1. This is a second appeal by the plaintiff whose suit for arreas of profits against another co-sharer under Section 165, Agra Tenancy Act (2 of 1901), has been dismissed by an Assistant Collector and also his appeal has been dismissed by the District Judge. The facts set forth in the order of the District Judge are simple. The plaintiff owns a large share in a certain khata khewat number and the defendant owns a very small share. The defendant is in possession of a large portion of the land in that khata khewat number. There was a partition which took effect from the year Fasli 1319 (1911-12) in which the defendants was entered as exproprietary tenant of this land. The learned Counsel for the defendant-respondent argues that on the principle of the Full Bench ruling in Gokaran Singh v. Ganga Singh A.I.R. 1920 All. 229, the plaintiff cannot make a claim that this land is not defendant's exproprietary tenancy but is his sir. The ruling quoted deals with the converse case where a certain co-sharer could not claim that the land was his occupancy tenancy. Whatever way the parties had been entered at partition there was a later proceeding between them in 1921, in the course of an application by the plaintiff under Section 36, Land Revenue Act, for fixing a higher rent on the defendant than the rent entered. In that proceeding it was held by the Assistant Collector that the land in question was not exproprietary tenancy of the defendant at all but his sir. In spite of this decision the entry apparently remained in the khatauni that the land was exproprietary tenancy of the defendant. Now the matter for decision whether the land is sir, is a matter peculiarly within the jurisdiction of the Revenue Court according to Section 44, Land Revenue Act. That section in its final clause states:
But no such entry or decision by the Revenue Court shall affect the right of any person to claim and establish in the civil Court any interest in land which requires to be recorded in the registers prescribed by Clauses (a) to (d).
2. It is to be noted that this provision is not made in regard to CI. (e), Section 32, Clause (e); refers to a register of all persons cultivating or otherwise occupying land. This register is called the khatauni and it is in this register that the entry is made for sir and also for exproprietary tenancy. The Revenue Court had jurisdiction to decide the point and the decision has not been set aside. Now in the present suit when the plaintiff sued for arrears of profits, the defendant in para, 2 pleaded that the land in question was exclusively owned by him but did not plead that he held it as his exproprietary tenancy. The defendant was required to file a suit in the civil Court for the rights he claimed and he filed a suit and it came before this Court in second appeal and this Court decided that he had not got those rights as he was a co-sharer. The question as to whether the land was sir land or exproprietary tenancy of the defendant was not before this Court. In view of these two considerations, firstly that there is a finding of the Revenue Court between the parties that the land is sir of the defendant and not his exproprietary tenancy, and secondly in view of the fact that the defendant did not plead in the present suit that he held the land as exproprietary tenancy, I consider that the finding of the lower appellate Court that the plaintiff had failed to prove that it was sir of the defendant is not a finding justified in law. Accordingly, I allow this second appeal and I hold that the plaintiff has proved that the land in question is sir of the defendant. I therefore remand the case to the lower appellate Court for decision according to law. I set aside the decrees of the Courts below. Costs hitherto incurred will be costs in the case.
3. Permission is given for Letters Patent Appeal.