DEONANDAN PRASHAD SINGH Vs. RAMDHARI CHOWDHRI

JUDGEMENT

(1.) The question in these appeals affects the right to mesne profits of certain lands which, by virtue of three different sets of judgments-first, two decrees of the Subordinate Judge on the 31st March, 1900; secondly, two decrees of the High Court at Calcutta on the 20th January, 1904; and thirdly, an Order in Council on the 25th January, 1908-have been alternately in the possession of Deonandan Prashad Singh and Baijnath Ram Goenka or their predeces-sors-in- title (hereafter, for convenience, called the appellants) Ramdhari Chowdhri and others or their predecessors-in-title (hereafter called the respondents), and, finally, of the appellants again. The explanation of this changing occupation is to be found in the nature of the proceedings in which those orders were made.

(2.) On the 30th June. 1898, two suits were brought by the two predecessors of the appellants each claiming a right to preempt a half share in certain property known as Taluka Rasulpur Bhatowni, which, on the 17th December, 1897, one Anupbati Koeri sold to Nirbhoy Chowdhri. The sale was alleged by the purchaser to have been made for 44,850 rupees and this amount was stated as the consideration in the deed of sale. The plaintiffs right to pre-empt does not seem to have been questioned; the only matter in dispute was whether they had made, in accordance with the rules of the Mahomedan law to which the right is subject, the " demands," which are a condition precedent to the exercise of the rights of pre-emption. The plaintiffs alleged they had duly performed the necessary formalities and also that they had offered to pay the full purchase price. The purchaser, however, declined to recognise their rights and it accordingly became necessary to institute proceedings. Unfortunately, in those proceedings, the plaintiffs challenged the reality of the purchase price named in the deed and alleged that the real purchase price was 37,000 rupees and not 44.850. The defendant denied the right of pre-emption and asserted that the full consideration was the true consideration for sale. The plaintiffs succeeded on both their contentions, and, by the decrees of the 31st March, 1900. to which reference has been made, the Subordinate Judge ordered that each of the plaintiffs should, within one month from the date thereof, deposit in the Court 18,500 rupees-half of the 37000 rupees, the price of the property claimed and then be awarded possession of the half share of the property claimed by right of pre-emption. The money was duly paid by both the plaintiffs and possession of the estate was delivered to them on the 19th July, 1900.

(3.) The judgment of the High Court reversed this judgment and set aside these decrees, declaring that there was no right of pre-emption and that the full consideration for the sale was 44,500 rupees. Possession of the estate was accordingly re-delivered to the original purchaser on the 20th July, 1904.