KANAKKU KARTHIAYANI PILLAI Vs. NEELACANTA PILLAI RAMAN PILLAI AND ANOTHER
LAWS(KER)-1968-8-45
HIGH COURT OF KERALA
Decided on August 18,1968

Kanakku Karthiayani Pillai Appellant
VERSUS
Neelacanta Pillai Raman Pillai And Another Respondents

JUDGEMENT

M. Madhavan Nair, J. - (1.) APPEAL by the 1st defendant continued by her legal representative. The facts are thus: S. No.529/5 and 11 of Nedumpana village belonged to the 1st defendant. It was sold for arrears of land revenue on 21st Karkitakam 1116 (1941) and purchased by the 2nd defendant who was also put in possession by the revenue authority. Ex. P -2 is the relative sale certificate, and Ex. P -3 the delivery report dated 3rd Kanni 1119 (1943). On 19th Kanni 1119 the 2nd defendant sold the western half of the property to the plaintiff as per Ex.P -1 and the eastern half to one Cheriyan by another deed. In 1121 (1946) the 1st defendant applied to the Collector to set aside the revenue sale. Though the Collector dismissed it, the Board of Revenue in revision allowed it and set aside the sale in 1950. The 2nd defendant and Cheriyan were alone made parties to the proceedings. The plaintiff was not made a party to the proceedings either before the Collector or before the Board of Revenue and was not therefore heard in the matter. The 2nd defendant took the matter in further appeal before the Government, also without making the plaintiff a party, but it was dismissed. Thereupon the 1st defendant moved the Collector to put her in possession of the property. Getting scent of it the plaintiff issued a notice under Section 80 C.P.C. to the Chief Secretary to the Government on July 30, 1957, and instituted this suit the very next day. The 1st defendant resisted the suit on merits and the State challenged the maintainability of the suit for want of sufficient notice under Section 80, C.P.C. The Munsiff, Quilion, dismissed the suit holding it to be not maintainable for want of sufficient notice under Section 80, and adding that the plaintiff was not a necessary party to the proceedings to set aside the revenue sale and is not entitled to claim adverse possession for any period before date of Government's final order on the application to set aside the sale. On appeal the Additional District Judge, Quilion, held that notice under Section 80 C.P.C. having been issued by the plaintiff to the State the suit cannot be dismissed as not maintainable after 5 years of its institution on the technical plea that on the date of institution it was premature, and that the order of the Board of Revenue would not bind the plaintiff who was no party thereto and decreed the suit and issued an injunction restraining the 1st defendant from dispossessing the plaintiff from his moiety of the property. Hence this second appeal.
(2.) TWO questions emerge for decision: firstly, whether the Revenue Board's order would bind the plaintiff who was no party thereto; and secondly, whether the 1st defendant can claim non -suit for lack of the statutory notice to the Government. In Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce ( : A.I.R. 1952 S.C. 409) an 'amendment petition' under Section 152 C.P.C. is held not to be a continuation of the suit but in the nature of an independent proceeding governed by the law prevailing on its date and not by the law on date of suit. It cannot then be doubted that the proceeding to set aside the revenue sale is not a continuation of the sale proceedings but a collateral independent proceeding. Here the proceedings to set aside the sale was instituted five years after the confirmation of the sale and two years after delivery of the property to the purchaser. It must be held to have been instituted only on the day the application was made to the Collector to set aside the sale and governed by the law and conditions of that day. Admittedly before that date the 2nd defendant the auction -purchaser had assigned the property in moieties to the plaintiff and Cheriyan. It appears that Cheriyan got himself impleaded in the proceedings. Plaintiff was not made a party to the proceedings throughout its course. The setting aside of a revenue sale affects rights of parties, and Section 33A of the Revenue Recovery Act (Travancore Act 1 of 1068) requires specific grounds to be made out therefor. It cannot then be doubted that a proceeding to set aside a revenue sale is a quasi -judicial proceeding. It is an elementary principle of natural justice, expressed in the maxim: "Audi alteram partem", applicable not only to judicial proceedings but to quasi -judicial proceedings, like the one concerned here, and even to an "administrative order which involved civil consequences" that an order or decision cannot be rendered against a person who was not given an opportunity to be heard in the matter. It does not matter whether the revenue sale was defective and therefore voidable under the Revenue Recovery Act. "It is well established that a contract or other transaction induced or tainted by frand is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice, of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded." (Ningawwa v. Ryrappa Shiddappa Hirekarabar : A.I.R. 1968 S.C. 956). Admittedly, long before the 1st defendant moved for setting aside the revenue sale, the plaintiff had purchased the western half of the property from the auction purchaser and that is a valid transaction, even if the revenue sale was voidable, unless it be proved that the plaintiff was aware of the voidability of the revenue sale when he made the purchase which is not the case here. The setting aside of the revenue sale after the property has vested in him under a lawful title, without notice to him, was not warranted in law or equity.
(3.) RELYING on Section 50 of the Act, which read: The Diwan (now Board of Revenue) may for sufficient reason, revise any orders passed or proceedings taken, by a Division Peishkar (Collector), Tahsildar or Proverthicar (Village Officer) under the provisions of this Regulation........ Provided that no order shall be passed under this Section without previous notice to the party to be affected by such order. Counsel contended that notice on a motion to set aside the sale or on a motion before the Board of Revenue to revise an order refusing to set aside a sale need be given only to a party to the proceeding and as the plaintiff was no party to the proceedings which led to the revenue sale he was not entitled to notice of the motion. My attention is invited by counsel to Eravi Pillai Krishna Pillai v. Maluk Mohammed Sahul Hameed (1953 K.L.T. 802 F.B.) where the expression 'parties' in Section 51 of the Revenue Recovery Act has been construed to refer only to parties to the proceedings against whom arrears of revenue were claimed. That section reads: Nothing in this Act shall be held to prevent parties deeming themselves aggrieved by any decision or order passed or proceedings taken, or purporting to be passed or taken under this Act, for arrears due or alleged to be due from such parties, from suing the Government in the Civil Courts. The expression "arrears due or alleged to be due from such parties" in the Section gives the indication as to the meaning of the word 'parties' in that section; and therefore it is clear that in the context of that section the word 'parties' meant only the persons from whom land revenue was claimed in the proceedings. Section 51, as its wording clearly purports, is to remove any doubt on right of suit against the government to parties aggrieved by proceedings under the Revenue Recovery Act, and it makes clear that the statutory proceedings under the Act will not debar parties from agitating their grievances in a civil court. The context of Section 50 is far different. It empowers certain authorities to exercise revisonal jurisdiction in proceedings under the Act and in doing so it commands that no order shall be passed in such revision without previous notice to the party to be affected by such order. It does not relate to institution of a proceeding to set aside a revenue sale, but relates only to a far later stage of proceedings before superior authorities sitting in revision of decisions already made by the original authority. The expression 'party' in the context must mean party to the proceedings in which the revision arises. With any stretch of imagination, the provisions of Section 50 cannot be construed to cure a defect of non -joinder of parties to the original proceedings -here the proceeding to set aside the sale - -which defect is continued in the revision proceedings also.;


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