Mohammad Mustafa Husain Khan vs Sri Ram and Others

This is a second appeal The plaintiffs were the purchasers of the equity of redemption in respect of certain usufructuary mortgage, and the right was pre-empted in 1918. Certain mortgagees had to pay a certain sum of money annually to the mortgagor under a mortgage prior to the purchase by the plaintiff. The plaintiffs brought the present suit for recovery of this amount from the date of the purchase to the date of their dispossession by the pre-emptor. We are of opinion that the plaintiffs have no right to recover any sum by way of profits out of the property for the time between their purchase and the pre-emption. The lower appellate Court has not, expressed itself quite clearly but this is what it means when it says "Pre-emption" after all is only a substitution of one vendee for another. The definition of the "right of pre-emption" given in the Agra Preemption Act, 1922, conveys the meaning attached to such a right even prior to the passing of the Act. The definition says:

Right of pre-emption" means the right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right: [(Section 4(9), Act 11 (local) of 1922).]

When the pre-emptor was substituted in place of the plaintiffs his right would date back to the date of the sale in favour of the plaintiffs and the plaintiffs were not entitled to recover profits of the property from the time they had been put in possession until the pre-emptor was substituted in their place.

We dismiss this appeal under Order 41, Rule 11, Civil P.C.