15. The next question that falls for determination is whether the suit is barred by limitation. Section 59 of the Revenue Recovery Act creates a special period of limitation, viz,, six months within which a suit should be filed. It says:
'Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress; provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such causes of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.'
The first part of the section, though in the negative, empowers all persons aggrieved to take such action as they deem fit in Civil Courts if they so choose, while the second limb of the section makes it abundantly clear that any such suit which they may file can only be taken cognizance of if it is filed within six months. There is ample authority for the proposition that where suits are filed in respect of any cause of action taken under the Revenue Recovery Act, the general law of limitation does not apply but only the provisions of Section 59 of the Revenue Recovery Act. It is however contended by the learned Advocate for the respondents that where there was no justification to act under the Revenue Recovery Act, such as for instance where there was no amount due or where the person whose property is attached is not liable for any arrears and action is taken against him, then there is no jurisdiction to invoke the provisions of the Revenue Recovery Act, and consequently the limitation prescribed in Section 59 will not apply but the period prescribed under the ordinary law of limitation.
16. A Full Bench of the Madras High Court in Venkta v. Chengadu (ISS8) ILR 12 Madias 108 at p. 175 (FB), considered this question. Their, a suit was filed in July 1885 to set aside a sale of land of the plaintiff sold in July 1884 as if for arrears of revenue under Act II of 1861. On the ground that the sale had been brought about by fraud and collusion between the purchaser and the village officers. The plaintiff had knowledge of the alleged fraud more than six months before suit but did not file the suit within that period. It was held that Section 39 of the Revenue Recovery Act applied and that the suit was barred by limitation, Muttusami Ayyar, J., after pointing out the provisions of Section 18 of Act XV of 1877 for allowing the time between the actual commission of fraud and the knowledge of its commission observed:
'Though this provision is contained in the general Act of Limitations, and Act II of 1864 is a special law applicable to Revenue sales yet it applies to the case before us, as Section 6 of Act XV of 1877 directs only that the period of limitation, prescribed by the special Act, shall not be affected by that enactment'
The true import of the expression 'Aggrieved by any proceedings under the Act' in Section 59 is, according to the Full Bench 'not that the proceedings should be in accordance with the Act and therefore perfectly legal, but that the proceedings though defective and irregular and therefore not in strict conformity to the provisions of the Act, should be taken professedly under it. If the suggestion of the appellants Counsel were to prevail, there would be no grievance at all to be redressed by a Civil Court.' Again, the question whether Fraud makes any difference in the period of limitation was answered by a reference to the suggestion made by the counsel before them, Mr. Bhashyam Ayyangar, that' the cause of action would then arise from the date on which the fraud was discovered, but that the period of limitation would still be six months.' Muttusami Ayyar J. pointed out at page 175;
'The section presupposes that certain proceedings were professedly taken under the Act, and that there might possibly be a valid claim to redress on the ground that they were not in accordance with the provisions of the Act and then directs that the claim shall not be adjudicated upon the merits, unless it is preferred within six months from the time when the cause of action arose.
It may be an open question whether the proceedings contemplated in Section 59 are those which are vitiated by mere errors of procedure or include those taken without jurisdiction and, therefore, not within the purview of the Act. For instance, there may be a sale when there are no arrears of revenue, or the land sold may not be included in the patta or holding liable to be sold for the purpose of liquidating them. Though in the case before us there was no arrear of revenue on the plaintiff's land, yet there was an arrear on other land included with it in one patta, and it has already been held that one part of a holding is liable to be sold for the arrear due on another portion of the same holding. It is therefore not necessary for the purposes of this reference to determine the question whether, when there are no arrears for which the land in dispute is liable to he sold under Act II of 1861, the sale is a proceedings under the Act.' It may be stated that these observations made in reference to the facts in that case show that where there is no jurisdiction to invoke the provisions of the Revenue Recovery Act such as where the sale is made when there arc no arrears of revenue or that the land held is not included in the patta or held liable to be sold for the purposes of liquidating them, section 59 becomes inapplicable.
17. This judgment has been referred in a Bench judgment of this Court in China Kotaiah v. Kotaiah, 1960 Andh, L. T. 357, where the test has been laid down that in such and similar, cases it should be seen whether the proceedings taken by the defendant were taken in the professed exercise of the power conferred by the Act and if this test is satisfied, the provision of limitation must be taken to refer to the factum and not to the validity of the proceedings, which, however irregular, must he considered to be a proceeding under the Act. In that case, the plaintiff was said to have been in arrears and his she buffalo was distrained. The case of the plaintiff was that he had sent the amount of Rs. 72 by money order to the Tahsildar, Narasaraopet from a post-office in the neighbouring village and in spite of this the defendant had effected the distraint in the evening in the plaintiff's field in the Yonamadala village after the remittance was made. The facts of this case have no bearing or relation to the facts in this case. There, the plaintiff was in arrears. Whether he paid the money or not, the proceedings were taken under the Revenue Recovery Act to recover that amount. If the amount was not paid, the proceedings could not be challenged. Even where the amount it paid without the knowledge of the person taking it, the action taken is nonetheless under the provisions of that section.
18. In this case, neither the lands nor the: moveable property of the respondents 1 to 3 were directed to be attached nor any proceedings taken under the Revenue Recovery Act for realising any amount due from them. In fact, there was no amount due from them and the proceedings under the Act were not directed against them so that it cannot be said that the period of limitation prescribed under Section 59 is applicable, iN this view, I hold that the suit is within limitation.
