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1956 DIGILAW 50 (KER)

Kanakku Govinda Pillai Sankara Pillai v. State

1956-06-07

NANDANA MENON, T.K.JOSEPH

body1956
Judgment :- 1. This is an appeal by the plaintiff from the decree dismissing his suit for cancellation of an order passed by the Government setting aside a revenue sale. For realization of arrears of land revenue, in respect of properties belonging to Madathu Tarwad, 26 cents in S. No. 329/5 was sold on 26.5.1114 and was purchased by the plaintiff for a sum of Rs. 4 chs 7. The sale was confirmed on 6.8.1114. The 1st defendant applied to the Government on 25.2.1120 for cancellation of the order confirming the sale and in exercise of the revisional jurisdiction under S.50 of the Travancore Revenue Recovery Act, the sale was set aside. The plaintiff's case is that this property belonged to Arakathu Devaswom which had demised it on Kanom to Madathu Tarwad. One Arathan Pillai Kumara Pillai was the Karnavan of that Tarwad at the time of the revenue sale and he was the person whose name was entered in the Thandaper accounts relating to this property. The sale was conducted after due notice to Kumara Pillai. The plaintiff obtained sale certificate and delivery of possession in due course. According to the plaintiff, the order cancelling the sale is liable to be set aside as the reasons relied on by the Government are incorrect. He accordingly sued for cancellation of the order Ext. C and for an injunction restraining the 1st defendant from recovering possession of the property from him. The 1st defendant contended that the Madathu Tarwad had lost the Kanom right and possession long before the date of the revenue sale, as the Kanom right was sold in execution of the decree in O.S. No. 228 of 1074 of Trivandrum Munsiff's Court which was a suit instituted by the Devaswom for recovery of dues from Madathu Tarwad. Pursuant to the sale, the Devaswom obtained possession of the property and thereafter it was demised on Kanom to him on 13.7.1101. During the minority of the 1st defendant his mother had mortgaged his property with possession to one Raman Nadar. Although Madathu Tarwad thus lost title and possession of the property mutation of names in the revenue records was not effected and the property continued to remain in the name of Arathan Pillai Kumara Pillai. At the time the proceedings under the Revenue Recovery Act were taken, Madathu Tarwad had no interest in the property. Although Madathu Tarwad thus lost title and possession of the property mutation of names in the revenue records was not effected and the property continued to remain in the name of Arathan Pillai Kumara Pillai. At the time the proceedings under the Revenue Recovery Act were taken, Madathu Tarwad had no interest in the property. The notices preceding the revenue sale were not properly served and the reasons given by the Government for cancellation of the order confirming the sale are valid. It was also stated that the plaintiff had not obtained possession pursuant to the revenue sale. The 2nd defendant, the State of Travancore-Cochin, supported the 1st defendant. The lower court held that Madathu Tarwad had lost title to and possession of the property by reason of the execution proceedings in O.S. No. 288 of 1074 and that the demand notice issued to Kumara Pillai was not proper as his tarwad had lost title and possession by that time. It was also held that the demand notice was not served on Kumara Pillai and that the irregularities mentioned in the order of Government were valid grounds for setting aside the sale. It was further held that the plaintiff was not competent to impeach the said order. As regards possession of the property, inconsistent findings were entered. While it was held in Para.9 of the judgment that the possession was with the 1st defendant it was held in Para.16 that the plaintiff was in possession. The property was found to be 26 cents in extent. The suit was accordingly dismissed. 2. The main question for decision is whether the order Ext. B dated 12.7.1946 is liable to be set aside. The petition Ext. C was filed by the 1st defendant for cancellation of the sale on 25.2.1120. This is long after the date of the sale and about four years after the 1st defendant attained majority. S.50 of the Revenue Recovery Act which provides for revision does not prescribe any period of limitation. The order cannot therefore be set aside on the ground that the petition for revision was belated. The reasons supporting the order Ext. B are: (1) That notice of demand was not issued to a person who had subsisting right over the land at the time of the sale; (2) That the service of notices was irregular, and (3) That the sale was vitiated by fraud. The reasons supporting the order Ext. B are: (1) That notice of demand was not issued to a person who had subsisting right over the land at the time of the sale; (2) That the service of notices was irregular, and (3) That the sale was vitiated by fraud. It is contended on behalf of the appellant that all these grounds are unsustainable. 3. In considering the question whether the order Ext. B is liable to be set aside it is necessary to state that the jurisdiction of the Civil Court is somewhat limited. S.51 of the Revenue Recovery Act which provides a right of suit does not constitute the civil court as an appellate authority over the revenue court. Narayanan Chettiar v. Secretary of State (A.I.R. 1941 Mad. 561) cited by the learned counsel for the appellant was relied on by the respondent also. That was a case in which the auction purchaser sued for cancellation of an order of the Collector setting aside a revenue sale, in exercise of revisional powers under the Madras Revenue Recovery Act II of 1864. The provisions of that Act are more or less similar to those of the Travancore Revenue Recovery Act. S.59 of the Madras Act corresponds to S.51 of the Travancore Act. In considering the scope of S.59, it was held: "S. 59 is worded very widely and does not afford some ground for an argument that the civil courts have the same freedom in considering all the evidence relating to the conduct of the sale and the reasons for setting it aside as the Collector had in the first instance under S.38. If this is so the civil court sits in appeal over the decision of the Collector. It is however difficult to think that this is what was intended by the