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Mohammad Ismail Vs. Hira Lal and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All449
AppellantMohammad Ismail
RespondentHira Lal and ors.
Excerpt:
- - ' we are clearly of opinion that the expression 'profits on account of a year' means the profits which arise out of the rental demand for that particular year irrespective of the year in which the collections are made. ' clearly what is meant is the profits as defined in the preamble are what was the subject of the sale......circumstances. the plaintiff had a sale deed dated 11th october 1930 from a cosharer for the profits on account of 1337-f. due from the lambardar. the first suit was brought by the plaintiff for collections on account of 1337-f. made in 1337-f. and that suit was decreed. the second suit brought by the plaintiff was for collections on account of 1337-f. made in 1338-f. and that suit was also decreed. the third suit is now brought for collections on account of 1337-f. made in the year 1339 and 1340-f. the assistant collector decreed the suit and there was no dispute on the ground that is now being raised. in the lower appellate court, however, the ground was raised that the sale deed did not justify the present suit the argument has found favour with the learned district judge that.....
Judgment:

Bennet, J.

1. This is an appeal by the plaintiff whose suit has been dismissed by the learned District Judge of Moradabad the plaintiff brought a suit for arrears of profits under the following circumstances. The plaintiff had a sale deed dated 11th October 1930 from a cosharer for the profits on account of 1337-F. due from the lambardar. The first suit was brought by the plaintiff for collections on account of 1337-F. made in 1337-F. and that suit was decreed. The second suit brought by the plaintiff was for collections on account of 1337-F. made in 1338-F. and that suit was also decreed. The third suit is now brought for collections on account of 1337-F. made in the year 1339 and 1340-F. The Assistant Collector decreed the suit and there was no dispute on the ground that is now being raised. In the lower Appellate Court, however, the ground was raised that the sale deed did not justify the present suit the argument has found favour with the learned District Judge that the words 'profits on account of the year 1337-F.' meant a share of the net collections in the year 1337-F. on account of that year and of the arrears of previous years. He has held that the words do not include the collections on account of 1337-F. due in that year but actually collected in subsequent years. There is no authority for this proposition of the lower Court. The Full Bench ruling to which reference has been made, Sheo Ghulam v. Salik Ram (1924) 11 A.I.R. All. 481 deals with the definition of divisible profits of an agricultural year. This is not at all the same expression as 'profits on account of a year.' We are clearly of opinion that the expression 'profits on account of a year' means the profits which arise out of the rental demand for that particular year irrespective of the year in which the collections are made. We consider that this expression cannot include arrears previous to the year with reference to which the profits are stated to arise. Some further argument was made that the document did not contain the expression 'profits on account of the year 1337-F,' which the learned District Judge has taken to be in the document. The document begins by explaining that 'munafa babat 1337-F yaftani ham muqran' were due from the lambardar, and later on the expression used is that what is sold is 'munafa 1337-F ka.' Clearly what is meant is the profits as defined in the preamble are what was the subject of the sale. The translation there, fore given by the learned District Judge is correct that what was sold was profits on account of the year 1337-F. The usual meaning of 'profits on account of a year' in receipt and in the jamabandi is profits which arise from the rental demand of that year. The meaning attributed by the District Judge to this expression is not one which is in use in Revenue Courts or in rent Courts. No authority has been shown for the meaning used by the learned District Judge.

2. Another point is that if the defendant desired to raise this question he should have raised it in the second suit brought by the plaintiff for the arrears collected in 1338-F. As the point was not raised by the defendant in that suit and as it could have been raised the question cannot now be raised because it is res judicata against the defendant. But in any case we consider that the clear meaning of the words is in favour of the plaintiff. Accordingly we allow this second appeal and we restore the decree of the trial Court in favour of the plaintiff with costs throughout.


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