MAHMUD HUSAIN Vs. ENAYET HUSAIN

JUDGEMENT

(1.) THE facts of this case though somewhat complicated may be shortly stated for the purpose of the present appeal. THE plaintiff brought a suit against Ewaz Husain and the brothers and nephews of Ewaz Husain. His claim was really against Ewaz Husain but these other persons were joined as pro forma defendants. He obtained a decree against Ewaz Husain. In execution of this decree he sought to attach profits, which he said were due by the other defendants to Ewaz Husain, for the years previous to the execution. THE brothers and nephews objected to this attachment. THE matter was fought out between them and the plaintiff s claim was upheld. THE result was that the profits due to Ewaz Husain for these years were put up to sale and purchased by the plaintiff (the decree-holder). No particular amount was ascertained. THE plaintiff then brought the present suit. He claimed the profits at Rs. 20 per bigha. THE Court of first instance allowed him Rs. 16 per bigha. Before the lower Appellate Court it was contended that nothing whatever could be due to Ewaz because the property had been managed and cultivated by the defendants in the absence of Ewaz Husain. This contention found favour with the lower Appellate Court who dismissed the plaintiff s suit. We think that the view is not correct. Whatever objection there might originally have been to the attachment of an unascertained sum as being due by the defendants to Ewaz Husain we have not now to consider. This question was fought out and decided in favour of the plaintiff. THE result is that in our opinion the plaintiff has now any rights which Ewaz Husain would have had against the defendants. THEse persons held the property as tenants-in-common, each having in law a right to a specific share in the profits. If the property was in the hands of sub-tenants, in our opinion there can be no doubt that Ewaz Husain would have been entitled to a share of the rents realised from the tenants in his absence in proportion to his share in the property. If instead of being let to sub-tenants the property was cultivated by the defendants in the absence of Ewaz Husain, Ewaz Husain would have been entitled to his share of those profits after crediting to the defendants a reasonable sum for the extra labour which had been expended by them by reason of the absence of Ewaz Husain. Under these circumstances we think that the case should be remanded for decision upon its merits. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and remand the case to that Court under Order XLI, Rule 23 of the Code of Civil Procedure, with directions to re-admit the appeal upon its original number on the file and proceed to hear and determine the same according to law. Costs here and heretofore will be costs in the cause. Costs in this Court will include fees on the higher scale.