Legislature. There is no direct authority bearing on this question under the Revenue Recovery Act; but the general principle underlying such provisions found in such legislation is that members of the public should have some protection against illegal and arbitrary acts of executive officers. These provisions are not intended to set up civil courts as appellate authorities over the lawful acts of Government servants done in good faith. These provisions are not intended to set up civil courts as appellate authorities over the lawful acts of Government servants done in good faith. Where it can be but a matter of opinion whether there were sufficient grounds for the act of the executive authority, there would be no reason for interfering with the executive order; for the opinion of the executive officer on the merits of the application before him would be entitled to as much weight as the opinion of a civil court. Where the executive authority acts in some illegal or improper or arbitrary manner, then and then only, in my opinion could a civil court interfere with the order passed. Where, for example, there was ample evidence before the Collector to justify the setting aside of a sale under S.38(1), it is difficult to believe that the Legislature intended that the civil court could set aside that order merely because the petitioner had failed to adduce the same evidence before it". This accords with the view held by the Travancore High Court in Diwan of Travancore v. Kunju Variathu (15 TLJ 30 FB). The case has to be considered in the light of this principle. 4. It is not disputed that at the relevant time the property stood in the name of Arathan Pillai Kumara Pillai in revenue records. The Revenue authorities are bound to serve a notice of demand only on the person whose name appears in the revenue records. It is open to the plaintiff-auction-purchaser to contend that notice issued to Arathan Pillai Kumara Pillai was sufficient for bringing the property to sale. The question still remains whether notice of demand was actually served on him. It was held by a Full Bench of this court in Krishna Pillai v. Shahul Hameed (1953 KLT 802 FB) that the provisions contained in S.23(a) of the Revenue Recovery Act relating to the issue and service of demand notice are mandatory and that a sale held without the issue and service of such notice would be void. Arathan Pillai Kumara Pillai was at that time a Government servant working in a Village Office. The endorsement on the demand notice Ext. IV is that he was not seen at his residence and that the notice was therefore affixed on the building. Arathan Pillai Kumara Pillai was at that time a Government servant working in a Village Office. The endorsement on the demand notice Ext. IV is that he was not seen at his residence and that the notice was therefore affixed on the building. S.23(a)(2) provides that such demand should be served on the defaulter in the manner prescribed in the Code of Civil Procedure for serving summons on defendants. The relevant provisions in the Code of Civil Procedure are contained in O. V. It is clear from Ext. IV that there was no service as provided by O. V of the Code of Civil Procedure. R.15 provides that when the defendant cannot be found and has no agent empowered to accept service of summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. No such attempt was made by the serving officer who served Ext. IV. The summons can be affixed only when the defendant or his agent or such adult person as aforesaid refuses to sign the acknowledgment or when the serving officer, after using all due and reasonable diligence, cannot find the defendant. It was admitted by the plaintiff that the permanent residence of the defendant was not at the address stated in Ext. IV. There is no evidence that the serving officer used due and reasonable diligence. He does not even appear to have gone there more than once. As stated earlier, Kumara Pillai at that time was a Government servant in the same department and there was no difficulty in serving the notice on him through the department. It must therefore be found that the demand notice was not served on the defaulter as required by law. This ground alone is sufficient for invalidating the sale and this is one of the grounds relied on in Ext. B. In our opinion the order setting aside the sale was quite justified under the circumstances. It cannot therefore be held that the order Ext. B was passed illegally, arbitrarily or in an improper manner. In the view that we take regarding the service of Ext. IV it is unnecessary to consider whether the other notices were served properly. The Government had jurisdiction to set aside the sale in exercise of the revisional powers for sufficient reasons and the failure to serve Ext. B was passed illegally, arbitrarily or in an improper manner. In the view that we take regarding the service of Ext. IV it is unnecessary to consider whether the other notices were served properly. The Government had jurisdiction to set aside the sale in exercise of the revisional powers for sufficient reasons and the failure to serve Ext. IV on the defaulter is a sufficient reason. We accordingly hold that the conclusion reached by the court below on this point is correct. 5. The 1st Respondent has preferred a memorandum of cross-objections relating to two findings against him. One such finding is that the plaintiff was in possession of the property, pursuant to the revenue sale and delivery. It was conceded that this finding has no bearing on the decision of the main question as to whether the revenue sale was conducted illegally. The finding cannot be said to be totally wrong in view of the statement in the written statement of the 1st defendant that he was entitled to recover possession from the plaintiff. We do not see any reason to interfere with this finding. The other point raised in the memorandum of cross-objections is that the lower court should have found that the extent of the property was 62 cents and not 26 cents. All the records relating to the revenue sale including Ext. W, a petition filed by the 1st defendant before the Tahsildar, show that the extent of the property sold was only 26 cents. This finding also does not call for interference. 6. In the result we confirm the decree of the court below and dismiss the appeal with costs. The memorandum of cross objections is also dismissed.