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Sahu Harishchandra vs L. Bhagwan Das

High Court Of Judicature at Allahabad|25 April, 1944


1. This is a plaintiff's appeal in a suit for profits for the years 1344 and 1345 F. brought against the defendant.lambardar. The plaintiff purchased some property under a sale deed in the year 1936. The sale deed was, however, pre-empted and a decree for preemption was passed against the plaintiff on 12th May 1989. The pre-emptor deposited the pre-emption money on 10th August 1939, and he has now got possession of the property and has become the owner thereof. The plaintiff, however, claims that prior to this deposit on 10th August 1939, it must be deemed that he was a cosharer of the property and was entitled to get his share of the profits from the lambardar. He has, therefore, brought the suit for a period beginning from July 1936 to July 1938. The defendant-lambardar objected that the plaintiff had no right to claim any profits inasmuch as after the decree for pre-emption. it must be held that the pre-emptor was substituted in place of the plaintiff-vendees from the date of the purchase and, therefore, the plaintiff was not a cosharer during the period for which he has filed the suit. The defendant relied on a decision of this Court, Mohammad Mustafa Husain Khan v. Sri Ram ('27) 14 A. I. R. 1927 All. 202. Both the Courts below have relied on this decision and have dismissed the plaintiff's suit. The plaintiff has filed the second appeal and has urged that the decision of the Courts below was erroneous and he was entitled to a decree for the period in suit. A pre-emption decree is passed under Section 20, Rule 14, Civil P. C., which lays down the terms in which the pre-emption decree Should be worded. In accordance with the provisions of Order 20, Rule 14 a pre-emptor only becomes owner of the property on deposit of the pre-emption money. Order 20, Rule 14, Clause (l) (b) reads as follows:
...On payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment....
Learned counsel for the defendant has, however, urged that this decree is between the vendees and the pre-emptor and he is not bound by the terms of the decree and according to him reliance should be placed on the definition of the words "right of pre-emption" given in Section 4, Sub-section (9), Agra Pre-emption Act (NO. 11 of 1922). "Right of pre-emption" is defined there as "the right of a person on a transfer of immovable property to be substituted in the place of the transferee by reason of such right." Learned counsel argues that the substitution must necessarily be from the date of the said sale deed. We do not think that interpretation necessarily follows on the language of the section and the right of preemption there must be deemed to accrue in conformity with the rules in Order 20, Rule 14, Civil P. C., Section 24, Agra Pre-emption Act, reads as follows:
A. person who has obtained a decree for pre-emption in respect of any property shall acquire no title to that property until he pays the purchase money into Court in accordance with the pre-emption decree, but upon such payment being made any alienation of the property made by original purchaser or by any person claiming through him shall be voidable at the option of the decree-holder with effect from the date of such payment.
The said section also mentions that it is only on deposit of the purchase-money in Court in accordance with the pre-emption decree that the rights of the pre-emptor will accrue in the property. The point is well settled by a decision of the Judicial Committee and by various decisions of Court's in India: see Deokinandan v. Sri Ram ('90) 12 All. 234 (F.B.), Jai Devi v. Kalyan Singh ('28) 15 A.I.R. 1928 All. 376 at p. 543; Ram Lal v. Mohammad Faiyaz Ali Khan ('31) 18 A.I.R. 1931 All. 447 at p. 429 and Deonaudan Prasad Singh v. Ramdhari Chowdhari ('16) 3 A.I.R. 1916 P. C. 179 at p. 686. In view of these decisions and in view of the various provisions of the Agra Pre-emption Act and of the provisions of Order 20, Rule 14, Civil P. C., it is absolutely clear that the vendee is entitled to the rents and profits for the period prior to the date of deposit of the pre-emption money by the pre-emptor.
2. The plaintiff, however, claimed profits at gross rental. The lower appellate Court has held that the plaintiff is entitled to a sum of Rs. 654-9-5 only less costs of collection at 10 per cent. No reason has been shown why the figure found by the lower appellate Court should not be accepted. We therefore decree the plaintiff's suit for Rs. 589 only. In view of the fact that the parties have succeeded in part, we direct that they should bear their own costs in all the Courts. In view of our decision of the case itself the cross-objection is dismissed.
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Sahu Harishchandra vs L. Bhagwan Das


High Court Of Judicature at Allahabad

25 April, 1944