S K SAMSUVAVA ROWTHER Vs. SAYYAD MUHAMMAD ROWTHER

JUDGEMENT

(1.) THE substantial question which this second appeal raises is whether the real owner of a holding, who has not been recognized by the landholder, can upset a rent sale under a decree obtained by the landholder against the pattadar in a suit under Section 77, Madras Estates Land Act. I think it is perfectly clear that the learned Subordinate Judge is right in answering that question in the negative. THE whole policy of the Act is to enable the landholder to deal with the registered holder or pattadar of a holding, where such exists, to the exclusion of other persons interested in the holding who as such do not hold a recognizable position under the Act. This is the principle which has been embodied in Section 146 of the Act which enables a transferee to obtain recognition from the landholder. Unless he obtains such recognition the landholder is at liberty to deal with the transferring pattadar, i.e., as though the transfer had not taken place. It must follow, I think, a fortiori that, where a claim adverse to the pattadar is put forward, and is still sub judice in civil proceedings the same principle must apply. Mr. Ramaswami Ayyar for the appellant has conceded that the more summary procedure which is permitted by Secs.111 and 112 of the Act is to be taken against the "defaulter" and that there is authority in the Midnapore Zamindary Co. V/s. Muthappudayan AIR 1921 Mad 195 that in such a case, to use the language of Sadasiva Ayyar, J., the expression denotes only the man who is the registered pattadar or the heir of the registered pattadar or the persons whom the landholder has become bound to recognize by reason of the provisions of Section 146. Section 111 et seq., only provide one way for the realization of rent and another way is provided by a suit such as is in question now. It would certainly be anomalous that according as the landholder chooses to follow one way or the other the party against whom he could legally proceed with regard to the sale of the holding should be different. I think it is quite clear that inasmuch as the pattadar was a party to the rent proceedings which resulted in the sale, the appellants are not competent to challenge the validity of the sale merely on the ground that in separate proceedings in a civil suit they have established their title to the property. THE principle upon which the rent sale is held in this manner is that the rent is by Section 5 of the Act made a first charge upon the property. THE legal position has been discussed in Munisami V/s. Dakshinamurthi (1882) 5 Mad 371, which, although a judgment based upon the old Act and perhaps not therefore correct with regard to its assumption that the rent was a first charge, is, I think, a correct exposition of the legal position created by Section 5 of the present Act. Mathura Prasad V/s. Dasai Sahu AIR 1922 Pat 542 which held that a revenue sale was subject to the doctrine of lis pendens, was decided on the footing that the sale, although for arrears of revenue, was not free of all encumbrances i.e., that the revenue was not a first charge upon the property. In Kadir Moideen Maracair V/s. Muthukrishna Aiyar (1903) 26 Mad 230, it has been held that in the case of a purchaser at a revenue sale for arrears of revenue the doctrine of lis pendens will not apply, the reason being that the revenue sale is in enforcement of the right of the Crown paramount to the right sought to be enforced by the decree of the civil Court and not simply of the right, title and interest of the defaulter as in the case of a sale for arrears of income-tax. For these reasons, I think that the learned Subordinate Judge has reached the correct conclusion. I dismiss the second appeal with costs.