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Syed Ghouse Sahib and ors. Vs. G. Mohamood Khan Sahib (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad567; (1941)1MLJ550
AppellantSyed Ghouse Sahib and ors.
RespondentG. Mohamood Khan Sahib (Deceased) and ors.
Cases ReferredFisher v. Ramaswami Udayan I.L.R.
Excerpt:
- - a tender of patta in a suit under section 56 of the estates land act, like a notice for ejectment in a suit for eviction of a tenant by a landlord such as required by section 106 of the transfer of property act, is a condition precedent, without alleging which, a complete cause of action cannot be said to have accrued in favour of the plaintiff; and when it is found that it was not alleged, not because the plaintiff had omitted to say so by a mistake in which case the plaint could be amended, but as the plaintiff had failed to comply with the condition which would have entitled him to maintain the action, the objection is not to the form merely but is more substantial and goes to the root of the case. 9. the third contention raised by learned counsel for the respondent was that..........word 'ryot' although used in singular in section 56 would cover all the ryots who were holding the land jointly as the singular according to the general clauses act includes the plural. it was held in fisher v. ramaswami udayan i.l.r.(1904)mad. 393, that the tender of a patta to one of several joint pattadars is not a sufficient tender under section 9 and one of the joint pattadars cannot be held to be the agent of the others.7. a feeble attempt was made before me to show that these defendants were not joint pattadars. but this was not seriously questioned before. had they not been joint pattadars, the suit would not have been dismissed by the deputy collector on that ground in the very beginning. moreover the fact that these were joint owners was, as observed before, admitted by the.....
Judgment:

Abdur Rahman, J.

1. The only question to determine in this appeal relates to the maintainability of the suit instituted under Section 56 of the Estates Land Act when pattas were not tendered to all the ryots who were in possession of a joint holding. The facts which led to this appeal are simple and may be briefly stated.

2. A patta was tendered on behalf of the plaintiff landholder to defendant 1; but he declined to accept the same. A suit S. S. No. 65 of 1931 was therefore brought by the landholder under Section 56 to enforce the acceptance of the patta against the first defendant alone. The suit was defended on various grounds, one of which related to the maintainability of the suit. It was contended that the land in respect of which the patta was being attempted to be enforced was a joint holding held by the first defendant along with certain other persons and that the suit could not proceed in their absence. This contention prevailed arid the suit was dismissed by the Deputy Collector of Dharmapuri. An appeal was taken against that decree of dismissal to the District Judge of Salem. But before it was heard a compromise was arrived at and a joint memorandum was presented on behalf of the parties. This was accepted by the District Judge and the suit was ordered to be remanded. The first paragraph of the order of remand passed by that officer reads as follows:

In S. S No. 65 of 1931 the plaintiff should implead the other joint owners mentioned in the written statement and then proceed with the suit.

3. On the receipt of record by the trial Court, the joint owners mentioned in the written statement' were impleaded by the plaintiff as defendants. On appearance before the Deputy Collector in obedience to the summons issued by him the latter urged that the suit was not maintainable against them as the pattas were not tendered to them before the institution of the suit. This fact was admitted but both the lower Courts overruled the contention. The other objection raised on behalf of the defendants was that of jurisdiction of the Revenue Courts to entertain a claim in regard to this holding. It was claimed to be a rent free service inam granted by Tippu Sultan for the up-keep of a mosque and as such not covered by the Estates Land Act. But, in view of the opinion that I have formed in regard to the first question, it is unnecessary for me to go into the second objection.

4. Section 56 of the Estates Land Act reads as follows:

When a ryot for one month after tender fails to accept the patta tendered to him and to give a muchilika in exchange, the landholder may sue before the Collector to enforce acceptance of such patta.

