GANESHI LAL Vs. SHANKAR LAL

JUDGEMENT

(1.) This is a defendant's second appeal and arises from a suit for profits, under Section 226, Agra Tenancy Act. The parties are mortgagees in possession under a deed of 30 July 1923, executed by Fateh Singh and others. Both the lower Courts have decreed the plaintiffs claim. In second appeal before us it was contended that the suit is not one cognizable by a Revenue Court, as the parties, who are admittedly usufructuary mortgagees are not co-sharers within the meaning of Section 226, Agra Tenancy Act.

(2.) It appears that the parties to this suit had obtained a decree for Rupees 40,000 against the mortgagors Fateh Singh and others. The latter executed the mortgage-deed already referred to for Rs. 16,000 part of the decretal amount in respect of village Sowara, for which the profits are claimed. The deed expressly states that the plaintiffs are to be regarded as mortgagees in possession to the extent of half and the defendants are to be regarded as mortgagees in possession to the extent of the other half. There is an obscure clause in the deed which presented some difficulty to the mind of the learned District Judge but we do not think it to be desirable to interpret that clause, as our decision one way, or the other may prejudice the case of the plaintiffs or the defendants which may hereafter arise in relation to their claims as decree-holders nor is it necessary to interpret that clause for the purposes of this appeal.

(3.) The plaintiffs are recorded as co-sharers of half of the mahal and the defendants are recorded as co-sharers of the other half. One of the defendants is admittedly a lambardar and has made collections. If a usufructuary, mortgagee is a "co-sharer" within the meaning of Section 226 Agra Tenancy Act, there can be no doubt that a suit for; profits by either of them against the; other is maintainable in the Revenue Court; and if such a suit as maintainable, the plaintiffs are entitled to recover profits to the extent of half in terms of the mortgage deed to which, both the defendants and the mortgagors were parties.