GIRDHARI LAL Vs. GOBIND RAI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for profits under Section 164, old Agra Tenancy Act, against a lambardar. The plaintiff's name is recorded as proprietor of a specific area of land with a specific share of the profits. The defendant is admittedly a lambardar of the village. The parties are brothers. The Courts below have dismissed the suit on a finding that the family is joint, and that a member of a joint Hindu family has no right to claim profits from the karta of the family.

(2.) In our opinion, it was not open to the Courts below to go into the question of the jointness or the separation of the parties. The plaintiff repudiated the suggestion that he was a member of a joint Hindu family. His name was recorded as a proprietor in the revenue papers for the years for which the profits were claimed. Under Section 201, Sub-clause (3), if the plaintiff is recorded as having the proprietary right entitling him to institute a suit under the provisions of. Chap.11, the Court shall presume that he has this right. The defendant's plea that the plaintiff has no such right because the family was joint, should not have been allowed to prevail.

(3.) It was held by a Full Bench of this Court in the case of Durga Prasad V/s. Hazari Singh [1911] 33 All. 799, that the words "shall presume" in the section mean irrebuttable and conclusive presumption. The learned vakil for the respondent relies on an unreported case decided by Sundar Lal, J., namely, Dharam Singh v. Ratti S.A. No. 443 of 1913, decided on 1 March 1917. That case no doubt helps him. We are of opinion that the learned Judge's view that the presumption merely meant that the recorded co-sharer had a proprietary right and did not mean that he had a right to institute a suit for profits, was not correct. Reading Sub-clause (1) with Sub-clause (3), it is obvious that the presumption relates to the existence of the proprietary right entitling the recorded co-sharer to institute a suit for profits under Chap. 11 of the Act. The view of the single Judge is contrary to that subsequently expressed by a Bench of this Court in the case of Sheo Narain v. Bala Rao A.I.R. 1922 All. 332 where it was held that the I.L.Rpresumption was nonetheless applicable because the parties to the suit may be members of a joint Hindu family. As remarked above, we think that the question of jointness should not at all have been gone into.