Govinda Menon, J.
1. Defendant 5 in the trial Court who was a purchaser of the suit properties from defendant 4 who, in his turn was again a purchaser from defendant 3, appeals to this Court aggrieved by the decision of the Subordinate Judge of Ramnad at Madura in A. S. No. 178 of 1945 on his file. It is seen that defendant 3 had purchased the tenancy rights in the properties at a private auction held by the manager of the Mannarkottai Zamin to which estate the land belonged, for arreas of rent due to the estate. It is alleged that the plaintiffs who were the occupancy ryots under the Manarkottai Zamin had defaulted in paying the rent and therefore for the realisation of the arrears of rent the tenancy right had to be sold. The rent sale took place on 18th January 1932. It was confirmed on 11th March 1932 and a certificate issued in favour of the Zamindar who bought in the lands on 30th April 1933. After the estate purchased the occupancy rights, patta was sought to be granted to the person who bid for the largest amount at a private auction held on 18th September 1933, The tenancy rights were purchased by defendant 3 at that auction, and, as has already been mentioned, the title by devolution ended in defendant 5 ultimately becoming the tenant. It is also found by both the lower Courts that the present plaintiff had knowledge of the sale at least as early as 1935, though he took nearly eight years to file the present suit out of which this second appeal has arisen,
2. The suit by the plaintiffs was for recovery of possession of the properties on the footing that as there were no arrears of rent due from them to the estate the sale and all the subsequent proceedings were null and void. Paragraph 7 of the plaint recited various negative facts, viz., the absence of any arrears of rent, the absence of any notice under Section 112, Estates Land Act, the absence of a sale under Section 114, and the absence even of the fact that the Collector had issued an order directing the sale.
3. The lower Courts have now found as a fact that the notice under Section 112 which should have been served in accordance with the provisions of Section 78 (2) of the same Act had not been properly served on the tenant. It is found that the Village Munsif who went to serve the notice issued by the Collector under Section 112, could not find the tenant at all. His wife when questioned was not able to give any specific information regarding his whereabouts and therefore the notice was affixed on the door of the house as well as on the property in dispute. On the basis of this service the landlord applied to the Collector under Section114 of the Act for directing the sale of the property. Under Section 116, the Collector appointed an officer to conduct the sale which was held under Section 117 with the result that defendant 3 purchased the property.
4. The learned counsel for the appellant Mr. Bashyam raised various contentions regarding the validity of the sale and urged that the present suit for recovery of possession on the footing of the sale held on 18th September 1933 cannot be maintained. It is urged that under Section 114, Evidence Act, there is a presumption that judicial and official acts are properly done and in this case when the Collector after receiving an application under Section 114, appointed an officer under Section 116, Madras Estates Land Act to conduct the sale it must be presumed that there was a proper notice served upon the defaulter as is statutorily laid down under Section 112. The argument proceeds on the assumption that because the Collector himself was the authority to issue the notice to the defaulter intimating to him of the intention to sell the property and when later on the selfsame Collector as a result of the issuing of notice has directed the sale it must be deemed that the previous notice on the defaulter had been served on him properly; otherwise the Collector would not have directed an officer to conduct the sale. There is a singular absence of evidence in this case as to whether in appointing an officer to conduct the sale the Collector really exercised his individual judgment and found that the notice has been properly served. In the absence of evidence to that effect; I am not justified in presuming that Section 114. Evidence Act can be sought in aid by the appellant for requesting the Court to presume that there has been a proper notice. I do not think that the mere fact of the Collector having appointed an officer to conduct the sale would by itself justify the inference by the Court that there has been a proper notice.
5. The next argument of the learned counsel is that proper steps had been taken to serve the notice upon the defaulter personally and since personal service was not feasible the service by affixture must be deemed to be suffcient. For this argument reliance is placed upon two decisions of this court, Chinna Nagireddi v. Venkataramaniah, 23 M. L. T. 231 : A. I. R. 1918 Mad. 310 and Kamalammal v. Chokkalingam Asari, (1924) 45 M. L. J. 840 : A. I. R. 1924 Mad. 278 In the earlier of these cases Seshagiri Aiyar and Napier JJ. have held that when a property was sold for arrears of revenue under the Revenue Recovery Act without notice to the owner of the property and he came to know about the revenue sale only subsequently when the purchaser tried to get possession and thereafter brought a suit more than six months after the sale for possession the failure to give notice of the sale did not deprive the Collector of jurisdiction to effect the sale but was a mere irregularity because the sale was one that ought to have been set aside within six months. The principle underlying the case is that under the Revenue Recovery Act because there is a provision under Section 12 for bringing a suit to set aside a revenue sale within six months of its taking place the fact that such a sale took place without notice to the defaulter would not make it null and void according to the learned Judges. It seems to me that the principles enunciated by learned Judges cannot be safely applied to the facts of the present case as I shall show presently the decisions of this Court have held that the service of notice was an imperative condition precedent to the Collector appointing an officer to conduct the sale. I do not think that the decision in Chinna Nagireddi v. Venkataramaniah, 23 M. L. T. 231 : A. I. R. 1918 Mad 310 can be of any assistance in favour of the appellant.
6. The other case on which the learned counsel placed his reliance is Kamalammal v. Chokkalingam Asari, 45 M. L. J. 840 . A. I R. 1924 Mad. 278 Phillips and Venkatasubba Rao JJ. in their decision were of the view that a suit to set aside a revenue sale under the Madras Estates Land Act one year after expiration of thirty days after the sale is barred under Article 12(b), Limitation Act. I do not find any observations in this case which can be availed of in favour of the appellant. The learned Judges have in fact followed the decision in Karuppa Thevan v. Vasudeva Sastri, 6 Mad. 148 as well as the decision in Bhuban Mohun Maitra v. Girish Narain Moonshi, 13 C. L. J. 339 : 10 I. C. 87. I am of opinion that for the principle sought to be adumbrated in the argument of the learned counsel these decisions cannot be of any assistance.