19. Lastly, the question that falls for determination is what are the damages that respondents 1 to 3 are entitled to recover. Mr. Rama Rao complains that the judgment of the Subordinate Judge is unsatisfactory and in fact is not based on any evidence. It is not denied that the different varieties of tobacco and its qualities fetch different prices. For instance, the best variety may fetch even Rs. 600 or Rs. 700 per candy while the worst variety may fetch Rs. 100 or even less, In this case, there is evidence to show that respondents 1 to 3 had mixed all the varieties of tobacco viz.. Baraku, Kurachaku, Thepaku and Gullaku, and it was difficult to ascertain how much of each variety the 99 chattas of tobacco distrained by the appellant contained. For the year 1952, corresponding to fasli year 1362, the Tahsildar fixed the price of the 99 chattas of tobacco at Rs. 7500, but the learned Judge rounded off to Rs. 8000. This is rather an unsatisfactory way of dealing with the matter. When there was evidence to show the exact quantity of tobacco that has been distrained, it was the duty of the Court below on the evidence produced to find what the value of the tobacco was. There is 110 denying that it fetched only Rs. 3613. It would be difficult, as I stated earlier, to fix any particular value for this tobacco because each variety has different value and since all of them was mixed, Mr, Rama Rao suggests that an average of the several varieties should be taken which I think is a reasonable way of assessing the value of tobacco. The rates that have been collected from the Government and which both the parties relied upon are of three different periods, (1) rate adopted last year, (2) rata furnished by the Tansildar, Narsapur for this fasli, and (3) rate fixed by the R.D.O. for Fasli 1363. This list, it is not denied, is prepared by the Government, but from the covering letter it looks as if the prices pertain to 1863 Fasli. While Mr. M. Suryanavayanamurthi says Unit the price mentioned in first column 'Rate adopted last yew' should in relation to 1363 Fasli be taken as 1862 Fasli, Mr. R.V. Kama Rao, on the other hand, says that it is for Fasli 1861, while the middle column 'this fash'' means Fasli 1362 because he had called for information only for Fasli 1862, His client's affidavit shows that he had seen this list in the Revenue Inspectors file and summoned for the same and it must be assumed that the list that has been sent is only for Fasli 1861. There is nothing in the list to show that it is for Fash 1861 or 'for Fasli 1862 r Fasli 1863, nor has anyone signed the same, It, is difficult therefore to act upon this list. There is again the evidence of the plaintiffs and defendants. The plaintiff's evidence has been described as interested. That it is definitely so is evident from the fact that one of the witnesses for the plaintiffs says that Gullaku is more costly than Thepaku. While the evidence shows that gullaku is the last of the varieties. Even according to these witnesses, the prices of the three varieties Baraku, Kurachaku and Thepaku is Rs. 100, Rs. 70 and Rs. 50. The average works out at Rs. 70. Of course, the price of Gullaku has not been given by them so it is difficult to get the correct average. The evidence of the defendants is that it is Rs. 60, Rs. 40, Rs. 30 and Rs. 15, working out an average of Rs. 36. DW 2 stated that each chatta of good quality is sold at Rs. 50 or Rs. 60 while Thepaku and Gullaku were sold at Rs. 10 or Rs. 15 per chatta. DW 9's evidence also shows that the price of each chatta ranges from Rs. 25 to Rs. 50 and that short leaf is sold at half the price of long leaf, and that Gullaku and Thepaku are Rs. 10 less than the price for short leaf. According to DW 12, long variety of tobacco was sold at Rs. 50 or Rs. 60 per chatta and short variety was sold for half of it and that Gullaku was sold at Rs. 15 per chatta. He denied that tobacco was ever sold for Rs. 80 even including duty. This evidence has been rejected by the learned Judge because these persons who have got accounts have not produced them. They are third parties and they have not been asked to produce accounts. But all the same, according to this evidence, the rate is on an average of Rs. 40 per chatta. It is in evidence of the Revenue Inspector (D.W. 8) that Bonam Seetaramanjaneyulu, who came to give security, saw the tobacco and offered to give security only for Rs. 3500 in the month of September and when he was asked to give it for Rs. 7500 e refused. It is also in evidence that respondents 1 to 8 were cultivating tobacco for the first time and were inexperienced and as such they mixed up all the varieties. It is therefore difficult to assume that the value of the tobacco was Rs. 7500 or even Rs. 8000, and from the evidence of plaintiffs and the defendants, average can be deduced and the rate fixed at Rs. 45 per ohatta, and at that rate for 99 ohattas the value of the tobacco would come to Rs. 4455. If from this is deducted Rs. 3535, the amount realised by the sale of tobacco, a sum of Rs.920 is still to be recovered by respondents 1 to 3. There will therefore be an amendment in the decree to this extent and the suit of respondents 1 to 3 will he decreed for Rs. 920 together with interest at 51/2 per cent per annum from 28-4-1952 to -1-3-1954 on the amount of Rs. 4455 and with respect to the balance at the same rate from 4-3-1954 till dale of realisation. The parties will pay and receive proportionate costs both here and in the Court below. C. M.P. No. 7538 of 1961: Dismissed.