5. A perusal of the section would show that the tender of patta is a condition precedent without which a suit under the section cannot be held to be maintainable. The right of suit arises to a party only after the patta has been tendered by him to his ryot and, if the holding is joint, to the several ryots who hold the same jointly. No case was brought to my notice under this section, but two decisions under Section 9 of the Rent Recovery Act (Act VIII of 1865) which was the predecessor of the present Estates Land Act, were cited by learned Counsel for the appellant (See Sayud Chanda Miah Sahib v. Lakshmana Aiyangri I.L.R.(1876) Mad. 45 and Saminatha v. Viranna I.L.R.(1889)Mad. 42.) The language of Section 9 of the Rent Recovery Act, is almost identical with the present Section 56 of the Estates Land Act, and these two decisions take the same view which I am inclined to take on a perusal of Section 56 of the Act. It must therefore be held that the plaintiff had no right of suit against the defendant on whom the patta was admittedly not served.

6. What is the effect of this omission, then, on the first defendant? If the holding was a joint one, and the defendants were, as admitted in the joint memorandum presented to the District Judge, Salem, joint owners, a service of patta on one of them could not be in the absence of any allegation and proof of his agency on behalf of the others, regarded as sufficient. The word 'ryot' although used in singular in Section 56 would cover all the ryots who were holding the land jointly as the singular according to the General Clauses Act includes the plural. It was held in Fisher v. Ramaswami Udayan I.L.R.(1904)Mad. 393, that the tender of a patta to one of several joint pattadars is not a sufficient tender under Section 9 and one of the joint pattadars cannot be held to be the agent of the others.

7. A feeble attempt was made before me to show that these defendants were not joint pattadars. But this was not seriously questioned before. Had they not been joint pattadars, the suit would not have been dismissed by the Deputy Collector on that ground in the very beginning. Moreover the fact that these were joint owners was, as observed before, admitted by the plaintiff when he signed the joint memorandum and presented the same to the District Judge, Salem.

8. The next contention raised by Mr. Pocker, learned Counsel for the respondents was that in order to ascertain the maintainability of the suit it is not proper to travel beyond the allegations contained in the plaint. The proposition was somewhat broadly stated and it is not possible to accept it in the manner in which it was put. When an objection as to jurisdiction or as to the frame of a suit is raised by defendants or the Court has to see whether a plaint discloses any cause of action it will have, in order to determine these questions, to assume the correctness of the statements made by the plaintiff in his plaint and proceed to examine the objections on that basis. And this is exactly what I am trying to do. A tender of patta in a suit under Section 56 of the Estates Land Act, like a notice for ejectment in a suit for eviction of a tenant by a landlord such as required by Section 106 of the Transfer of Property Act, is a condition precedent, without alleging which, a complete cause of action cannot be said to have accrued in favour of the plaintiff; and when it is found that it was not alleged, not because the plaintiff had omitted to say so by a mistake in which case the plaint could be amended, but as the plaintiff had failed to comply with the condition which would have entitled him to maintain the action, the objection is not to the form merely but is more substantial and goes to the root of the case.

9. The third contention raised by learned Counsel for the respondent was that once a suit was instituted, the Court was seized of the whole procedure and the suit could not fail on a technical ground such as raised by the defendants. What the learned Counsel intended to urge was that once a person or persons is or are impleaded under the orders of a Court (although the order may have been passed in accordance with the request of one or both the parties to the litigation), the mandatory provisions of Section 56 of the Estates Land Act, and similarly of Section 106 of the Transfer of Property Act, must be taken to have been dispensed with and can have no application to the parties so added. The contention is in my opinion wholly unsound. No Court has the power to overlook the provisions of a statute, the compliance of which alone could confer the right of suit on the plaintiff. Even if the Court had ordered the joint owners to be impleaded suo motu, it would have been impossible to hold that its action had done away with the compliance of the provisions contained in Section 56 of the Estates Land Act. The Court did have the power to implead a party but had no power to exempt the plaintiff from carrying out his statutory obligations. These had to be performed in any case--and the more so when certain defendants were added on his own application.

10. For the above reasons, I must accept the appeal and setting aside the decision of both the Courts below dismiss the suit. But having regard to the technical nature of the plea, I would leave the parties to bear their own costs throughout.

11. Leave refused.


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