MITTHU LAL Vs. MTCHAMELI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for profits which was filed by the plaintiffs under Section 226, Agra Tenancy Act, in respect of the years 1332 and 1334 Fasli. The plaintiffs were Hub Lal and his son, Ram Rachpal. The former has since died. One Daryao Singh died leaving two widows, Mt. Surja and Mt. Jumna, and on his death his 10 biswas share in the village devolved upon the said widows. On 9 September 1921, the widows jointly executed a usufructuary mortgage of 5 biswas in favour of Hub La.l Mt. Jumna had a daughter by name Mt. Brindaban, who was married to Hub Lal, and plaintiff No. 2 namely, Ram Rachnal, as their son. On 9 January 1922, Mt. Jumna executed a deed of gift in respect, of 5 biswas (2 1/2 biswas being proprietary rights and 2 1/2 being mortgagee rights) to Mt. Brindaban and Ram Rachpal. It is not disputed that the rights of Mt. Brindaban have now devolved upon Ram Rachpal. Mt. Jumna died, about four years before the institution of this suit.

(2.) The plaintiffs case was that Hub Lal was a cosharer of 5 biswas as mortgagee in possession in the years, in suit and that Ram Rachpal w.as a cosharer of 2 biswas, 10 -biswansis-in 1332 and 1333 Fasli and of 2 biswas and 7 1/2 biswansis in 1334 Fasli.

(3.) The Court of first instance decreed the suit of the plaintiffs for Rs. 1,070-0-9. The lower appellate Court has allowed the appeal in respect of Rs. 40, but in other respects, has confirmed the decree of the trial Court. The first plea which is taken before us is that the defendant-appellant is a thekadar and not a cosharer, and that a thekadar cannot legally he appointed lambardar. Under Section 4, Land Revenue Act. a lambardar is defined as: a co-sharer of a mahal appointed under this Act to represent all or any of the co-sharers in-the mahal.