P.C. Krishnan Atiyoti vs Province of Madras and Others

Kunhi Raman, J.—The plaintiff is the appellant in this second appeal. The suit was for a declaration that the sale under the Madras Revenue

Recovery Act of a piece of land measuring 15 acres and 75 cents for Rs. 300 was not valid. The land belongs to the plaintiff''s tarwad. The plaintiff

is a junior member of the tarwad, but the Courts below have described him as the de facto manager of the properties of the tarwad and the suit has

been found to be maintainable. This has not been questioned here. The property was sold because arrears of land revenue had accumulated to the

extent of Rs. 20-14-0 and this amount was not paid by the karnavan who is defendant 9. The sale was on 28th May 1935. The assessment on the

property sold is Rs. 78-12-0 and the land is situated in the village of Cheravathur in Kasargod taluk of the South Kanara District. Several

contentions were urged in the Courts below on behalf of the plaintiff in support of his case that the sale was invalid and must be set aside, but the

main argument addressed here on behalf of the plaintiff is that there was a material irregularity inasmuch as the sale proclamation did not specify the

place of sale and this material irregularity has resulted in substantial injury because land which is admittedly worth Rs. 2000 has been sold for Rs.

300 for default of payment of Rs. 20-14-0 due as land revenue. The learned District Munsif was satisfied that substantial injury was caused to the

plaintiff-appellant as a result of the irregularity. But he was not prepared to hold that the irregularity complained of was sufficiently serious to

warrant interference. In. para 31 of his judgment he states as follows:

It is improbable that the property now in question which is 15 acres 73 cents, is worth only Rs. 300. If it was proved that there were irregularities

or illegalities vitiating the same, I would have had no hesitation in holding that there was substantial injury as a result thereof.

The same view about the injury caused is taken by the learned Subordinate Judge who states in para. 5 of his judgment:

So far as the inadequacy of the price fetched at the sale is concerned, there can be little doubt that the finding of the learned District Munsif is

correct.

The sale proclamation merely stated that the sale would take place in Cheravathur village which, it is conceded, is about six square miles in extent.

It did not mention the exact place where the sale would be held. It appears from the evidence that the sale was actually held in the vicinity of the

property that was sold. The appellant''s complaint is that the revenue authorities did not comply with the mandatory provisions of Section 36,

Revenue Recovery Act, Madras Act 2 of 1864 according to Clause (2) of which,

Previous to the sale the Collector or other officer empowered by the Collector in that behalf, shall issue a notice thereof in English and in the

language of the district, specifying the name of the defaulter; ...and the time, place and conditions of sale. This notice shall be fixed up one month at

least before the sale in the Collector''s office and in the taluk Cutchery in the nearest police station house, and on some conspicuous part of the

land.

In the present case it is admitted that the notification referred to in this section did not mention the exact place, in the six square miles of the village

where the sale was going to be held. According to the section, it is obligatory to mention it. The contention of the respondents which found favour

in the Courts below was that it would be sufficient compliance with the provisions of Section 36 if the village in which the auction is to be held is

mentioned in the notification. I am not satisfied that this contention is correct especially in view of the nature of the village. In the present case, the

village is about six square miles in extent and as is characteristic of the districts of Malabar and South Kanara the residences of the inhabitants

would be found scattered all over the village and not crowded together in any particular part of it in the shape of a street or streets. The learned

Subordinate Judge states that according to the report of the officer who conducted the auction there were about 25 persons present at the sale and

he therefore thinks that there was sufficient compliance with the section. This does not appeal to me as a valid or sufficient reason for holding that

strict compliance with the provisions of the section is not necessary. As pointed out by the appellant''s learned advocate, the bidders'' list shows

that only four persons actually took part in the bids. Therefore it is very doubtful whether the statement contained in Ex. XII that 25 persons were

present is accurate. It is possible that crowd had collected when the auction was taking place but the members of such a crowd cannot be

regarded as persons who had attended the auction bona fide for the purpose of bidding or who were attracted by the notice published u/s 36. The

learned Subordinate Judge states further that there is no proof for the plaintiff that as the result of the omission to give the exact place of sale in the

village, any material injury was caused. As already stated both the lower Courts have agreed that the price of Rs. 300 realised at the sale for the

suit land measuring nearly 16 acres in extent is grossly inadequate and that there was substantial injury sustained by the plaintiff-appellant. In such

circumstances as pointed out in Bommayya Naidu v. Chidambaram Chettiar (1999) 22 Mad. 440 direct evidence is not necessary to connect

inadequacy of price realised with a material irregularity, where the latter has been proved; and the relation of cause and effect between the two

may be inferred where such inference is reasonable.

A mandatory provision of law which requires that the place of sale must be specified in the notification u/s 36 has not been obeyed. This in the

present case amounts in my opinion to serious irregularity and the irregularity has resulted in substantial injury to the owner of the property

according to the view expressed in Bommayya Naidu v. Chidambaram Chettiar (1999) 22 Mad. 440. Therefore the conditions necessary for

setting aside the sale have been fulfilled and the plaintiff is entitled to the relief asked for. In the result the second appeal must be allowed and the

suit decreed with costs throughout payable by all the respondents except respondents 1, 9 and 10. The appellant shall proceed in the first instance

against defendant 9 for recovering costs. (Leave refused.)