A person with an interest in the land affected by a sale held under Section 112 of the Estates Land Act has the right to challenge it in the Civil Courts, emphasizing the importance of proper notice for the validity of such a sale.

Wadsworth, J.

1. This appeal raises the question of the right of a person, who is interested in land but is not the registered pattadar thereof, to bring a suit in the Civil Court to declare a sale held under Section 112 of the Estates Land Act to be invalid and to obtain an injunction protecting his possession. The essential facts of this case are that the two items in suit were originally acquired under an insolvency sale by one Solaimalai who let the plaintiff into possession under an agreement to sell. Solaimalais title ceased by reason of a sale for arrears of rent. The purchaser in the rent sale was one Muthuveerappa who under a private arrangement with the plaintiff allowed the plaintiff to retain possession of the land, though the patta was in Muthuveerappas name. In 1931 there was a sale for arrears of rent of one of the items which was bought in by the Zamindar, the fourth defendant here. In 1933 there was a similar sale of the other item which also was purchased by the Zamindar. After each of these purchases the plaintiff applied to the Zamindar for patta which was eventually refused and the Zamindar in 1934 granted patta for both numbers to defendants 1 and 2. Thereafter there was trouble about the harvesting of crops and magisterial orders recognised the right of defendants 1 and 2 to the harvest. But it has been found that the plaintiff continued in possession up to the time of suit. That finding is one of fact and though it is true that the learned appellate Judge makes a mistake with reference to certain payments of kist made by the plaintiff there are no grounds upon which I could hold that the finding of fact does not bind me in second appeal. It has also been found as a fact that with reference to both the rent sales, which the plaintiff attacked, there was no personal service, no proper attempt to effect personal service and no proof of any valid affixture. As a result of these findings the lower appellate Court decreed the plaintiffs suit. The appellants are defendants 1 and 2 the rival claimants and the fourth defendant the Zamindar.

2. It must be conceded on the findings of fact that, though the plaintiffs title anterior to the rent sales may have been defective, he was in possession with the permission of the registered pattadar and had a right to hold possession against any one other than the true owner. It is well established that a suit will lie in the Civil Court for a declaration that a sale held under Section 112 of the Madras Estates Land Act is invalid for want of service of notice, which is an essential preliminary to the validity of such a sale. It is strenuously contended by Mr. Venkatarama Sastri for the appellants that such a suit will not lie at the instance of any one other than the person who was entitled to have notice of the sale, that is to say, the registered pattadar. The contention is that a mere occupant who has not been recognised by the landholder has no right to be included in the formalities of a sale under Section 112 and that provided the registered pattadar acquiesces in the sale as one carried out with a sufficient degree of formality, it does not lie in the mouth of the person whose presence on the land has been tolerated by the registered pattadar to question that sale on technical grounds. There is a long series of decisions of this Court to the effect that when a sale is held without due notice as prescribed under Section 112 that sale is invalid. There are decisions to the effect that such a sale is a nullity, the question having arisen usually with reference to limitation. It seems to me unnecessary for the purpose of this case to decide whether a sale which, so far as the Court was concerned, was attended with all due formalities is merely voidable as the result of the failure by the Courts process server to do that which he purports to have done, or whether such a sale would be an absolute nullity which would bind nobody at all. I am, however, of opinion that