1. In this suit the plaintiff-appellant seeks to enforce a mortgage on the plaint land which originally was in occupation of the first defendant and which was afterwards sold in a rent sale to the third defendant and by him transferred to the second defendant. The fourth defendant is the landlord.
2. The mortgage was not effected with the permission of the landlord and consequently under Section 125 of the Estates Land Act it is not binding on a purchaser in a revenue sale. The second defendant is, therefore, in no way bound by the mortgage unless it is established that the revenue sale was invalid. The plaintiff made certain allegations in his plaint to the effect that the sale was invalid because it was conducted collusively and fraudulently, that there was no proper notice by beat of tom-tom and that his mortgage right was not announced at the time of the sale or in the sale proclamation.
3. When the issues were framed, Issue No. 2 was framed on this allegation as follows:
Whether the rent sale, under which the second defendant claims, is invalid for all or any of the reasons alleged in the plaint.
4. Although the issue was framed in this way, the District Munsif appears to have allowed the plaintiff to adduce evidence as to the alleged irregularities in the conduct of the sale, such as, that the time and place of sale were not in accordance with the sale proclamation, and the District Munsif held that the sale was not invalid, and dismissed the suit.
5. In appeal it was contended that the plaintiff had proved these irregularities and that was argued before the lower appellate Court, and the lower appellate Court held that the plaintiff had not proved these additional irregularities and decided that there was no evidence as to the exact time when the sale commenced, or as to the exact distance from the notified place of sale to the place where the sale was held.
6. It is now contended here that the burden is upon the fourth defendant, the landlord, to prove every condition necessary for the validity of the sale and reliance is placed on Dorasamy Pillai v. Muthusamy Moopan  27 Mad. 94. It was no doubt held in that case that it is for the landlord, who seeks to avail himself of the special procedure by way of distress provided for by the Act, to show that the requirements of the Act have been complied with. I do not think that there is any need to question this proposition of law, but, even if it is applicable to the facts of this case, of which I am very doubtful, I do not think that, in the circumstances, the plea can be taken now.
7. An issue was framed as to certain allegations and no others, and consequently the defendant had no opportunity of adducing evidence to prove that the sale was conducted properly with reference to the time and place mentioned in the sale proclamation. The plea that second defendant failed to prove all the facts necessary to prove a valid sale has never been raised until this second appeal, and, therefore, if relief were to be given to the plaintiff, it would be necessary to re-try the case from the beginning. As a matter of fact the evidence in the case is not before me, but evidently the positive evidence for the plaintiff was insufficient to prove any irregularity in the sale as held by the lower appellate Court. I see no reason now for re-trying the case de novo. As a matter of fact, it appears to me that in this case the fourth defendant, who is the landlord, does not seek to avail himself of the special procedure by way of distress or sale provided for by the Act. It is the purchaser whose rights are sought to be limited by imposing on him a mortgage to which he would not be liable if the sale had been properly conducted. The landlord has but a very small interest in the matter; for it merely means that he has one tenant instead of another and there is nothing to show that that would benefit him in any way, The second defendant, under Section 125, is entitled to the whole property free of this mortgage which the plaintiff deliberately took without getting the sanction of the first defendant's landlord, although he ought to have known that such a mortgage would not be an encumbrance binding on the property. In this view I do not think that Dorasamy Pillai v. Muthusamy Moopan  27 Mad. 94, is applicable. In either event, I think that the lower appellate Court's decree must be upheld.
8. The second appeal is dismissed with casts of the second respondent.