MAHABIR PRASAD Vs. BASANT LAL

JUDGEMENT

(1.) THE learned Judge of the lower Appellate Court has not correctly conceived the facts of the case, but we have gone into those facts and are of opinion that the plaintiff s suit was rightly dismissed by the Court of first instance and the lower Appellate Court s decree was a right decree. THE facts which are somewhat complicated are these: In 1875 a nineteen biswa share in Mauza Hatampur was mortgaged by one Haider Baksh to four persons, namely, Har Sarup, Kishen Lal, Chiranji Lal and Shambu Nath. THE defendant, Basant Lal, is the son of Har Sarup. THE plaintiffs, Mahabir Prasad and Hira Lal, purchased the rights of some of the representatives of the mortgagor from those persons. Basant Lal transferred some of his rights to his wife, Musammat Rupdei, the second defendant, and both of them on the 6th of September 1907 executed a sale-deed in respect of a portion of the nineteen biswa in favour of Kishori Lal and Sundar Lal defendants. Part of the consideration for the sale was left with the vendees for payment to the creditors of the vendors. Payment not having been made to the creditors and the creditors having realised their money from Basant Lal, he and his wife brought a suit in 1911 against Kishori Lal and Sundar Lal for unpaid purchase-money and damages and obtained a decree for the unpaid purchase-money on the 23rd of June 1911. THE decree so obtained was discharged on the 22nd of February 1913. On the 15th of August 1911 the present plaintiffs made a deposit under Section 83 of the Transfer of Property Act of a sum of money which they alleged to be due under the mortgage and to be payable to Basant Lal and his wife and the two purchasers from them. THEre was some dispute as to which of these defendants was entitled to the money deposited and the Court, therefore, refused to make any payment. THEreupon the plaintiffs withdrew the money from Court and subsequently brought a suit for redemption of the mortgage and obtained a decree against Kishori Lal and Sundar Lal. THEy had made Basant Lal and Musammat Rupdei defendants 16 the redemption suit but withdrew it as against them and the suit was dismissed as against those two persons. It appears that of the two plaintiffs the first plaintiff, Mahabir Prasad, is also Umbardar of the village. Basant Lal and Rupdei, whose names continued to be recorded in the revenue papers and who had not caused mutation of names to be effected in favour of their vendees, by reason of a portion of the consideration for the sale not having been paid, brought suits for profits against Mahabir Prasad as lambardar for the years 1319 and 1320 Fasti. THEy obtained decrees against him, and it is stated that they realised the amounts of the decrees for profts. After this the present suit was instituted and the prayer in the plaint was as follows: "It may be declared that defendants Nos. 1 and 2 obtained the decrees, dated the 18th January 1913 and 12th October 1915, for profits of 1319 Basli and 1320 Fasli without any right and recovered the amounts of the decrees for the profits of the aforesaid years from the plaintiffs unlawfully and Rs. 790 principal and interest as damages and costs of the suit and pendente lite and future interest may be awarded to the plaintiffs against the defendants Nos. 1 and 2 or such defendant as may be found responsible for it." THE main ground of the plaintiffs claim was that, as they had deposited the mortgage-money on the 15th of August 1911, they were entitled to the profits for which the decrees obtained by the defendants Nos. 1 and 2 from the Revenue Court were passed. Incidentally in the plaint they stated that those defendants had sold their interests in the mortgaged property to the other two defendants, but it seems that the real: ground of their claim was that they deposited the mortgage-money, and were, there, fore, entitled to the profits for the two years: mentioned above. This claim was dismissed by the Court of first instance and the decree of that Court was affirmed: by the lower Appellate Court. We think that on the ground union which the suit was brought, the claim could not be supported. During the years in question the mort; gage had not been redeemed as against the defendants Nos. 1 and 2. THEy had not delivered possession to their vendees by reason of the latter not having paid the whole of the purchase-money. THEir names were recorded in the revenue papers in the years 1319 and 1320 Fasli, and, therefore, they were entitled to profits for those years. THE learned Counsel for the appellant has ingeniously argued that the suit must be deemed to be a suit under Section 201(3) of the Agra Tenancy Act. We do not agree with this contention, firstly, because the suit has not been brought solely by the defeated defendant in the suits for profits, and, secondly, because this is not a suit for a declaration that the plaintiffs had no interest in the property during the years for which they claimed profits. THE real claim in the present case is to get back the money which the plaintiffs have paid under the decrees for profits. THE decrees when passed were right decrees in view of the fact that the names of the defendants Nos. 1 and 2 were recorded in the revenue papers in the years 1319 and 1320 Fasli and they were, therefore, entitled to claim profits for those years. It is admitted that, subsequently to the passing of the decree for redemption, the names of the defendants Nos. 1 and 2 have been removed form the revenue record, but during the years in question their names were. borne on those records and the decrees for profits were, therefore, properly passed in their favour. THE suit as brought was not, in our opinion, maintainable and was rightly dismissed. We dismiss the appeal with costs.