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Mahalinga Naicker Vs. Vellaya Naicker Alias Guruswami Naicker and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad190; (1926)51MLJ559
AppellantMahalinga Naicker
RespondentVellaya Naicker Alias Guruswami Naicker and anr.
Cases ReferredRajah of Ramnad v. Venkatarama Aiyar
Excerpt:
..... now if rule 89 of order 21 of the code of civil procedure does not apply to proceedings under the estates land act, i fail to see how rule 92(1) of order 21 can be made applicable simply on the ground that section 131 of the estates land act is similar to rule 89 of order 21. as observed in the full bench case above referred to, the jurisdiction of civil courts is taken away only in cases referred to in section 189 of the estates land act, and it was not even suggested that there is anything in this section to bar the suit out of which this second appeal arises. venkatarama aiyar (1922)43mlj264 as well settled that the civil courts have jurisdiction in all cases in which they would have had jurisdiction prior to the act except in so far as such jurisdiction is expressly or by necessary..........section 192 of the estates land act relates to the application of the code of civil procedure to 'suits, appeals and other proceedings under the act' and it lays down that 'subject to the other provisions, of this act and subject to the following modifications and additions, the provisions of the code of civil procedure shall apply to all suits, appeals and other proceedings under this act so far as they are not inconsistent therewith.' and in clause i.l.r. (1897) a. 129 it is stated that section 310-a (corresponding to rule 89 of order 21) shall not apply. now if rule 89 of order 21 of the code of civil procedure does not apply to proceedings under the estates land act, i fail to see how rule 92(1) of order 21 can be made applicable simply on the ground that section 131 of the estates.....
Judgment:

Viswanatha Sastri, J.

1. Plaintiff is the appellant. He sued to set aside a sale held under the provisions of Chapter VI of the Estates Land Act, and for a permanent injunction restricting defendants from interfering with his enjoyment, on the following grounds: (1) that the sale was held without due notice to him, (2) that there was no publication, and (3) that the price was grossly inadequate. The first Court held on all these points in favour of the plaintiff, and passed a decree as prayed for. Defendants appealed, and the Appellate Court held that a Civil Court had no jurisdiction to entertain such a suit and allowed the appeal. That such a suit would lie has been held by a Full Bench of this Court in Rajah of Ramnad v. Venkatarama Aiyar (1915) 29 M.L.J. 172. The vakil for the respondents contended that this ruling would not apply because, there was an application to set aside the sale under Section 131 of the Act, and that O.21, Rule 92(1) of the Code of Civil Procedure barred the suit. This rule runs as follows:

Where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

2. I may here state that Section 89 is similar to Section 131 of the Estates Land Act, and it was represented that the applications put in by plaintiff under this section were dismissed because the proper sum was not deposited. Section 192 of the Estates Land Act relates to the application of the Code of Civil Procedure to 'suits, appeals and other proceedings under the Act' and it lays down that 'subject to the other provisions, of this Act and subject to the following modifications and additions, the provisions of the Code of Civil Procedure shall apply to all suits, appeals and other proceedings under this Act so far as they are not inconsistent therewith.' And in Clause I.L.R. (1897) A. 129 it is stated that Section 310-A (corresponding to Rule 89 of Order 21) shall not apply. Now if Rule 89 of Order 21 of the Code of Civil Procedure does not apply to proceedings under the Estates Land Act, I fail to see how Rule 92(1) of Order 21 can be made applicable simply on the ground that Section 131 of the Estates Land Act is similar to Rule 89 of Order 21. As observed in the Full Bench case above referred to, the jurisdiction of Civil Courts is taken away only in cases referred to in Section 189 of the Estates Land Act, and it was not even suggested that there is anything in this section to bar the suit out of which this Second Appeal arises.

3. I would therefore allow the appeal and setting aside the decree of the Lower Appellate Court direct that that Court do re-hear the appeal. Appellant will get his costs in this Court and costs in the Lower Appellate Court will abide and follow the result. Appellant will get a refund of the Court-fee paid on the memorandum of appeal.

Odgers, J.

4. I agree. It was stated in the referring judgment in Rajah of Ramnad v. Venkatarama Aiyar : (1922)43MLJ264 as well settled that the Civil Courts have jurisdiction in all cases in which they would have had jurisdiction prior to the Act except in so far as such jurisdiction is expressly or by necessary implication taken away by the provisions of Section 189 of the Estates Land Act. The question put before the Full Bench was quite general in its terms. It is admitted that the only distinction between this case and that dealt with by the Full Bench is that two unsuccessful applications were made by the ryot under Section 131. I cannot see that this makes the slightest difference in principle and a suit by a ryot who says that his property has been improperly sold is expressly said by the Full Bench to be outside the restrictive provisions of the Madras Estates Land Act. I agree as to the order proposed by my learned brother.


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