(1.) Parties to the suit giving rise to this appeal are cosharers in mahal, Dwarka Prasad, village Sumerpur, pargana Akberpore District, Cawnpore. The plaintiffs sued the defendant who is the lambardar of the mahal for recovery of Rs. 225 odd, being principal (Rs. 192) and interest (Rs. 33 odd), as their share of profits for the years 1328 to 1331 Fasli. The claim for 1331 Fasli was subsequently dropped as it was discovered to be premature. The Court of first instance decreed the plaintiffs claim for Rs. 98-2-0 for the years 1328 to 1330 Fasli carrying interest as claimed. This amount was found to be the plaintiffs share or profits calculated on gross rental.
(2.) The main pleas in defence which were urged before this Court are (1) that the rental of the plots 103 and 106 with an aggregate area of 6 bighas 5 biswas should be set apart as exclusively belonging to the defendant under a deed of relinquishment, dated 8 November 1888, executed by the predecessors-in- interests of the plaintiffs and (2) that the profits should be calculated on the basis of actual collections. The Court of first instance overruled both of these pleas but on appeal by the defendant the learned District Judge gave effect to the second reducing the amount decreed to Rs. 36-10-0.
(3.) The defendant has appealed to this Court as regards the first of the pleas and the plaintiffs have filed cross-objections in respect of the second. The deed of relinquishment, dated 8 November 1888, evidences, in my opinion no more than an arrangement entered into by cosharers adjusting their claims against each other regarding the enjoyment of common lands in proportion to their shares. The deed was executed by Bikram and others who, it is admitted are now represented by the plaintiff-respondents in favour of Hemanchal and Lachhman, predecessor- in-interests of the defendant-appellant. It recites that the common sir land amounting to 45 bighas 14 biswas was recorded in the names of Hemanchal and Lachhman out of which three plots... 105, 111 and 112 were held rent-free by the mother of the executants in lieu of her maintenance. To compensate Hemanchal and Lachhman, plots 103 and 106 were set apart for them rent free. It does not appear that the plots in lieu of which the two plots in question were thus allotted to defendant's predecessors-in-title continue to be held by the lady referred to in the deed; it is very likely that they ceased to be so held long ago and thereafter they became part of common lands, in which case the arrangement embodied in the deed of relinguishment would automatically fall through. It is not suggested by the defendant-appellant that plots 105, 111 and 112 are now held in severalty by the plaintiffs so as to entitle the defendant to hold plots 108, 106 as his, exclusive holding in lieu thereof. The Court of first instance has referred to a number of circumstances on which it based the conclusion that the document was not "acted upon." The learned District Judge thinks in view of those circumstances that if it was acted upon, it must at some time have fallen into abeyance.