1. This is a defendant's second appeal arising out of a suit for profits under Section 226, Agra Tenancy Act. The suit was instituted by two persons, Ram Manohar and Bhagwat Prasad. Ram Manohar is a cosharer and Bhagwat Prasad was his thekadar, the theka being for the years in suit, namely 1339, 1340 and 1341 Fasli. The trial Court decreed the suit of the plaintiffs; and an appeal by the defendant has been dismissed by the learned District Judge. The first plea which is taken before me is that the suit of the thekadar is barred by limitation and that the cosharer-lessor has no right of suit. The learned Judge of the lower Appellate Court was of opinion that plaintiff 1, namely the cosharer, had a right of suit, but that plaintiff 2, who is the thekadar, had no right of suit. The relevant Sections of the Agra Tenancy Act are Sections 199, 201 and 202. Section 199 of the Act defines a thekadar as a farmer or other lessee of proprietary rights in land, and in particular of the right to receive rents or profits. Section 201(1) provides that a thekadar may during the period and to the extent of his theka exercise all the rights of his lessor under the Act, except certain rights which it proceeds to specify. Sub-section 3 of Section 201 provides:
Rights which may be exercised by a thekadar under the foregoing Sub-section shall not be exercised by hi a lessor during the period of the theka, unless the terms of the theka otherwise direct.
2. Section 202 enacts as follows:
Except as otherwise provided by the terms of the theka, the lessor shall be, and the thekadar shall not be, entitled to recover arrears of rent and other duos in respect of the theka area which accrued prior to the commencement of the theka, if legal proceedings for their recovery are instituted within one year of the commencement of the theka; and a thekadar shall not be entitled to recover any such arrears remaining due at the expiry of his theka or at the time of his ejectment or surrender of the theka, whichever event first occurs, unless legal proceedings for the recovery of such arrears are commenced within one year of the expiry of the theka or of the thekadar's ejectment or surrender of the theka.
3. Learned Counsel for the plaintiffs-respondent at first conceded that the expression 'other dues' in the first part of Section 202 includes profits, but on the second day of hearing he pleaded that this is not so. He has not been able to show why profits should not be regarded as dues, and in my opinion they must be so regarded. If a lambardar owes to a cosharer the latter's share of profits, these are certainly due to the cosharer, and it is somewhat difficult to see why the phrase other dues' should not include arrears of profits which have become due. This point was not very seriously argued; but learned Counsel went on to contend that in the second portion of Section 202 (with which we are concerned in this appeal) there is no mention of 'other dues' at all, and therefore he argues that this portion of the Section does not relate to arrears of profits. I do not think there is any force in this plea. In the first portion of the Section the words are 'entitled to recover arrears of rent and other dues,' and in the second portion the words are 'entitled to recover any such arrears.' A 'due' is of necessity an arrear inasmuch as, when once a periodical payment by one person to another falls due, it immediately becomes an arrear. Therefore the expression arrears of rent and other dues' means arrears of rent and other arrears' and includes arrears of profits. The expression 'other dues' is somewhat vague and is perhaps not very happy, but I do not see how, having regard in particular to Section 199(1) of the Act, it can be held to exclude arrears of profits which have fallen due and have therefore become 'dues.' The thekanama is not on the record, but I am informed by counsel for beth parties that its terms were simply to the effect that in consideration for the rent payable by the thekadar to the lessor the former was entitled to realise rents and profits of the lessor's share for the years in suit. Dr. Agarwala at p. 602 of his Agra Tenancy Act, Edn. 13, says:
The first thing to consider is the theka or lease and see what provisions it contains about arrears of rent (a) due at the date of the commencement of the theka, which prima facie belong to the lessor, and (b) these due at the termination of the theka, which prima facie belong to the thekadar. Such provisions will regulate the rights of the parties as regards the arrears. In the absence of any such provisions, the thekadar will be entitled to recover, (a) unless the lessor has, before the commencement of the theka or within one year of such commencement, instituted legal proceedings for their recovery; and the lessor will be entitled to recover, (b) unless the thekadar has, before the termination of his theka or within one year of such termination, taken legal proceedings to recover them.
