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Nallakaruppan Ambalam and anr. Vs. Vellamarunthan Ambalam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1933Mad374
AppellantNallakaruppan Ambalam and anr.
RespondentVellamarunthan Ambalam and ors.
Cases ReferredRajah of Ramnad v. Venkataramaiyar
Excerpt:
- - 1 fail to appreciate the force of this analogy. moreover, when section 112 distinctly requires service of notice on the defaulter, if it happens that the defaulters are more than one, notice must be served on all of them......it is admitted that no notice of the intention to sell as required by section 112 of the act was issued to velayutha. it is however alleged that a notice was served on plaintiff 1 in o.s. no. 453 of 1925. the first court held that there was no sufficient service of notice on him, whereas the lower appellate court found that service to be sufficient.2. the main question, argued in these second appeals is whether the sale sought to be set aside was illegal on account of the non-service of notice on velayutha who was the registered pattadar in respect of those lands under patta no. 2. there is no doubt that the procedure prescribed under section 3 46 of the act should have been adopted in effecting the transfer of patta in respect of lands nos. 139 and 140 in favour of the purchaser.....
Judgment:

Sundaram Chetty, J.

1. These two appeals arise out of two connected suits for setting aside a sale for arrears of rent, after declaring the same to be illegal, and also in the alternative for possession. The first Court decreed those suits in favour of the plaintiffs and those decrees have been confirmed by the lower appellate Court. Land NO. 130 is the subject-matter of O.S. No. 23 of 1926 and land No. 140 is the subject-matter of O.S. No. 453 of 1925. Both these lands were originally comprised in patta, No. 57 which stood in the name of plaintiff l in O.S. No. 453 of 1925. It appears that patta included some other lands also. By reason of a sale effected in favour of one Velayutha, the patta in respect of lands Nos. 139, and 140 was transferred to his name and a fresh patta viz., patta No. 2, was also issued to him. For arrears of rent these two lands wore brought to sale under the Estates Land Act; but it is admitted that no notice of the intention to sell as required by Section 112 of the Act was issued to Velayutha. It is however alleged that a notice was served on plaintiff 1 in O.S. No. 453 of 1925. The first Court held that there was no sufficient service of notice on him, whereas the lower appellate Court found that service to be sufficient.

2. The main question, argued in these second appeals is whether the sale sought to be set aside was illegal on account of the non-service of notice on Velayutha who was the registered pattadar in respect of those lands under patta No. 2. There is no doubt that the procedure prescribed under Section 3 46 of the Act should have been adopted in effecting the transfer of patta in respect of lands Nos. 139 and 140 in favour of the purchaser Velayutha. Consequent on the recognition of Velayutha as a raiyat by the land-holder, patta No. 2 was issued in his favour. In the circumstances set forth above, it is reasonable to hold that so far as lands Nos. 139 and 140 are concerned, the fresh patta No. 2 was issued in supersession of the old patta No. 57. It is however contended that plaintiff 1 in O.S. No. 453 of 1925 should also be deemed to be a pattadar, as these two numbers were not deleted from patta No. 57. The omission to amend patta No. 57 seems, to my mind, to be due to a mistake and it could never have been the intention of the land-holder to treat the pattadar of No. 57 patta to be a raiyat in respect of lands Nos. 139 and 140 even after the recognition of Velayutha as a raiyat in respect of these lands by issuing in his favour patta No. 2. If this is a correct understanding of the facts of this case, as I believe it is, we must hold that the defaulter within the meaning of Section 112 of the Act was only Velayutha and nobody else, as he was the properly constituted registered pattadar. The non-service of notice required by Section 112 upon a registered pattadar who alone is the defaulter for the purpose of that section is an illegality, and by reason of such an illegality, the civil Court has jurisdiction to set aside the sale of the holding. It has been so held by a Full Bench of this Court in a decision reported in Rajah of Ramnad v. Venkataramaiyar AIR 1923 Mad 6. On this short ground, the sale in question must be declared to be illegal and the decisions of this Courts below should be upheld.

3. It is however contended by Mr. Ramakrishna Ayyar for the appellants that by reason of the retention of lands Nos. 139 and 140 in the old patta, we may consider plaintiff 1 in Order 8. No. 453 of 1925, and also Velayutham as joint pattadars as regards the suit lands. If No. 2 patta was issued in supersession, of patta No. 57, it would not be possible to hold both of them as joint pattadars. Even treating them as joint pattadars, the question still remains whether a notice required by Section 112 of the Act should be served on both of them or not. It is contended on the analogy of Section 106, T.P. Act, that notice to quit issued to one of the co-owners would be sufficient and therefore notice served, on one of the joint pattadars must also be taken to be sufficient. 1 fail to appreciate the force of this analogy. There is no presumption that if a patta for certain lands stands in the names of two persons they are necessarily co-owners of those lands. The existence of the patta in the names of both may be due to so many causes. There is nothing in this case to show that plaintiff 1 in O.S. No. 453 of 1925 and Velayutha were co-owners of these lands. Moreover, when Section 112 distinctly requires service of notice on the defaulter, if it happens that the defaulters are more than one, notice must be served on all of them. On the general principle that the singular includes also the plural, I must take it that service of notice on the defaulters mentioned in Section 112 means service of notice on all the defaulters if they happen to be joint pattadars.

4. In any view therefore the non-service of notice on Velayutha is a fatal defect and renders the sale in question illegal. It is unnecessary to consider the other aspects of the case. The decrees of the Courts below are correct and these second appeals are therefore dismissed with costs.


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