ABHAINANDAN PRASAD Vs. BHAGWAN DUTT PATHAK

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for arrears of profits. The position has arisen in a curious way. On the 15 of January,, 1920 one Ram Samujh executed a sale-deed in favour of the plaintiff Rai Bahadur Abhainandan Prasad under which he sold a certain share in village together with the arrears of profits in respect of sir and khudkasht lands due from the co-sharers on account of the previous years 1324,1325 and 1326 Fasli, for a total sum of Rs. 1,000. A suit for pre-emption was brought by the present defendants with regard to the share sold and was ultimately decreed. The judgment in the pre-emption suit is not on this file, but it is admitted that the decree for pre-emption was with regard to the share and it was on payment of the full consideration of Rs. 1,000.

(2.) The plaintiff instituted the present suit in the revenue Court claiming arrears of profits against the co-sharers. The Court of first instance granted the plaintiff a decree, but on appeal the learned District Judge has dismissed the suit. In the first Court a point was raised that the plaintiff being a legal practitioner had purchased an actionable claim, but that objection was overruled by that Court and the matter was not pressed any further, nor has that point been argued before me in this appeal.

(3.) The main ground on which the learned Judge dismissed the suit was that under the pre-emption decree the whole of the sale consideration, which had been advanced by Rai Bahadur Abhainandan Prasad had been paid back to him by the pre-emptors who happen to be the present contesting defendants Nos. 1 and 2, and the payment "must have the effect of destroying any rights which the plaintiff obtained under that decree." The learned Judge thought that, inasmuch as there remained no consideration for the transfer of the arrears of profits, that right no longer existed.