Alfred Henry Lionel Leach, C.J.
1. The appellant, the plaintiff in the suit, was the owner 6f the inam village of Dalavapalayam in the Tanjore District. In proceedings instituted under the Madras Revenue Recovery Act of 1864 the village was sold for arrears of water cess and quit rent alleged to be due to Government. The purchaser was the second defendant. The attachment and sale had been ordered by the Revenue Divisional Officer. The plaintiff applied to the Collector under Section 38 of the Act for an order setting aside the sale on the ground of material irregularity in the publication and the conduct of the sale. By a,n order dated the 5th June, 1940, the Collector dismissed the application. On the 17th june, 1940, the plaintiff served upon the Provincial Government, the first defendant, a notice under Section 80 of the Code of Civil Procedure. On the 26th August, 1940, he filed the present action in the Court of the District Munsiff of Tanjore. In his plaint he alleged that he was under no liability to pay water cess and that he was not liable in law for arrears of quit rent. He also averred that the sale was illegal by reason of the defects in the publication and the conduct of it. The reliefs claimed by the plaintiff were a declaration that the sale and the demand for arrears of quit rent were ultra vires and an order cancelling the sale. The second defendant pleaded that the suit could not be maintained without a prayer for consequential relief. On the 19th June, 1940, by an order passed under Section 40 of the Madras Revenue. Recovery Act by the District Munsiff of Tanjore the second defendant was put into possession of the property. It was in these circumstances that the second defendant maintained that the plaintiff was bound by reason of Section 42 of the Specific Relief Act to sue for possession and stamp his plaint according to the value of the property. This plea was accepted by the District Munsiff who dismissed the suit without deciding any of the other questions raised on the pleadings. His decision was concurred in by the Subordinate Judge of Tanjore on appeal. The plaintiff has now appealed to this Court.
2. In hearing an application under Section 38 of the Madras Revenue Recovery Act, the Collector is in reality sitting as an appellate Tribunal and any order passed by him on such an application is conclusive, subject to a suit being filed. Section 59 says that nothing contained in the Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under the Act, except as specifically provided, from applying to a Civil Court for redress, but it adds that the suit must be instituted within the six months from the time at which the cause of action arose. The right of suit given here corresponds to the right of suit given to a person aggrieved by an order under Rule 63 of Order 21, of the Code of Civil Procedure or by an order under Rule 103 of that order.
3. In Kristnam Soorayya v. Pathma Bee I.L.R. (1905) Mad. 151 a Full Bench of this Court held that the special right conferred by Section 283 of the Code of Civil Procedure, 1882, which corresponds to Order 21, Rule 63 of the present Code, is not controlled by the proviso to Section 42 of the Specific Relief Act and therefore the plaintiff in such a suit is not bound to ask for any further relief to which he may be entitled. The question whether the proviso to Section 42 of the Specific Relief Act applies to suits under Order 21, Rule 63, has not been raised in this Court. The same considerations which apply to suits under Rule 63, must, however, apply to suits under Rule 103. The question did arise in Firm Ram Chandra v. Sunderlal Singh : AIR1938Pat558 where the Patna High Court applied the decision of this Court in Kristnam Soorayya v. Pathma Bee I.L.R. (1905)Mad. 151 to a suit under Order 21, Rule 103. As it is unnecessary for the plaintiff to sue for consequential relief when he has taken action under either Rule 63 or Rule 103, it is difficult to see how he can be required to ask for consequential relief in a suit filed under Section 59 of the Madras Revenue Recovery Act.
4. The learned Advocate-General on behalf of the second defendant says that the fact that the plaintiff is suing for a general declaration that the Government had no power to collect water cess or arrears of quit rent takes the suit entirely out of Section 59. We are unable to accept this contention. The suit is clearly one under Section 59, but it contains an additional ground for relief. That in itself cannot bring the suit within the mischief of the proviso to Section 42 of the Specific Relief Act.
5. In Thiruvenkatacharyulu v. Secretary of State for India (1933) 66 M.L.J. 715 :I.L.R. 57 Mad. 501 a Division Bench of this Court held that an act which was in itself ultra vires had not got to be set aside; in other words it was void ab initio. In Gnanasambanda Pandara Sannadhi v. David Nadar : (1904)14MLJ433 another Division Bench of this Court held that where a purchaser at a revenue sale had been put in possession under Section 40 of the Madras Revenue Recovery Act the civil Court should order restitution if the sale was set aside. If the plaintiff, in this case succeeds in his pleas, the action of the revenue authorities in selling his village will be unlawful and he will be entitled to a declaration that the sale is void, which means that the District Munsiff will be in a position to order the second defendant to restore possession of the property to the plaintiff, if such an order is necessary.
6. The appeal is allowed and the case is remanded to the trial Court to hear and determine the other issues in the case in the light of this judgment. As the appeal has been opposed by the second defendant he must pay the appellants' costs in this Court and the Court of the Subordinate Judge. The costs in the trial Court will abide the further hearing. The plaintiff is entitled to a refund of the Court-fees paid by him in the Subordinate Judge's Court and in this Court.