1. This revision petition is preferred against a Judgment in appeal dismissing a suit as one of which the Civil Courts have no jurisdiction with reference to the terms of Sections 189 and 213 of the Madras Estates Land Act.
2. The petitioner (plaintiff) had a decree under a mortgage binding lands in an estate. Defendants 3, 4 and 5 represented the mortgagors owning the kudivaram in the land. The first defendant was the zamindar. In 1929 the first defendant obtained an ex parte decree against defendants 3 to 5 for water cess alleged to be due on their land which was an inam. Under the decree a sale was held and a portion of the land was purchased in revenue sale by the second defendant. The plaintiff came to know of the sale and deposited the amount due thereunder which was a little over Rs. 1,300 and got the sale set aside. This was on 17th January, 1930. On 17th January, 1933, he filed the present suit in the District Munsif's Court in which he alleged a fraudulent conspiracy between the first defendant (the landholder) and defendants 3 to 5 (the tenants) whereby a decree was obtained for an amount not due and the land was sold to the second defendant, a friend of the parties. Plaintiff therefore claimed the right to get back from the first defendant and from the defendants 3 to 5 the amount which he was obliged to pay to get the sale set aside. Paragraph 12 of the plaint after setting out this claim based on fraud also says that if the amount for which the decree was passed was really due, it was due from defendants 3 to 5 and that as they defaulted with the result that part of the plaintiff's hypotheca was sold, the plaintiff was obliged to deposit the amount due and defendants 3 to 5 are bound in law to make good the said sum with interest. The trial Court treated the suit as one purely for damages for a fraudulent conspiracy carried out under colour of a proceeding under the Estates Land Act and applying Section 213 held that the suit was one cognizable only by a Revenue Court. The lower appellate Court did point out that there was an alternative claim against defendants 3 to 5 under Section 69 of the Contract Act. Nevertheless, it dismissed the appeal and confirmed the dismissal of the suit.
3. Now in so far as the suit was one for damages or compensation flowing from the tortious act of the defendants in conspiring to bring about an improper sale under colour of the Estates Land Act, it seems to me quite clear that Section 213 applies. It is true that in the case reported at Rajah of Vizianagaram v. Narasimharaju (1916) 3 L.W. 517 there was a difference of opinion between the two learned Judges on the question whether Section 213 of the Estates Land Act has any application to a suit for damages brought by a person who is not a tenant suing his landlord. With all respect to the learned Judge who held otherwise, it seems to me clear that Section 213. in terms gives a right of suit before the Collector to any person deeming himself aggrieved by any proceedings taken under colour of this Act and that such a suit would lie at the instance not merely of the registered pattadar or other person actually, impleaded as the defaulter in the original proceedings but would apply to a suit brought at the instance of any other person coming within the category of those who under Section 131 have a right to set aside the sale on deposit of the amount due. The Act contemplates proceedings against the registered pattadar but gives to other persons having an interest in the land a right to intervene and pay any amount which may be due and in a very large number of cases under this Act the registered pattadar is not in fact the person who pays the rent. It must have been the intention of the Legislature in using the wide term 'any person aggrieved' to give the remedy under Section 213 to any person who had any interest in the land on which the arrear was claimed.
4. It has also been contended that the suit as against the first defendant is not really a suit for damages or compensation but is a suit for a refund of an illegal exaction. The contention is supported by the citation of the case in Municipal Council, Dindigul v. Bombay Co., Ltd., Madras (1928) 56 M.L.J. 525 : I.L.R. 52 Mad. 207. I do not think this case has any bearing on the present facts. The learned Judges were dealing with an illegal recovery by a public body from a person alleged to be liable to tax and they held that in a suit by the person who paid the tax once the illegality was established, there was an equitable right to demand a refund of the excess and that such a refund was not damages. The present suit is not a suit of that nature. The decree stands and there is no question of a demand for recovery of a tax paid under protest. What the plaint alleges is a fraudulent conspiracy to secure an improper decree as a result of which a sale has been held and the plaintiff has been obliged to pay money to avert the consequences of that conspiracy. This claim sounds purely in tort and the measure of the plaintiff's damages will be the amount which he has been obliged to pay to save the land in which he is interested from the consequences of the conspiracy. It has been pointed out in the Full Bench decision in Narayanaswamy v. Venkataramana (1915) 29 M.L.J. 607 : I.L.R. 39 Mad. 239 that the word 'damage' used in Section 213 is used in a general way to specify pecuniary compensation in contrast to reliefs such as an injunction or a decree for which a more elaborate form of suit lies in the Civil Courts. There is also the authority of Pandalai, J., for the view that a suit for the refund of any excessive collection under colour of the Act from a tenant would itself be a suit for damages under Section 213. (Vide Rajah of Ramnad v. Ramanatha : AIR1931Mad609 But as I have said this is not a suit for a refund of an illegal collection, but it is a suit for compensation for a payment which the plaintiff was obliged to make owing to the tortious act of the defendants under colour of the procedure laid down in the Madras Estates Land Act. In so far as the plaint seeks relief against the first defendant and in so far as it seeks relief against defendants 3 to 5 on the ground of fraud under colour of the Act, the Civil Courts clearly have no jurisdiction having regard to the terms of Sections 213 and 189 of the Madras Estates Land Act.
5. But the alternative prayer, based presumably on Section 69 of the Contract Act, as against defendants 3 to 5, was one which the Civil Court could entertain and which the Revenue Court could not entertain. It is not clear why the learned Subordinate Judge did not remand the suit for the trial of this alternative claim. There was no point in returning the plaint for amendment for the suit so far as it should have been filed in a Revenue Court was barred by limitation. The proper course therefore was to dismiss the suit so far as it claimed damages from the first defendant and defendants 3 to 5 on the ground of fraud and proceed with the trial of the suit as against defendants 3 to 5 only on the alternative relief under Section 69 of the Contract Act. Unfortunately, defendants 3 to 5 are not represented before me, but I can see no reason why the suit as against them under the alternative relief should have been dismissed.
6. The revision petition is therefore dismissed as against the first defendant with costs. As against defendants 3 to 5 the petition is allowed in part and the trial Court will be directed to proceed with the trial of the suit against them in so far as the alternative prayer under Section 69 of the Contract Act is concerned. The costs as against defendants 3 to 5 will abide the result.