4. This opinion of the learned author sup. ports the case for the lessor-respondent; but counsel for the defendant-appellant pleads that it is not a correct view. His argument may be summarised as follows: The first part of Section 202 says that 'the lessor shall be and the thekadar shall not be entitled' to recover arrears which accrued prior to the theka, if a suit is instituted within one year from the commencement of the theka, and the second part says that a thekadar shall not be entitled to recover arrears, unless he sues within a year of the expiry of the theka, but it does not say that the lessor shall be entitled to recover such arrears if he institutes a suit beyond one year from the termination of the theka and within three years from the date when the arrears fell due. For arrears which accrued before the theka, a period of one year and no more from the commencement of the theka is allowed to the lessor and for arrears outstanding on the expiry of the theka a period of one year and no more is allowed to the thekadar from the date of such expiry. Under the theka in suit the lessor admittedly conveyed to the thekadar for consideration his right to profits for the period of the theka and it cannot therefore be that on the expiry of the theka the losaor became re-entitled to a right which ho had convoyed for value to his thekadar. The mere termination of the theka cannot operate to re-invest the lessor with a right of which he had divested himself for consideration.
5. As regards arrears of profits which accrued before the commencement of the theka, it is argued that, if a suit is not brought by a lessor within one year from the commencement of the theka, there will be a bar of limitation for the realization of such arrears under the first part of Section 202, inasmuch as the Legislature can hardly have Intended that, if the lessor did not sue within one year of the commencement of the theka, the thekadar will be competent to sue for arrears of profits which had accrued before the beginning of the period to which his theka relates. It follows that if under the second part of the Section the thekadar does not sue within one year from the termination of the theka for arrears which have accrued during the period of the theka, such arrears will become unrealizable. It is argued that if a contrary view were held an anomalous situation might arise, as follows : Suppose the lessor for some reason or other does not institute a suit within, one year from the commencement of the theka and thereafter the thekadar institutes a suit and obtains a decree for profits which had accrued prior to the theka, and suppose the thekadar again institutes a suit within one year from the termination of the theka and obtains a decree for profits which have accrued during the theka, the result will be that the thekadar has realized the profits of the lessor's share not only for the year to which his theka relates and to which he is undoubtedly entitled, but has also realized profits for a period anterior to the theka to which his lessor, and not he, is entitled. And the converse anomaly, says counsel, might equally arise.
6. This is the argument of learned Counsel for the defendant-appellant, as I understand it; but I do not think it can prevail. The statutory period of limitation for a suit under Section 226, Tenancy Act, is three years, and in my opinion all that the Legislature meant in enacting Section 202 of the Act, was that after the termination of the theka a suit by the cosharer should be held up for one year, during which period the thekadar has the right of suit; but, if he does not exercise such right within the period of one year, the cosharer-lessor is entitled to sue for arrears which have accrued during the theka years, provided he institutes his suit within the statutory period of three years. And the converse would presumably hold good in respect to arrears which had accrued prior to the theka. I do not think the statutory period of three years is reduced in favour of the lambardar by Section 202. It is reduced as against the lessor only in respect to arrears which had accrued before the theka and it 13 reduced as against the thekadar only in respect to arrears accruing during the period of the theka.
7. In my opinion the view taken by the learned Judge of the lower Appellate Court is correct. The other point taken in this appeal is that the Courts below have erred in decreeing profits on the basis of gross rental. Both the Courts below have found on good grounds that the defendant lambardar was negligent. In fact it appears from the judgment of the lower Appellate Court that the plea was barely pressed before the learned Judge. There are no grounds for differing from the concurrent findings of negligence which the Courts below have arrived at. A decree has apparently been passed in favour of both respondents. It should be in the name of respondent 1 alone. With this modification the appeal is dismissed with costs. Permission to appeal under the Letters Patent is granted.