DARBARI LAL Vs. HAZARILAL

JUDGEMENT

(1.) THE plaintiff-appellant bought a four annas share in mouza Kanhargaon Nagpur from the former malguzar Rajkumar He brought the present suit for profits from the defendant-respondent, the village lambardar, for the years 1921-1922, 1922-1923 and 1923-1924. The main facts of the case are sufficiently clear from the judgment appealed against, and three questions arise for decision in the present second appeal. The first of these is as to whether the learned District Judge was correct in holding that the plaintiff could not claim profits for the year 1921-22, these having accrued in favour of the plaintiff's predecessor-in-title before the sale. The learned District Judge, relying on an unreported decision of Batten, A.J.C. in Second Appeal No. 736 of 1915, decided on the 19th March 1917, held that the claim for profits of the year in question could not be sustained as the sale amounted to a mere assignment of a right to sue within the meaning of Section 6, Clause (e), T.P. Act. Shortly after the learned District Judge gave his decision, an authoritative case on this point was published viz., Lachmi Narayan v. Dharamchand A.I.R. 1926 Nag 396, and it is obvious that prima facie by me unless, as I have been asked by the pleader for the respondent to do, I see cause to doubt the propriety or correctness of the reported decision and refer the question at issue to a Full Bench.

(2.) CONSIDERABLE stress has been laid by the pleader for the respondent on the decision of Suhrawardy and Graham, JJ., in, Khettra Mohan Das v. Biswa Nath Bera but, for my own part, I am unable to concur in the reasoning contained in that decision and the great weight of case authority, as has been pointed out by Hallifax, A.J.C. in the case quoted above, is to a directly contrary affect. Apart from the case authority, however, I can see no reason whatever for supposing that the right to claim profits, previously accrued on a property like the present one sold to the plaintiff-appellant-profits a right, in this instance expressly transferred-does not amount to an actionable claim within the meaning of the definition contained in Section 3, T.P. Act. On the other hand, I fail to understand how the right to claim a debt like the present one in respect of the profits for the year 1921-22 can be described with any propriety as the transfer of a mere right to sue. In view of the deliberate inclusion of the past profits for the year in question in the sale, it seems to me clear that there was a valid transfer conveyed to the present appellant of the right to sue for these profits. I can, in short, see no reason whatever for differing from the decision of Hallifax, A.J.C., quoted above and I may add that a corresponding view, in which I entirely concur, was taken by Drake-Brockman, J. C. in Second Appeal No. 111 of 1911, decided on 13th November 1912. I am of opinion, therefore, that the learned District Judge erred in holding that the profits for the year 1921-22 were not recoverable. (After considering the evidence the judgment proceeded) The best course in the present case will be to remind the appeal to the lower appellate Court which will, in its turn be at liberty to remand the case to the first Court for findings on specific issues relating to the points left undetermined. I may add, however, that, in my opinion, the question of the alleged profits from timber must be considered as closed and should not be allowed to be re-opened.