7. On behalf of the respondents, two decisions of this Court, viz, Rajitagiripathi v. Pedakotayya, : AIR1933Mad855 and a more recent one of Wadsworth J. in Rameswaramayya. v. Zamindar of Kalahasti : AIR1939Mad502 have been relied upon. It seems to me that the (decision in Rajitagiripathi v. Pedakotayya, : AIR1933Mad855 is applicable to the facts of the present case. There, it is held that notice to the lawful ryot, is such an important condition precedent to the holding of a sale under Section 112, Madras Estates Land Act that the want of it must be regarded as making the sale a nullity. The Bench followed the decision of Ramesam J. in Kootoorlingam Pillai v. Sennappa Reddiar, : AIR1931Mad724 . It was further laid down by the learned Judges that where in a sale of a holding for arrears of rent personal service of notice was neither made nor attempted upon the defaulting ryot, but service by affixture was made, the statutory requirement as to notice had not been complied with since the Estates Laud Act contemplates service by affixture only when personal service cannot be effected after due and reasonable diligence.
8. It is unnecessary for me to discuss in any detail the questions that have been considered by the learned Judges because, in my opinion, the present case to a very great extent resembles the decision of Curgenven and Sundaram Chetty JJ. and I respectfully follow the observations of the learned Judges. The more recent and direct authority is the judgment of Wadsworth J. in Rameswaramayya. v. Zamindar of Kalahasti : AIR1939Mad502 . Though the learned Judge did not in terms refer to the earlier decisions, viz. Kootoorlingam Pillai v. Sennappa Reddiar, : AIR1931Mad724 and Rajitagiripathi v. Pedakotayya, : AIR1933Mad855 , the reasoning of the learned Judge is in the same strain and according to him under Section 112, Estates Land Act, the expression 'if personal service cannot be effected' means that personal service cannot be effected when reasonable attempts have been made to effect it. He further holds that to justify affixture there must be reasonable diligence on the part of the process-server and the mere temporary absence of the person to be served does not justify the affixture.
9. In the present case except the return of the village Munsif there is nothing to show that reasonable and due-diligence have been taken to serve the defaulter personally. Both the lower Courts have come to the concurrent finding that there has not been such due and reasonable diligence and I am bound by that finding of fact. Therefore, it seems to me that on the facts now found there has been no service as is contemplated under Section 112, Estates Land Act. Wads-worth J. observes that where a proper notice of sale has not been given even the fact that the defaulter was aware of the sale at the time when it actually took place will not be sufficient to validate the sale. In the present case there is no evidence to show that prior to 1935 the defaulter was personally aware of the sale. If that is so the fact that he came to know of the sale about three years later in 1935 will not make it obligatory upon him to come to Court to set aside the sale. The question is whether a sale held without notice under Section 112 is a nullity or whether it is a voidable transaction which could be later on set aside by a suit. The trend of the decisions of this Court adverted to by me above is to the effect that under the provisions of the Estates Land Act such a sale is a nullity and if the sale is a nullity there is no duty cast upon the defaulter to bring a suit to set it aside, for under the law it is impossible to set aside a transaction which is null and void. Therefore, the contention urged on behalf of the appellant that the respondent waited for nearly eight years before he brought the suit becomes pointless because the respondent could not bring a suit to set aside the sale but only bring a suit for possession of the property.
10. It is interesting to notice, as has been pointed out by Mr. Viswanathan for the respondent, that in Rajitagiripathi v. Pedakotayya, : AIR1933Mad855 , the sale took place in 1915 and the actual suit out of which the decision there arose was only filed just before the expiry of twelve years i. e. 1927. I would therefore hold, agreeing with the lower Courts, that the sale is null and void.
11. Mr. Bashyam then seeks to apply the principles enunciated in the Full Bench decision in Ramlalsahu v. Ramia, : AIR1947Pat454 where the learned Judges held that under Order 21, Rule 22 (1) notice to a legal representative has not been properly served and a sale held in execution of a decree would only be a voidable one and not a null transaction. The learned Judges have discussed in great detail the various decisions of the Patna High Court and have come to the conclusion they did, but in view of the decisions of this Court which hold that the sale under the Estates Land Act will be null and void if notice has not been properly served on the defaulter, I find it difficult to apply the observations of the learned Judges of the Patna High Court to the case under consideration.
12. There is one more circumstance which has to be considered and that is that this property has been mortgaged by the tenants to defendant 2 for a sum of nearly Rs. 1000 and the rights in the same have been sold for an arrear of Rs. 10 and purchased by the estate itself for the trifling sum of Rs. 9 and odd. As is pointed out by Mr. 'Viswanathan, if the defaulter knew that a sale was to take place for the sum of Rs. 10 he would not have allowed it to take place because the property was certainly worth about Rs. 1000 and the fact that later on before he brought the suit he redeemed a mortgage, is sufficient evidence to show of his absence of knowledge of the sale. This is a material circumstance which if necessary could be taken into consideration to justify the bona fides of the respondent, but, in the view which I take following the decision of this Court on the legal aspect, I do not think I should rest my case on the circumstance mentioned by me above. I am therefore of opinion that the lower Courts were correct in the decision arrived at and the second appeal fails and is dismissed with costs. No leave.