Subramania Ayyar, J.
1. The facts of the case material for our present purpose are as follows: The land, for the possession of which the Appellant sues, was held by him under a mittadar who is a landlord within the meaning of the Rent Recovery Act (VIII of 1865) and the interest possessed by the appellant in the land was a saleable interest. The landlord, alleging that the rent due by the appellant for fasli 1297 was not duly paid, proceeded to recover the amount by sale of the latter's interest in the land under the provisions of the enactment referred to. On the notice Prescribed' by Section 39 of the Act being served by the landlord upon the appellant, he filed a summary suit under Section 40, questioning the legality of the landlord's proceedings, chiefly on the ground that exchange of patta and muchilka had not been dispensed with and that there' was neither an interchange of such engagements between him and the landlord, nor a tender of a proper patta to the former by the latter as required by Section 7. But the suit was dismissed as the appellant failed to prosecute it. Thereupon the Collector directed the appellant's interest to be sold, and it was sold on the 31st August 3.889 and purchased by the second respondent, who subsequently conveyed his, right to the third respondent this suit was brought in September 1891.
2. The first question for determination is whether the suit is time-barred. Though the plaint does not pray for a cancellation of the sale, there is no doubt that the relief claimed cannot be granted without setting aside the salg, unless it was ab initio null and void, and therefore did not require to be set aside as contended on behalf of the appellant. In support of this contention his vakil relied upon the alleged omission, referred to above, on the landlord's part to comply with the provisions of Section 7 of the Act. But this argument is palpably unsound.
3. Special powers, like those exercised by the Collector under the Act, may be ircumscribed (a) with respect to place, (b) with respect to persons, (c) with respect to the subject-matter of those powers. Narohari v. Anpurnabai I.L.R. 11 Bom. 160 . Now, as to the first, no uestion arises here. As to the second, the appellant and the mittadar were undoubtedly persons falling within the class of tenants and landlords to whom the enactment applies; and as to the third, the interest sold was of a description liable to be seized and transferred at the instance of the landlord.
4. Therefore the non-compliance with the provisions of Section 7 relied on behalf of the appellant, though it has an essential bearing on the party's right to enforce the terms of the tenancy, has yet none with reference to any of the three matters as to which jurisdiction might be shown to fail.
5. Consequently the order under which the sale in the present case took place was passed with jurisdiction and, if the sale be impeachable, it can be impugned only in a suit instituted within one year from the date mentioned in Article 12
Description of Suit. | Period of limita- | Time from which period begins to run.
| tion. |
To set aside any of the following | One year ... | When the sale is confirmed, or
sales: | | would otherwise have become final and
(a) sale in execution of a decree | | conclusive had no such suit been
of a Civil Court; | | brought.]
(b) sale in pursuance of a decree | |
or order of a Collector or other | |
officer of revenue; | |
(c) sale for arrears of Government | |
revenue, or for any demand recover- | |
able as such arrears; | |
(d) sale of a patni taluk sold for | |
current arrears of rent. | |
Explanation.--In this clause | |
'patni' includes any intermediate | |
tenure saleable for current arrears | |
of rent. | |
6. The appeal fails and must be dismissed with costs.
7. I am clearly of opinion that the appellant cannot succeed without setting aside the revenue sale, and this can only be done by suit brought, within one year.
8. No such suit having been brought, the sale stands good.
9. I agree that the appeal fails and must be dismissed with costs.