JUDGMENT Sen, J.
1. This is an appeal by the plaintiff, and it arises out of a suit for recovery of Rs. 1,251-4-6, principal, and Rs. 337-8-0, interest, in connexion with a certain transaction relating to the purchase of wheat which was entered into between the parties.
2. The plaintiff is a firm carrying on business at Binki, in the district of Fatehpur under the designation of "Kundan Lal Ram Chander." The defendants are the proprietors of the firm Lachmi Narain Shankar Lal, located at the same station. The plaintiff alleged that he had purchased 500 tons of wheat from a Bombay firm, named Ram Kishen Das Chiranji Lal, that the firm of the defendants purchased from the plaintiff 50 tons out of these 500 tons of wheat and that delivery was agreed upon on 21st May 1923. The defendants refused to take delivery because there was a fall in the price of wheat in the market. The plaintiff had to pay Rs. 1,251-4-6 to the Bombay firm on account of the defendants. Hence the suit.
3. The defendant firm consists of two partners, viz., Lachmi Narain and Shankar Lal. Lachmi Narain pleaded that neither he nor his firm entered into any contract with the plaintiff for the purchase of 50 tons of wheat. He contended that the transaction was of the nature of wager and that it was entered into by Shankar Lal on his own account and on his own responsibility. Shankar Lal pleaded that the contract was of the nature of wager and that he had already paid Rs. 1,260 as loss to the plaintiff and that the claim was not maintainable against him.
4. The Court of first instance upheld the contention of the defendants and substantially dismissed the suit. A decree was passed for a sum of Rs. 85-5-0. This position of the decree has not been challenged before this Court.
5. The lower appellate Court has affirmed the decision. The findings recorded by it are: (1) that the firm of Lachmi Narain Shankar Lal did not enter into a contract with the plaintiff for the purchase of 50 tons of wheat, (2) that Lachmi Narain was no party to the alleged agreement to purchase, (3) that the contract was of the nature of a wager and had been entered into between the plaintiff and Shankar Lal alone upon the latter's responsibility, (4) that the said contract was not capable of being enforced in a Court of law by suit, and (5) that the plaintiff had not established that he had paid Rs. 1,251-4-6 on behalf of Shankar Lal.
6. The lower appellate Court has assigned excellent reasons for coming to the conclusion that the transaction between the plaintiff and Shankar Lal was of the nature of a wager. The claim for recovery of loss in consequence of such a contract was not legally enforceable.
7. Upon the findings arrived at by the lower appellate Court no claim could, under any circumstances, be brought either against Lachmi Narain or against the firm of which he was a partner.
8. The claim being of the nature of wager, it could not be enforced against Shankar Lal. It is pleaded, however, that because Shankar Lal and the plaintiff were engaged on the same side in a joint venture and the plaintiff had to pay on account of Shankar Lal, he is entitled to recover the said amount from Shankar Lal, his partner. The findings arrived at by the lower appellate Court make it clear in the transaction relating to the purchase, the dealing between Shankar Lal on one side and the plaintiff on the other was that between principal and principal and not between principal and agent. Under these circumstances, if the transaction had in it the taint of wager, the plaintiff is not entitled to recoup his loss by suit against his partner.
9. The plaintiff is faced with another difficulty. The lower appellate Court has come to a definite finding that the plaintiff had failed to establish that he had paid Rs. 1,251-4-6 to the Bombay firm on behalf of the defendant. If this finding be not open to challenge, it completely concludes the claim. It has been argued, however, that the lower appellate Court has gone off the rails in recording a finding on this point, because it did not arise from the allegations of the parties. We have examined the plaint and the written statements. In para. 7 of the plaint, the plaintiff claims to have paid the aforesaid amount to the Bombay firm on account of the defendants. This allegation was distinctly denied by the defendants. The matter was, therefore, clearly in issue between the parties. It is true that no distinct issue was framed by the Court of first instance; but the lower appellate Court was entitled to go into this matter, which cut at the root of the claim. We are clearly of opinion that this appeal is without force, and it is accordingly dismissed with costs.