1. The right of collecting Tangeda bark from March 1896 till November 1899 in certain forest tracts was put up to auction by Government and was purchased by the grandfather of the plaintiffs and certain other persons. According to the terms of the contract between the lessees and the Government, the amount of Rs 21,000 was payable by the lessees in certain instalments. Some instalments were paid; but default was made in the payment of subsequent instalments. In consequence the Government put up to Auction again the right to collect the bark for the remainder of the period. Subsequently the Government claimed the rights to collect the difference between the amount realized at the second auction and the balance due by the lessees, from the latter, and put in force the provisions of the Revenue Recovery Act arid sold certain properties belonging to the plaintiff's grandfather. The properties were purchased at the auction by the 2nd defendant. The suit is for a declaration that Government had no right to sell the properties under the Revenue Recovery Act.
2. Several grounds were urged in support of the plea that the sale was invalid. For instance it was urged that the Government had given up the right to collect the deficit. It is enough, however for the purpose of this judgment to consider one ground of invalidity of the sale, namely, that the deficit was not realizable under the provisions of the Madras Revenue Recovery Act II of 1864. The learned Government Pleader relies on Section 66 of the Madras Forest Act of 1882 as giving power to Government to realize the deficit under the rules applicable to the realization of arrears of Government revenue. That section provides, 'All money other than fines payable to the Government under this Act or any rule made thereunder or on account of timber or forest produce or of expenses incurred in the execution of this Act in respect of timber forest produce...may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue.'
3. He does not contend that the amount of the deficit would come in with the expression 'money payable to Government under this Act or any rule made thereunder.' But he argues that it was 'money payable on account of timber or forest produce.' This argument cannot be upheld. The Government in this case put an end to the contract by virtue of which the lessees were entitled to enjoy the forest produce in question, namely the Tangeda bark. The money was not claimed by Government as compensation for the enjoyment by the lessees of forest produce. Government no doubt was entitled under the contract between the parties to re-sell the right to collect Tangeda bark, if the lessees made default in the payment of the instalments due by them. But the question is, what was the nature of the right which accused to Government when it exercised its right to put an end to the lease and to re-sell the right to collect the bark? In our opinion it was not the right to recover the revenue due to the Government on account of the enjoyment by the lessees of forest produce, but a right to damages incurred in consequence of the plaintiff's failure to pay the instalments provided for in the contract between the Government and the lessees.
4. We agree with the Subordinate Judge that the sale of the land in question under the provisions of the Revenue Recovery Act was without jurisdiction. We, therefore, confirm his judgment and dismiss the second appeal with costs.