KHUSHALRAO BALAJI FASGE Vs. DEORAO UMAJI MARATHE

JUDGEMENT

(1.) THESE ; two appeals arc 'filed by common plaintiffs against the dismissal of their suits by the lower appellate Court except to the extent of annual rent for one year in. one suit which has been awarded to the plaintiffs. The suit'; have arisen, out of pre -emption proceedings. One Rukhma -nand Premsukh. who is not a party to these suits, was an absolute occupancy tenant of two fields bearing Nos. 73/74 called. Chikna and 79/80 called Khari. These two fields were sold, by the tenant to respondents -defendants for Rs. 5,000 on November 28, 1942.

(2.) UNDER the Central Provinces Tenancy Act No. 1 of 1920 as amended up todate (which will hereinafter be referred to as the Tenancy Act) a tenant cannot transfer an absolute occupancy without reference to Ms landlord except in certaincases. There is no dispute that Khushal, appellant No. 1, is the lambardar landlord, and as the absolute occupancies in these two fields came to be transferred in contravention of the provisions of the Tenancy Act, Khushal got the right of pre -emption. It appears that though the two fields were sold for a, composite consideration of Rs. 3,000, there were two revenue proceedings in in respect of the two fields. Revenue Case No. 7/XI -l was in respect of field No. 73/74 known as Chikna and Revenue Case No. 6/XI -1 was in respect of field No. 79/80 known as Khari. and the Naib Tahsildar fixed the price for each field and ordered the lambardar to deposit the amount by his order datedJune 5, 1944. On June 14, 1944, Khushal deposited the amount in respect of both the fields, and there is no dispute that the Naib Tahsildar executed thesale deeds in respect of these fields on the same date. Exbhit P -13 on the record is the sale -deed With reference to field Chikna and Exh.P -3 is the sale -deed. in respect of field.Khari. The two sale deeds came to be registered registered on June 15, 1944, and it is significant to note that these were presented for registration by Khushal and execution wasadmitted by the Naib Tahsildar. The Revenue Officer also passed an order that Khushal was to be placed in possession of,the two fields. But before possession could be actually delivered, respondent Deorao and his brothers, who were the purchasers, filed an appeal before the Sub -Divisional Officer against the order of the Naib Tahsildar granting pre -emption and applied for stay of delivery of possession, and it appears that the stay was granted on the same day with the result that actual possession was not delivered to the appellants. In these two appeals, the order of the Naib Tahsildar was set aside on November 11, 1944. Against these two orders, two appeals were filed by Khushal in the Court of the Additional Deputy Commissioner, who set aside the Sub -Divisional Officer's orders and restored the orders of the Naib Tahsildar on November 19, 1945.

(3.) THE trial Court held that the plaintiffs were entitled to mesne profits, but that their claim for mesne profits for 1944 -45 was time -barred while their claim for mesne profits for the year 1945 -46 was decreed in both the suite. As against these decisions the respondents filed two appeals regarding the award of mesne profits in respect of the year 1945 -46, while the plaintiffs cross -objected regarding the disallowance of their claim for mesne profits for the year 1944 -45. The appellate Court allowed the appeals and dismissed plaintiff's' suits holding that plaintiffs were not entitled to any mesne profits because their title to the two suit fields was not completed till they obtained actual possession on December 10, 1945. That is why plaintiffs' suits came to be dismissed by the appellate Court except that they were awarded the amount of annual rent for the field No. 78/74 Chikna for the year 1944 -45 in Civil Suit No. 16 -B of 1948.