1. It is first urged on behalf of the appellant that the Judge was in error in taking into consideration the evidence adduced by second defendant (whose name had been ordered to be removed from the suit) in proof of the revenue sale. The evidence was adduced when first and second defendants were jointly contending that the former's holding was under second defendant and not under plaintiff; and the finding originally called for had reference to that joint contention. Such being the case, we cannot say that the Judge was wrong in using this evidence in determining the issue as between plaintiff and first defendant. It is next contended that the Judge is in error in holding that plaintiff's perpetual lease is not binding on the purchaser in that it was granted for a sum below the faisal assessment and the proportional revenue payable on it.
2. A permanent lease is, in our opinion, an encumbrance within the meaning of Section 42 of Madras Act II of 1864. It creates an under-tenure which diminishes the value of the estate.
3. As for the contention that the permanent lease in question fell under Section 32 of the Act, and that, as there was no declaration by the Collector of its being invalid, it must be upheld, we are of opinion that the absence of a declaration by the Collector is immaterial and will not preclude the purchaser from avoiding the lease on the ground of its being an encumbrance under Section 42.
4. We are of opinion, therefore, that the decision of the Judge must be upheld for the reasons stated above.
5. This second appeal is dismissed with costs.