LALA RAM DAS Vs. NAWAB ATA HUSAIN

JUDGEMENT

(1.) This is a second appeal in a suit for profits under Section 226, Agra Tenancy Act, by one of the cosharers against the lambardar. The plaintiff has in his possession plots of land having a total area of 12 1/4 bighas for the purpose of brick kiln, and a point was taken by the defendant lambardar that he was entitled to what he called deduction in respect of this land, that is, as if the land had been occupied by the plaintiff as khudkasht or as if the income which was thus obtained from the land was income which could be treated as sayar and taken into account in the annual settlement of accounts between the cosharers. This point does not seem to have been contrasted seriously in the trial Court but in the lower appellate Court it was raised and the learned District Judge of Cawnpore held that income of the nature under consideration was more akin to income derived from the matters set out in Sub-section (4) of Section 3, Agra Tenancy Act, 3 of 1926, i.e., sayar income than to income derived from land occupied by dwelling houses or factories. He accordingly allowed the estimated income based on a rental of Rs. 15 a bigha to be taken into account in the accounting for the years in suit.

(2.) In this appeal it is contended strenuously on behalf of the plaintiffs-appellants that the income of the land treated as brick kiln in this manner is not income from land nor is it akin to sayar, and therefore it is not liable to be taken into account in the settlement under Section 226, Agra Tenancy Act. The learned District Judge has really not given any reasons for his statement that he thought the kind of income under discussion to be more akin to sayar income than to income derived from land occupied by dwelling-houses or factories. Sub-section (2) of Section 3, Tenancy Act, provides that: Land means land which is let or held for agricultural purposes, or as grove-land or for pasturage.

(3.) It includes land covered by water used for the purpose of growing singhara or other similar produce, but does not include land for the time being occupied by dwelling-houses or manufactories, or appurtenant thereto.