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Judgment
Joseph Vithayathil, J.—Defendant 2 is the Appellant. The suit is for setting aside a declsiou of Government under the Travancore Land Conservn.ncy Act and the revenue sale held under the Revenue Recovery Act. The '' plaint properties belonged to the Plaintiff''s ln-anoh tarwad of which the Plaintiff is the karnavan. A case under the Travancore Land Conservency Act was taken against Govinda Filial Kochukunjan Filial, the karnavan of the Plaintiffs tarwad, on the ground that he encroached upon Sircar porom-boke land. He was convicted and ordered to pay prohibitory assessment and fine. For realisation of those dues the plaint properties, which belonged to the Plaintiff''s branch, were attached and sold in revenue auction on 20-10-1111 and purchased by Defendant 2 for Rs. 60 and odd. The total extent of the properties sold is 4 acres 12 cents. Kochukunjan Pillai preferred an appeal to the Division Peishkar, but it was dismissed. The revision petition filed by the Plaintiff before the Land Revenue Commissioner was also dismissed on 15-11-1115. Plaintiff, therefore, instituted this suit on 15-8-1116 for the reliefs mentioned above. It was alleged in the plaint that Kochukunjan Pillai did not trespass upon Sirkar poromboke land in his capacity as the karnavan of the branch tarwad of the Plaintiff and that, therefore, the Plaintiff''s branch could not be made liable for the prohibitory assessment and fine payable by Kochukunan Pillai. It was also alleged that the revenue sale was vitiated by fraud and illegality and that the properties were sold for a very low price.
Defendant 1 (Sircar) contended that the encroachment on poromboke land by Kochukunjan Pillai was In his capacity as the karnavan of the Plaintiff''s branch tarwad, that the properties of the branch were liable to be proceeded against for the amounts due from Kochukunjan Pillai and that there was -no illegality or irregularity In the conduct of the revenue sale. Defendant 2 also filed a similar written statement.
The suit was at first dismissed by the trial Court on the ground that u/s 18, Travancore Land Conservancy Act a suit against Government in respect of an order passed under the Land Conservancy Act would be maintainable only on the ground that the land in respect of which the order was passed was not Government land. Hume the Plaintiff admitted that the land encroached upon was Sircar poromboke it was held that the suit to set aside the decision of the Government was not maintainable. In appeal filed by the Plaintiff from this decision, the Travancore High Court held that the real question for determination in the suit was whether Kochukunjan Pillai in encroaching upon Sircar land acted in his capacity as the karnavan of the Plaintiff''s branch tarwad and whether the properties of the branch tarwad could be made liable for the prohibitory assessment and fine which Kochukunjan Pillai was liable to pay. The High Court, therefore, remanded the case for fresh disposal. After the remand, the Court below held that Kochukunjan Pillai encroached upon Sircar poromboke land in his capacity as the karnavan of.the Plaintiff''s branch tarwad and that, therefore, tlv prohibitory assessment and fine due from him could be realised from the properties of the branch tarwad. That Court, however, held that the revenue sah was vitiated by illegality and material irregularity and that it was liable to be set aside. The revenue sale was, therefore, set aside. The parties were directed to bear their respective costs.
The only question for decision la this appeal is whether the revenue sale is vitiated by illegality and material irregularity and whether it is liable to-be set aside.
Exhibit X is the notice issued from the Taluk Office to Kochukunjan Pillai demanding payment of the prohibitory assessment and fine. It is dattd 2-7-1110. He was, called upon to pay the prohibltoiy assessment and fine within seven days from the date of notice. This notice was served on him by affixture on 19-7-1110, i.e., ten days after the expiry of the period of seven days fixed in the notice. This certainly cannot be regarded as proper notice. Ex. XXI is the notice issued u/s 23A of the Revenue Recovery Act. It is dated 21-7-1110. This was served by affixture on 27-7-1110 on the ground that Kochukunjan Pillai was not present in his house when the notice was taken to him and that he had gone to Tripunithura. Notices Issued under the Revenue Recovery Act have to be served in the manner pie-, scribed by the CPC for serving summons on Defendants. Order 5, Rule17, CPC prescribes the procedure to be followed by the serving officer before summons can be '' served by affixture. It is the duty of the officer to use all reasonable diligence to effect personal service of the summons before substituted service is resorted to. In this case, the serving officer did not use any diligence at all to effect personal service of the notice on Kochukunjan Pillai. According to the endorsement on the notice, Kochukunjan Pillai had gone to Tripunithura when the serving officer went to his house. It was the duty of the officer to ascertain when he was likely to return and to go to the house again for effecting personal service of the notice. Nothing of the kind was done by the serving officer. In the circumstances it cannot be said that there has been pro-per service of the notice on Kochukunjan Pillai.
The question was considered by a Full Bench of this Court in Krishna Pillai v. Sahul Bameed, 1953 Ker L T 802 : AIR 1953 Ker 491 (A), It was held in that case as follows:
It Is, therefore, clear that the compliance with the provisions contained in Section 23 (a) is a condition precedent for conducting a sale under the Act and that it is only when that condition is satisfied that the revenue authorities get jurisdiction to sell the property of the defaulter.
It was further held:
If the issue of a written demand is a necessary condition for conducting a sale under the Act it necessarily follows that the service of that demand is an equally necessary condition. Unless the demand notice is served on the defaulter it cannot be said that a demand has been made on him.- What thi section says is that "a written demand signed by the Tahsildar shall be served on the defaulter", and sub.section (2) of the section says that ''such demand shall be served on the defaulter in the manner pre-, scribed in the CPC for servlnft'' summons on Defendants''. No purpose will be served
by the issue of a.demand notice unless it is served on the defaulter ....
It is only''if the notice is served in the manner prescribed in the CPC that it can be said that the notice has been served on the defaulter. If the notice is not so served it has to be taken that it has not been served in the manner prescribed by the section and thai, consequently the requirement of the section has not been satisfied."
So long as there has not been proper service of the demand notice in this ease it has to be held that |the revenue sale was conducted by the Tahsildar I without jurisdiction and that it is void.
Again, u/s 32 of the Revenue Recovery Act, notice of sale ha.s to be posted at least thirty days before the date of sale in the nearest police station, Pakuthy and Taluk Cutcheries, and on some conspicuous part of the property to be sold. The sale in this case was held on,20-10-1111, Ex. XIV, notice of sale published in the police station, contains the endorsement that it was posr.ed there on 21-10-1111, i.e., a day after the sale. Ex. XIV (a), notice published in the Pakuthy Cutchery, shows that it was posted there on 14-10-1111. Ex. XIV (b), notice of sale published in the property, also shows that it was posted there only on 14-lu-llll. Ex. XIV (c;, notice published in the Taluk Cutchery, shows that it was published there only on 20-lO-Hil, i. e., the date of sale. Ex. XV is the notice of sale sent to iKochukunjan Filial. This was at first returned unserved with the endorsement dated 7-10-1111 to the [effect that he was in the Alleppey Civil Jail. The notice issued again was served.by affixture on 17-10-1111 although Kochukunjan Pillai was still confined in the civil jail. It is clear that this was not proper ''service of the notice.
It was fairly conceded-by learned Counsel for the''Appellant that the revenue sale in this case was vitiated by illegality and material irregularity. ''The fact that 4 acres and 12 cenos of paddy land was sold for Rs. CO and odd also goes to show that [there was no proper publication of the sale. We, therefore, confirm the judgment and decree of sue Court below and dismiss the appeal with costs.