Only a person who is affected by the sale could apply to set aside the sale under Section 38 of the Madras Revenue Recovery Act.

JUDGMENT :

1. The plaintiff is the appellant. He filed the suit for a decree to set aside an order dated 3-8-1965 passed by the 2nd defendant, the Deputy Collector, Kothagudem, to put the plaintiff in possession of the suit land evicting the 2nd defendant from that land and to award costs of the suit and to grant such other reliefs as the Court might deem fit. The declaration is really sought in respect of a sale held under the Madras Revenue Recovery Act. The 1st defendant in the suit was the purchaser at the court auction.

2. The trial Court framed the following issues;—

(i) Whether the plaintiff has got valid title to the suit lands and he is in possession and enjoyment of the same?

(ii) Whether the auction conducted by the 2nd defendant is illegal and irregular?

(iii) Whether the plaintiff has a cause of action to sue?

(iv) Whether this court has got territorial jurisdiction to try the case?

(v) Whether the suit is in time?

(vi) To what relief?

3. After trying the various issues, the Court below, having due regard to its finding on Issues Nos. (i) to (iii) had dismissed the suit with costs. There was an appeal to the Court of the District Judge at Khammam. The learned Judge had dismissed the appeal with costs. The points framed by him for determination were:

(1) Whether the plaintiff can seek to set aside the sale?

(2) Whether the auction was not conducted according to the provisions of Madras Revenue Recovery Act and hence liable to be let aside?

4. On the second of the points, the learned Judge seems to have come to a finding rather hesitatingly. But nevertheless it mutt be held that he found against the appellant because he ultimately dismissed the appeal. Before concluding the second aspect, the learned Judge had stated that he found that the defendants failed to establish that the auction was held properly after due attachment and proper publication. I am inclined to think that this finding is erroneous. I do not think that the burden is on the defendants to establish this fact. It was for the plaintiff to establish all the facts necessary in order to entitle him to the reliefs sought for. I am more inclined to agree with the learned District Munsiff instead of with the District Judge on this point. It was clearly the duty of the plaintiff to have issued a notice to the 2nd defendant to produce all the relevant records in order to establish his case. In the circumstances of this particular case, I do not think the principle underlying the decision in Gopal Krishanji v. Mohd. Haji Latif]1 is attracted. The view of the two courts below is that the plaintiff has not established either his title or even his possession. These are concurrent findings of fact with which I cannot interfere sitting in second Appeal. In my view also the plaintiff has miserably failed to prove that be had any interest in the property within the meaning of S. 37-A of the Madras Revenue Recovery Act entitling him to make an application under Section 38 of the Act.

5. Sri K.F. Baba has laid great stress before me that while Section 37-A of the Act had prescribed “any person owning or claiming an interest in immovable property sold under this Act may at any time within 30 days from the date of sale deposit in the treasury of the taluk in which the immovable property is situated.

(a) a sum equal to five per centum of the purchase money:

(b) a sum equal to the arrears of revenue for which the immovable property was sold, together with interest thereon and the expenses of attachment management and sale and other costs due in respect of such arrears tad may apply to the Collector to set aside the sale, Section 38 says:

“(1) At any time within thirty days from the date of the sale of Immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity, or-mistake, or fraud” etc.;

6. There Is a proviso to this section which says that no sale shall be set aside on the ground of any such irregularly or mistake,