Seshagiri Aiyar, J.
1. The case is one of first impression, but as it has been fully argued, I do not think it necessary to reserve judgment. The facts found are that the property in dispute was attached as belonging to the holding of defendants Nos. 2 and 3, who had committed default in the payment of rent. The plaintiff claimed the property as his own and contended that, as no arrears were due from him, the property should not be sold.
2. Notwithstanding the objection, the property was about to be sold, when the plaintiff paid the arrears claimed to be due under protest. In this suit, he sues for the money which he was thus compelled to pay. The landlord is the first defendant and defendants Nos. 2 and 3 are the tenants who claimed the property against the plaintiff.
3. The defences were that the land sought to be sold really belonged to defendants Nos. 2 and 3 and that the Civil Courts have no jurisdiction to entertain the suit. The Courts below held that the land belonged to the plaintiff and that the Civil Courts have jurisdiction.
4. Mr. Desikachariar's first contention is that the plaintiff ought not to have paid the money, as the Estates Land Act provides no machinery for collecting arrears from persons who were not in default. In my opinion Section 128 of the Estates Land Act permits a third party, whose property has been attached, to protect that property by paying the arrears said to be due on it. Mr. Desika-chariar's suggestion that as Section 128 gives a charge for the arrears, the only persons who are entitled to put in a claim are derivative owners like mortgagees, etc., and not independent full owners, is opposed to Clause (2) of that section. A derivative owner will have a charge and he can tack it on to the mortgage; an independent owner can institute other proceedings under Clause (2). Further, a person whose property is sought to be sold wrongfully and who pays the money to save it from sale has a right of suit independent of the Estates Act. [See Fatima Khatoon Chowdrain v. Mahomed Jan Chowdhry 12 M.I.A. 65: 2 Sar. V.C.J. 380 and Pamu Sanyasi v. Zamindar of Jayapur 25 M.d 540 In the latter decision, the right is said to be for money had and received.
5. If a claim can be presented under Section 128, Section 213 would not affect the right to sue in the ordinary Civil Court. Moreover, this is not a claim against the landlord alone for acts done under the colour of the Act, but against defendants Nos. 2 and 3 in the alternative for payment from them of the money paid by the plaintiff which was claimed against them. The restrictive language of Section 213 does not take away the plaintiff's right to recover the monies from defendants Nos. 2 and 3 in the Civil Court.
6. Next, coming to Section 213, I agree with Mr. Sarma that that section applies only where the relationship of landlord and tenant subsists and where the landlord has used the remedies given by the Act wrongfully. In this case, ex concessio no proceedings were taken against the plaintiff because he was not regarded as the owner of the property. The fact that the plaintiff is also a tenant of the common landlord cannot affect the question. For the purpose of the distraint proceedings instituted under the Act, he was a stranger. No arrears were claimed from him. No notice was served on him and the property was not sought to be sold as belonging to him. I take the scope of Section 213 to be to give a speedy remedy as between landlord and tenant in matters in regard to which the landlord, while purporting to invoke the aid of the Act, has failed to comply with the provisions enacted therefor. The object is to give a summary remedy to those against whom irregularities in procedure have been committed. I do not think that the section covers cases where there is no power in the landlord to invoke the aid of the Act against an individual. The analogy of Sections 89 to 91 to which Mr. Sarma drew our attention favours this view. In Sections 89 and 90, a complete remedy is provided for cases where moveable property of a third party is attached. By Section 91 the remedy of the 3rd party is to institute a suit in the Civil Court. I do not think that the Legislature intended wrongs to immoveable properties belonging to third parties to be differently dealt with.
7. The claim as laid in the plaint is really for money had and received for the use of defendants Nos. 2 and 3; there is an alternative claim against the 1st defendant for having compelled the plaintiff to pay that arrears. I do not think this is a claim for damages. The claim is under Section 69 of the Contract Act. [See Subramania Iyer v. Vengappa Seddi 4 Ind. Cas. 1083
8. For all these reasons, I hold that the decision of the Courts below is right. I would dismiss the second appeal with costs.
9. The dispute in this case was between a landholder, the appellant in the case, and a ryot, the first respondent, as to whether a certain parcel of land fell within the latter's holding. The landholder treated it as falling within the holding of another ryot and took proceedings against him for sale of the holding for arrears of rent. It has been found by the lower Courts that the land in fact fell within the 1st respondent's holding and that the sale thereof for arrears of rent under the Estates Land Act was without notice to the ryot under Section 112 and was wrongful. The 1st respondent, under Section 122, paid the amount claimed in order to stop the sale, and Section 128 gives him a remedy by way of charge on the holding and also reserves to him any other remedy to which he may be entitled. Clearly the 1st respondent's remedy was under Section 72 of the Contract Act for payment of money paid 'under coercion as against 1st respondent and his suit would be one for damages. Under the English Common Law an action in this case would lie under these circumstances upon an implied assumpsit, and the measure of damages would be the amount paid by the plaintiff.
10. Under Section 189 of the Estates Land Act and Article 21 of Schedule A, a suit for damages not otherwise provided for is heard by the Revenue Officer and a Civil Court is prohibited from taking cognisance of a matter in respect of which such suit might be brought. Under Section 213 a suit for damages before the Collector may be brought in respect of any proceedings taken under colour of the Act, or a neglect or breach of any of its provisions, and a suit may be brought in a Civil Court in any case not taken out of its jurisdiction by the Act.
11. The relation of landholder and ryot existed between the parties. The land in question formed part of an estate, and the sale of that land was certainly under the provisions of the Act, and there was neglect to give the 1st respondent notice that he was in arrears under Section 112 in respect of this land, and for these reasons I think that a suit to recover the amount paid by him falls within Section 213. Such a suit, being a suit for damages, falls, in my opinion, within Section 189 and Article 21 of Schedule A and is, therefore, taken out of the jurisdiction of the Civil Court. I do not think that any cause of action arises against the other defendants, because the plaint does not allege that they were bound to pay the rent for the plot in dispute and it was in fact payable by the plaintiff.
12. For these reasons I would allow this appeal and dismiss the suits with costs throughout.
Seshagiri Aiyar, J.
13. My learned brother takes a different view. The result is that the second appeal is dismissed with costs.