JUDGMENT
Iqbal Ahmad, J.
1. This is a plaintiff’s appeal and arises out of a suit for profits filed in the Revenue Court under Section 227, Agra Tenancy Act (Act 3 of 1926). The claim was with respect to 1337 Fasli and the total amount claimed by the plaintiff was a sum of Rs. 570. There were a number of defendants in the suit, but only two of the defendants, viz. Man Singh and Darya Singh minor, contested the plaintiff’s claim. A joint written statement was filed by these defendants. They denied that they made collection of rent from the tenants in the year in question and asserted that the plaintiff himself realized his share of the rent from the tenants. These defendants therefore maintained that the plaintiff was not entitled to a decree for any amount. The only issue framed in the case by the trial Court was, what amount of profits, if any, is the plaintiff entitled to get and from whom? The trial Court held that the plaintiff was entitled to a decree for Rs. 310-13-9 only against Man Singh and to a decree for annas 15 against Lala, defendant. I am not concerned with Lala, defendant in the present appeal. In arriving at this decision, the trial Court took note of a decision of this Court in Chatter Sen v. Mitter Sen (1933) 18 R.D. 12 155 I.C. 653, as also of a decision of the District Judge of Meerut in a suit for profits between the plaintiff and Man Singh with respect to a previous year. This Court in the reported decision mentioned above held that a collecting co-sharer is liable to the extent of what he has collected in excess of his own legitimate share and out of the share of the co-sharer suing for his share of the profits. In the case relating to the profits of a previous year that was decided by the District Judge the learned Judge held that:
Every tenant is a tenant of all the co-sharers. Every co-sharer has a right to collect from every tenant according to his share of the zamindari and therefore if a particular co-sharer realized the whole rent from a particular tenant, he realizes the share of other co-sharers also and must account for it.
2. The trial Court considered that this decision of the District Judge operated as res judicata between the parties and therefore the accounts must be settled on the basis of the decision of the District Judge. The trial Court framed the accounts accordingly and passed a decree for Rupees 310-13-9 in favour of the plaintiff against Man Singh. Both Man Singh and Darya Singh appealed to the District Judge and the learned Judge disposed of the case by an extremely unsatisfactory judgment. He observed that Man Singh was the guardian of Darya Singh minor and the collections made by Man Singh should be deemed to have been made by him not only on account of his share of the profits but also on account of the share of Darya Singh. He accordingly held that the collections made by Man Singh should be credited not only towards Man Singh’s share of the profits but also towards the share of the profits of Darya Singh and that the excess, if any, should be available for distribution amongst the other co-sharers. In this connexion he observed that Man Singh was entitled to deduct from the realizations made by him his share and “Darya Singh’s full share in the jamabandi for the season.”
3. I am unable to agree with the lower Appellate Court. Every co-sharer in a joint mahal is entitled to realize from each tenant his share of the rent and no more. In the absence of an agreement to the contrary, no co-sharer has the right to select particular tenants and to realize from those tenants his entire share of the profits of the mahal and leave the rent payable by the other tenants to be realized by the other co-sharers. If a co-sharer realizes from a particular tenant rent in excess of his share he is liable, in a suit under Section 227, Tenancy Act, to pay to the other co-sharers the amount realized by him in excess of his share in the rent payable by the tenant. Further no co-sharer is entitled to appropriate the excess rent realized from particular tenants towards his full share of the profits according to the jamabandi. In a suit for settlement of accounts under Section 227, Tenancy Act, all that the collecting co-sharer is entitled to is to deduct from the realizations made by him from particular tenants his share of the rent payable by those tenants and the excess realizations, if any, made by him from those particular tenants must go towards the satisfaction of the claim of such co-sharers who may not have realized their legitimate share of the rent from those tenants. It follows from the observations made above that the method adopted by the learned District Judge to decide the dispute between the parties was erroneous and the principle applied to the decision of the case by the trial Court was correct.
4. The question whether Man Singh was entitled to deduct from the collections made by him only the amount payable to him by the tenants on account of his share of the rent or also on account of the share of the Darya Singh does not appear to have been debated or discussed in the trial Court. The question appears to have been raised for the first time in appeal before the learned District Judge. If it be a fact that in the year 1337 Pasli Man Singh was the guardian of Darya Singh no exception can be taken to the decision of the learned District Judge directing thafi the collections made by Man Singh be credited both towards the accounts of Man Singh and Darya Singh. But no finding has been recorded by the learned District Judge on the question whether or not Man Singh was the guardian of Darya Singh in the year 1337 Fasli. This matter will have to be enquired into and decided by the lower Appellate Court. The decree passed by the lower Appellate Court is most indefinite in its terms. The amount found due to the plaintiff has not been ascertained by the learned District Judge. In a suit for profits it is desirable that the amount to which a plaintiff is entitled be fixed and declared by the decree.
5. Having regard to the unsatisfactory nature of the decision of the lower Appellate Court, the only course open to me is to set aside the decision of that Court and to send the case back to that Court with directions to restore the appeal filed by Man Singh and Darya Singh to its original number and to dispose of the same according to law and I order accordingly. On remand the lower Appellate Court will decide the question whether or not Man Singh was the guardian of Darya Singh in the year, 1337. If this question is answered in the affirmative by the lower Appellate Court the collections made by Man Singh in the year in suit will be set off against the share of rent due both to Man Singh and Darya Singh from each particular tenant and the amount, if any, in excess of their share that may have been realized from those tenants will be payable to the other co-sharers of the mahal. If the lower Appellate Court finds that Man Singh was not the guardian of Darya Singh in the year in suit credit will be given to Man Singh only with respect to his share of the rent payable by each tenant. In the settlement of accounts Man Singh will not be entitled to utilize the amounts realized by him from particular tenants in excess of his share of the rent in satisfaction of his “full share in the jamabandi for the year in suit.” If the plaintiff is found entitled to a decree he will be awarded pendente lite and future interest at the usual rate. Costs here and hitherto will be costs in the cause and will abide the result. Leave to appeal under the Letters Patent is granted.
