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Ashfaq Ali Khan Vs. Inayat Beg - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All704; 155Ind.Cas.1103
AppellantAshfaq Ali Khan
Respondentinayat Beg
Cases ReferredLallu Singh v. Chander Sen
Excerpt:
- allsop, j.1. this is a second appeal arising out of a suit for profits by an assignee from the cosharer. the suit was decreed by the trial court but was dismissed by the lower appellate court. the only point argued in the lower appellate court was that the plaintiff was not entitled to institute a suit until he had made a report under section 34, land revenue act, asking for mutation of the register. other grounds of appeal were mentioned in the memorandum to the court below but they were not argued. this may have been due to the fact that the court below made it clear that it was with the appellant on, the point on which the appellant succeeded.2. the first question is whether the learned district judge was right in holding that the plaintiff had no right to sue until he had made the.....
Judgment:

Allsop, J.

1. This is a second appeal arising out of a suit for profits by an assignee from the cosharer. The suit was decreed by the trial Court but was dismissed by the lower appellate Court. The only point argued in the lower appellate Court was that the plaintiff was not entitled to institute a suit until he had made a report under Section 34, Land Revenue Act, asking for mutation of the register. Other grounds of appeal were mentioned in the memorandum to the Court below but they were not argued. This may have been due to the fact that the Court below made it clear that it was with the appellant on, the point on which the appellant succeeded.

2. The first question is whether the learned District Judge was right in holding that the plaintiff had no right to sue until he had made the report required under Section 34. I have no doubt that the learned Judge was not right. The suit was in respect of the profits for the years 1333 to 1335 Fasli. These profits were transferred to the plaintiff after they had accrued. It is quite obvious that the plaintiff could make no report under Section 34, Land Revenue Act. He had obtained no right either in the mahal or in any share of it or in the profits of it in respect of the year in which the transfer was made or in respect of any subsequent year. There was no right subsisting in him which could be entered in the register. The fallacy in the argument addressed to the Court below arises out of a misunderstanding of the meaning of the word 'profits' as used in Section 34. What was transferred in this case was not a right to the profits in a mahal at any time after the transfer but it was a transfer of a sum of money or a debt or any actionable claim which had already accrued to the transferor. There, could certainly be no entry in any register of proprietors in respect of this amount and consequently no report could be required and the right to sue could not be baaed on the making of any such report.

3. The only question which might possibly have arisen was whether an assignee of the right to recover, in a Court of Law, profits which had already accrued to the assignor was entitled to bring a suit in the Revenue Court. This question has been set at rest by the decision in Lallu Singh v. Chander Sen 1934 All. 155, where it was held that a suit in these circumstances was one which would lie in the Revenue Court.

4. The appeal must succeed. It has been urged that the respondent might have argued other points in the Court below on the basis of the memorandum in that Court if he had not succeeded on the preliminary point. There is force in this argument. The case must be remanded. I allow the appeal and set aside the decree of the lower appellate Court. That Court will dispose of the appeal upon its merits. The costs in this Court will abide the result. This amounts to a remand under Order 41, Rule 23.


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