1. The plaintiffs brought this suit against Government for a declaration, that the sale of the villages of Peddipalum and Ankampalum in their Peddipalum Mokhasa for arrears of Revenue was illegal and to recover the property from the 2nd defendant, who purchased it at the revenue sale. The Subordinate Judge dismissed the suit because he found that the plaintiffs had no case on the merits fend because the suit was, in his opinion, barred by limitation. The plaintiffs appeal.
2. There is no dispute about the fact that this Mokhasa was held by the grantees and their heirs upon a favourable jodi or quit rent on condition of rendering military service and that it was liable to be subjected to the payment of full assessment in case of any alienation of the land; that in December 1906 the Government imposed full assessment on the ground that there had been such alienation, and that in March 1907 these villages were sold by an officer of Government purporting to act under the sections of Madras Revenue Act II of 1364, which provide for sales of immoveable property for default in payment of the revenue on the due dates.
3. There can be no doubt that this suit, which was instituted in July 1914, is barred by Section 59 of Act II of 1864, if that section which allows only 6 months' time for 'parties deeming themselves aggrieved by proceedings under this Act' to institute suits in a Civil Court is applicable to it. Mr. A. Krishnaswamy Ayyar for the appellants argues that if the Government acted illegally in imposing the full assessment there were legally no arrears of revenue and that the revenue sale was consequently held without any jurisdiction and must be treated as void ab initio.
4. This question has recently been considered by this Court in Vadlur Chinna Nagi Reddi v. Devineni Venkatramaniah 45 Ind. Cas. 653: (1918) M.W.N. 224 : 7 L.W. 468, ' where it was held, following the Full Bench decision Venkata v. Chengadu 4 Ind. Dec. 467 and distinguishing Secretary of State v. Radha Kishore Manikya 38 Ind. Cas. 379: 18 Bom. L.R. 1027 : (1917) M.W.N. 25 and other decisions of the Judicial Committee, that if there are No arrears or if the land in respect of which the arrears are due is not included in the holding of the alleged defaulter, that constitutes a want of jurisdiction which will render Section 59 inapplicable, but if the proceedings are intra vires though irregular, this section applies. This distinction between sales which though wrongful or irregular are substantially sales under the Act and sales which are ultra vires was observed in Raman v. Chandan 5 Ind. Dec. 503 and in Raman Naidu v. Bhasoori Sanyasi 26 M.k 638, which were not considered in the case in Vadlur Chinna Nagi Reddi v. Devineni Venkataramaniah 45 Ind. Cas. 653: (1918) M.W.N. 224.
5. Now in this case, the Subordinate Judge has found that the arrears for which the revenue sale in 1907 was held 'was for the non-payment of the usual jodi, not to speak of the usual jodi, not to speak of the enhanced amount levied by the Collector under the special circumstances.' It is, our opinion, unnecessary to consider the evidence upon which this conclusion is based because, if the plaintiffs' case was that the sale was without jurisdiction because there were no arrears at all due upon the land, it was their duty to allege and prove it.
6. If we refer to the pleadings, it does not appear from the plaint that the plaintiffs ever set up such a case. Their main contention was that the Government was not justified in treating, as a breach of the conditions as to alienation a sale in invitum held in execution of the money-decree in Original Suit No. 29 of 1900, by a competent Court to be an valid sale. In their written statement the Government admitted the allegation that they levied full assessment on the ground that the Court sale in Original Suit No. 29 of 1900 was a breach of the terms upon which the grant was made. At the trial in the lower Court the question was raised whether the Government were entitled to justify their action by relying upon the alienation made by the plaintiffs, which they had not mentioned in their written statement and as to which we cannot say on the evidence on record whether or not they were relied on when the enhanced assessment was imposed. It is unnecessary to consider this question. The revenue sale purported to he one which was authorised by Act II of 1864 and it was conducted by an officer competent to conduct sales for arrears of revenue under the authority of that Act. If the plaintiffs intend to challenge the right of the Government to bring this property to sale by showing that the provisions of this Act, including Section 59, could not be legally applied, they should have alleged and proved the necessary facts to take the case out of its scope. As they have failed in this respect we must agree with the lower Court in regarding the suit as barred.
7. The appeal is dismissed with costs (two sets).