GOPAL SAHAI Vs. NASIR UDDIN

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose suit was dismissed by the lower appellate Court. The plaintiff brought a suit under Section 227, Agra Tenancy Act, for his share of profits against the defendant 2, Nasiruddin, as a cosharer in possession under a usufructuary mortgage. The Revenue Court granted a decree to the plaintiff for a certain amount of mesne profits. The facts apparent from the pleadings, which are admitted by learned Counsel in this Court for the parties to be correct, are that the khewat number in question consisted of 7 biswanis 8 tanwansis and was held originally by defendant 1, Chhidda Khan, and Chhidda Khan was in cultivating possession of the total area 36 biswas odd in this khewat number 24/6. Clidda Khan executed a usufructuary mortgage of 2 biswansis 8 tanwansis share in favour of defendant 2, Nasiruddin, and he executed a qabuliat agreeing to pay rent to defendant 2 of Rs. 95-2-9 per annum for a portion of the cultivated land in this khewat number. Subsequently the plaintiff purchased the equity of redemption of Chhidda Khan but he has not redeemed the usufructuary mortgage. Plaintiff also purchased the remaining ;5 biswansis share in the khewat number which is not encumbered by mortgage and plaintiff got the Revenue Court to assess exproprietary rent on ;the remaining portion of the cultivated area in possession of Chhidda Khan I which was fixed at Rs. 40. This Rs. 40 exproprietary rent was rent payable to all the cosharcrs in the khewat number because an exproprietary tenant is the exproprietary tenant of all the cosharers. Similarly in regard to Rupees 95-2-9 rent under the qabuliat between; Chhidda Khan and Nasiruddin this must be taken to be exproprietary rent and to be due to all the cosharers. The plaint in para. 3 sot out that the total rental of the khewat in question was Rs. 135-2-0 and learned Counsel points out that that sum is composed of the two items Rupees 95-2-9, due under the qabuliat from Chhidda Khan, and Rs. 40 due from Chhidda Khan as the exproprietary rent fixed by the Court. These facts were admitted in para. 2 of the written statement and are not in dispute.

(2.) Now the plaintiff brought a suit in the Revenue Court in his capacity of a cosharer in possession of a 5 biswansis share in this khewat number. He had no right to sue in regard to the 2 biswansis 8 tanwansis because he only held the equity of redemption in that share and defendant 2 was in possession of that share as a usufructuary mortgagee. But unfortunately this position was not appreciated by the two lower Courts and the issue framed was "Is the plaintiff- mortgagor and defendant a mortgagee and hence no profit is due from him?" The trial Court although it framed this issue, actually decided the suit on correct lines by taking the evidence of the patwari as to the total amount of the collections in the mahal which it held to be the payment of it he rent under the qabuliat Rs. 95- 2-9, and it held that the plaintiff had not realised any of the Rs. 40 exproprietary rent. The net as sets therefore after deduction of land revenue coming to Rs. 247- 9-6, the Court gave the plaintiff a two-third share, Rs. 165-1-0 with proportionate interest and costs. Defendant 2, Nasiruddin, brought an appeal before the lower appellate Court alleging in ground No. 3 that the trial Court had erred in holding that, the plaintiff was entitled to claim 2/3 share of the rent received by the appellant, from Chhidda Khan, defendant 1. The lower appellate Court has considered the matter solely from the point of view of the mortgage and it held: Until the mortgage is redeemed by the plaintiff-respondent the appellant Nasiruddin is entitled to this sum (Rs. 95-2 9) by way of interest on his mortgago money and the plaintiff-respondent cannot get any share in it.

(3.) Now the question is whether such a finding is legally correct in a suit for, profits. The position of Nasiruddin in a suit for profits under Section 227, Agra Tenancy Act, is that he is entitled to collect a share of the assets of the mahal proportionate to a share in the mahal. The share which he has in hi? usufructuary possession is a share of 2 biswansis 8 tanwansis. The mere fact that Chhidda Khan, an exproprietary tenant, has executed a qabuliat in favour of Nasiruddin to pay Rs. 95 odd rent per annum entitles Nasiruddin to collect that rent, but it does not entitled him to retain the whole of that rent against another cosharer. The position will be more easily seen if we assume that Chhidda Khan had put the whole of the land in the mahal in its khewat, and agreed to pay the whole rent to Nasiruddin. On the theory of the lower appellate Court in such a case the plaintiff would have been entitled to nothing although he was the owner of a 5 biswansis share in the khewat number, a share which was unencumbered by any usufructuary mortgage. This shows that the theory of the lower appellate Court is unsound. A further point apparently influenced the lower appellate Court and that was that the plaintiff had not collected any of the Rs. 40 which had been assessed as rent payable by Chhidda Khan, and the lower appellate Court goes on to say that this rent was payable to the plaintiff. In this the lower appellate Court has fallen into a legal error because on the creation of an exproprietary tenancy the exproprietary tenant is the tenant of the coparcenary body and not the tenant of any particular coparcenary. There is no reason in law for the conclusions arrived at by the lower appellate Court. It is clear that the assets as found by the trial Court correctly represent the collections of rent in this mahal during the years in suit and no ground has been shown in this Court that there is anything incorrect in the findings of fact of the trial Court. Nor does it appear necessary to remand any further issue on a question of fact. Under these circumstances I set aside the decree of the lower appellate Court and I restore the decree of the trial Court, and I allow the plaintiff costs throughout. No case has been made out for a Letters Patent appeal.