SYED SHABBIR HUSAIN Vs. SYED GHULAM HUSAIN

JUDGEMENT

(1.) THE facts are briefly as follows:--THE plaintiff-respondent Syed Ghulam Husain obtained a decree for preemption against the defendants in 1908. He deposited the pre-emption money in Court, but did not proceed further to have mutation of names effected in his favour and to take delivery of possession. It appears, however, that he took possession privately and in the year 1913 the defendants- appellants sued him for profits as their names appeared in the khewat. That suit 5was withdrawn and then the defendants-appellants filed another suit for profits. THE plaintiff then filed a suit for declaration of his title and for a declaration that the defendants had no right to get a decree for profits. This suit was decreed on the 2nd of September, 1916, but in the meanwhile the defendants had obtained a decree for profits on the 26 of August, 1916. THE defendants have now put this decree in execution and the plaintiff has filed this suit for a declaration that the defendants have no right to realise profits under the decree of the Revenue Court and the plaintiff's rights have become absolute under the Civil Court decree. THE only plea in defence with which I am concerned is that such a suit does not lie. THE First Court decreed the claim. On appeal the learned Judge of the lower Appellate Court has modified the decree of the First Court by declaring that the plaintiff is the owner of the property and entitled to profits in question and has further issued an injunction restraining the defendants from executing their decree for profits. THE defendants come here in second appeal and the contention pressed before me by their earned Counsel is that such a suit does not lie. In my opinion this contention must prevail. This case is very similar to the case of Mahabir Prasad V/s. Basant Lal 70 Ind. Cas. 444 : 17 A.L.J. 1028 which held that such a suit would not he inasmuch as the decree was a good decree the defendant being a recorded co-sharer at the date of the decree. Moreover, I think that the principle of the Full Bench case of Motto V/s. Ramlal 58 Ind. Cas. 772 : 43 A. 191 : 18 A.L.J. 1030 (F.B.) applies to this case with full force. THE decree for profits was one solely within the cognizance of a Revenue Court and the remedy open to the plaintiff in this case was either to bring to the notice of the First Court that a civil suit Was actually pending in the Civil Court relating to the title of this property, or to have gone up in appeal and brought the fact to the notice of the Appellate Court. He did not do so and it was due to his own laches that all this trouble had arisen. THE decree for profits being one passed by the competent Court of exclusive jurisdiction the Civil Court could not declare it to be invalid and incapable of execution. I, therefore, accept the appeal so far that in substitution of the decrees of the two Courts below I confine the decree in the suit for a declaration of the plaintiff's title to the property the right to get profit only. THE parties will bear their own costs of this litigation.