(1.) This second appeals arises out of a suit for cancellation of the orders passed by the Government of Travancore as the Chief Revenue Authority of the State setting aside certain revenue auction sales of the plaint properties in 1112, 1113 and 1114 M.E. for arrears of tax, and for declaration of the plaintiffs title to and recovery of possession of the said properties with past and future mesne profits. The plaint properties, six in number, originally belonged to the sub tarwad of defendants 1 to 5, who got them under the partition, Ext. IV, effected in their main tarwad in 1104. For arrears of tax due in respect of these properties and other items, the plaint properties were sold in auction by the Revenue authorities under five sales in the years 1112, 1113 and 1114 M.E. Item 3 was sold on 23.7.1112, item 2 on 17.11.1112, item 1 on 6.9.1113, item 4 on 17.6.1114, and items 5 and 6 on 26.8.1114. The sale certificates in respect of these sales are Exts. K, A, B, E and F respectively. The auction purchaser under Exts. A and B was one Nallaperumal Mudaliar. After obtaining delivery of possession and also effecting mutation of names in pursuance of the said sale certificates Nallaperumal Mudaliar sold plaint items 1 and 2 to one Thanumalaya Perumal by Ext. H dated 7.5.1115 M.E., and Thanumalaya Perumal in his turn sold those properties to the plaintiff by Ext. C dated 20.7.1117 M.E. The auction purchaser under Exts. K, E, and F, Sahul Ahmeed, also sold plaint items 3 to 6 to the plaintiff by Ext. G dated 29.11.1115 after obtaining possession of the properties and effecting mutation of names in pursuance of those sale certificates. In pursuance of Exts. C and G plaintiff also obtained transfer of patta, and after taking those sale deeds he leased the properties to defendant 6. Subsequently on the applications of defendant 2 Government set aside the five revenue auction sales. The sale of item 1 was set aside on 7.9.1944 A.D., of items 4 to 6 on 22.6.1945, and of item 3 on 14.6.1945. Ext. O is the copy of the order relating to item 4, and Ext. R is the copy of the order relating to items 5 and 6. Exts. P and S are the copies of the orders relating to items 1 and 3 respectively. The sale of item 2 was set aside on 3.7.1945. According to the plaintiff, the orders passed by the Government setting aside the revenue auction sales are without jurisdiction and ab initio void as they were passed without notice to him. His case is that as he had become the full owner and obtained transfer of patta long before defendant 2 applied for setting aside the revenue sales, he should have been made a party to the proceedings taken on the applications of defendant 2 and that, as he was not made a party to those proceedings and the orders therein were passed without notice to him those orders are void and are not binding on him. According to the plaintiff, it was only when defendant 6 refused to pay him the rent for the Kumbhom crop of 1121 M.E. and told him that defendants 1 to 5 were demanding the rent that he got knowledge of the orders passed by the Government setting aside the revenue sales. Defendant 3 contested the suit. But the trial court repelled his contentions and decreed the suit holding that the orders setting aside the revenue auction sales were passed without jurisdiction and were void as the plaintiff was not a party to the proceedings for the setting aside of the revenue auction sales and the said orders were passed without notice to him. The lower appellate court also did not accept the contentions of defendant 3 and confirmed the trial courts decree. Defendant 3 has therefore brought this second appeal.
(2.) It is contended on behalf of the appellant that the plaintiffs suit is not maintainable and should be dismissed on the short ground of failure to make the Sirkar a party to it. According to the plaintiff the Sirkar is a necessary party to the suit and it is not maintainable without the presence of the Sirkar on the party array. This contention is sound and has to prevail. The very cause of action on which the plaintiff has brought the suit is furnished by an act of the Government. If the Government had not set aside by the orders, Exts. P, Q, R and S, the revenue auction sales, the cause of action for this suit would not have arisen at all. The prayers in the plaint are not only for a declaration of the plaintiffs title to the plaint properties and recovery of possession of the same but also specifically for cancellation of the Government orders setting aside the revenue auction sales. When a Government order setting aside a revenue sale is sought to be cancelled in a suit, the Sirkar is a necessary party to the suit as no decree can be passed without the presence of the Sirkar on the party array. A revenue auction sale for arrears of tax is a compulsory sale of the property of the person from whom the arrears of tax are due to the Sirkar, and the claim for the arrears is automatically extinguished or reduced by the revenue auction sale to the extent of the sale price realised from the auction purchaser. When that sale is set aside by the Government, the Sirkar has naturally to refund to the auction purchaser the sale price paid by him and the right of the Sirkar to realise the arrears of tax and sell the property in revenue sale for realisation of the same would revive. If the order setting aside the revenue sale is cancelled in a suit to which the Sirkar is not a party, the decree in the suit would not be binding on the Sirkar, and therefore, in spite of the decree in that suit it would be open to the Sirkar to enforce the right to sell the property again which they got as a result of the Government order setting aside the revenue sale. After the refund of the sale price to the auction purchaser consequent on the Government order setting aside the revenue sale, the interests of the Sirkar will be vitally affected if the Government order setting aside the revenue sale is cancelled in a suit to which the Sirkar is not a party and the cancellation of the Government order by the decree in the suit is held to be binding on them. In that case, the Sirkar would lose the sale price obtained under the revenue sale, which had to be refunded consequent on the Government order setting aside the sale, and they would also lose the right to sell the property again for arrears of tax which was revived on the setting aside of the revenue sale. Therefore, in any view of the case the Sirkar is an absolutely necessary party in a suit in which the Government order setting aside the revenue sale is sought to be cancelled. It follows that the present suit is not maintainable as the plaintiff has not impleaded the Sirkar in it.
(3.) At the time of hearing in this court the respondents counsel prayed that, if the Sirkar was found to be a necessary party, the suit should not be dismissed for non joinder of parties, and that the plaintiff should be given an opportunity to cure the defect and amend the plaint by impleading the Sirkar also as a defendant. In the circumstances of this case we do not consider it just and equitable to grant this prayer. The objection to the maintainability of the suit on account of the failure to implead the Sirkar was expressly taken by defendant 3 in his written statement, and the question whether the Sirkar was a necessary party and the suit was maintainable without impleading them was tried as a preliminary issue. The trial court decided the preliminary issue against the defendant, and when the defendant filed a revision petition in the High Court against the trial courts order, the plaintiff took up the definite position in the High Court that he was prepared to take the risk of proceeding with the suit without the Sirkar on the party array and that he could not be compelled to implead the Sirkar against his wishes. The revision petition filed by the defendant was dismissed solely because of the representation by the plaintiff to this effect. After having thus opposed and defeated all the timely attempts of the defendant to get the Sirkar also impleaded as a party in the suit and after having given an express undertaking that he would take the risk of proceeding with the suit without the Sirkar on the party array, it is not open to the plaintiff to ask that he should be allowed to amend the plaint and implead the Sirkar when it is found at the very last stage of the litigation, in the appeal against the final decree of the trial court, that the Sirkar is a necessary party and that the suit is not maintainable without them on the party array. It is a well recognised rule of law that if in spite of objection raised at the proper time the plaintiff persists in the suit without joining the necessary parties the suit has to be dismissed and that he cannot be allowed to remedy the defect in appeal (see Mullas Code of Civil Procedure, 12th Edition, page 514, and Mohanavelu v. Annamalai, 1923 (44) MLJ 249 and Naba Kumar v. Radhashyam, 1931 (35) CWN 977. In the present case after the objection was raised the plaintiff not only persisted in the suit without joining the necessary parties but also made an express statement that he cannot be compelled to implead the Sirkar and that he is prepared to take the risk of proceeding with the suit without the Sirkar on the party array. He must abide by that statement and bear the consequences of the risk he so boldly accepted with open eyes.;