Piggott and Walsh, JJ.
1. In this case the plaintiff purchased at auction the entire twenty biswas of a certain mahal. On endeavouring to take possession of the property he was resisted by the three defendants, who claimed to be the joint owners of a share of three biswas and odd in the said mahal. The plaintiff was driven to bring a suit for possession in respect of this share. The suit was decreed in his favour as long ago as the 29th of June, 1911, and eventually that decision was affirmed in appeal up to this Court. In that suit the plaintiff, for some reason or other, had omitted to claim mesne profits, and it is not denied that by reason of this omission he can get no mesne profits from the defendants on account of his dispossession up to the date of the institution of the said suit. In the present suit, filed on the 31st of July, 1913, the plaintiff claimed mesne profits on account of the share of three biswas and odd from the date of the institution of his former suit up to the date in the month of August, 1911, on which he had actually obtained possession under the decree in his favour. Apparently the plaintiff had delayed the institution of this suit while awaiting the result of the appeal from the decision in his favour, and one consequence has been that a substantial portion of his present claim is barred by limitation, It is now common ground that, if the plaintiff is entitled to recover mesne profits at all, his claim must be limited to a period of about a year prior to the month of August, 1911, when he succeeded in obtaining possession. Practically the question in issue is now limited to the plaintiff's claim for the profits of this share of three biswas and odd for the agricultural year 1318 Fasli. The claim was resisted upon various grounds, but we are still concerned only with two preliminary objections taken by the defendants. The first of these was that the claim for profits was one exclusively cognizable by a Revenue Court and therefore barred so far as the Civil Courts are concerned by the provisions of Section 167 of the Local Tenancy Act (No. II of 1901). The other plea was that the present claim is also barred in its entirety by the provisions of Order II, Rule 2, of the Code of Civil Procedure. This plea is based upon the fact that, a few days before the institution of the present suit, the plaintiff had brought a claim against one of the present defendants, namely, Bhagwan Sahai, who was lambardar of the entire mahal, on account of the profits, not of the share now in dispute, but of the remaining share of sixteen biswas and odd, as to which the plaintiff's title under his auction-purchase was not, and never had been, disputed. The profits claimed in respect of the share of sixteen biswas and odd wore for the agricultural years, 1317 and 1318 Fasli. The contention, therefore, is that any claim which the plaintiff may have against these defendants on account of the profits of the share of three biswas and odd for the year 1318 Fasli should have been included in his claim against the lambardar Bhagwan Sahai in the suit which was limited to the profits of the share of sixteen biswas and odd. The court of first instance decided both these points in favour of the defendants and dismissed the suit. On first appeal the learned Subordinate Judge pronounced no decision with regard to the objection taken under Order II, Rule 2, of the Code of Civil Procedure, but held that in any event the plaintiffs claim for the profits of the share of three biswas and odd should have been brought before a Revenue Court and that the court of first instance had rightly refused to entertain it by reason of the provisions of Section 167 of the Tenancy Act. In coming to this decision both the courts below had overlooked the expression 'except in the way of appeal as hereinafter provided' used in Section 167 aforesaid, as well as the subsequent provisions of Section 196 of the same Act. When the case came before this Court in second appeal this point was taken on behalf of the plaintiff. The learned Judge of this Court who decided that appeal, by an order, dated the 15th of June, 1916, confined himself to pointing out the obvious error into which the courts below had fallen, He pronounced no opinion as to whether the suit was one which ought as a matter of fact to have been instituted originally in a Revenue Court or in a Civil Court. In either case it was obvious that the provisions of Section 196 of the Tenancy Act (No. II of 1901) applied to the case and that the court of first appeal should have enforced those provisions. The case, therefore, went back with a direction to the lower appellate court to dispose of the appeal as if the suit had been instituted in the right court. The learned Subordinate Judge, having received the case back with this direction, has once more dismissed the plaintiff's claim, this time upon a finding that the suit is barred by the provisions of Order II, Rule 2, of the Code of Civil Procedure. The plaintiff has been driven to filing another second appeal against the decision on this preliminary point. If we limit our attention strictly to the provisions of the rule in question, the only point which we have to consider is whether the cause of action for the present suit is the same as the cause of action for the suit brought against Bhagwan Sahai as lambardar of the mahal for the profits of the years 1317 and 1318 Fasli due to the plaintiff in respect of his undisputed title to the share of sixteen biswas and odd. The question stated in this way seems only to admit of one answer, namely, that the causes of action are not the same. One was a suit against the lambardar to recover a share of profits lawfully collected by him as lambardar of the mahal in respect of a share as to which the plaintiff's title had never been disputed. The present suit is against three defendants on the allegation that they have been in unlawful possession as trespassers over a share of three biswas and odd belonging to the plaintiff for a certain period of time, including the year 1318 Fasli, to which the present claim is now limited. As a matter of fact we have had to consider a very ingenious argument put forward on behalf of the defendants respondents and supported by a certain amount of authority. The truth of the matter is that the questions raised by the two preliminary objections stated at the commencement of this judgment are to a certain extent connected together. It is a pity that the lower appellate court ever undertook to separate them and to dispose of one of them singly. One unfortunate result of this has been that the plaintiff has had to file two second appeals in order to secure a trial of his suit on the merits. As put to us in argument the case for the respondents amounts virtually to this; it being admitted that Bhagwan Sahai was lambardar of the whole mahal right up to the close of the year, 1318 Fasli, no suit will lie against any of the defendants on the allegation that they were unlawfully in possession as trespassers over the plaintiff's share of three biswas and odd, the only remedy open to the plaintiff upon this state of facts being to sue Bhagwan Sahai alone as lambardar for the share of the profits due in respect of his fractional share. Authority for this proposition is sought in the case of Amin-ul-lah v. Hajira (1906) 3 A.L.J., 767, in which a learned Judge of this Court purported to follow an older decision to be found in the Weekly Notes for 1894, at page 127. If we thought it necessary to do so we should be prepared to give expression to certain doubts which we feel as to the correctness of the decision in Amin-ul-lah v. Hajira (1906) 3 A.L.J., 767, but, whether or not that case was rightly decided, we have no doubt whatever that the present case is distinguishable upon its facts. A claim for profits under the Tenancy Act (No. II of 1901) is only a form of suit between joint owners of property in which one joint owner, without dispossessing the others, has managed to secure for himself more than his fair rateable share of the profits accruing from the said property. In the case of a suit against a lambardar the only difference is that the defendant is a person authorized under the law to receive profits of the entire mahal on behalf of all the co-sharers. In the present case the plaintiff was the lawful owner of the entire mahal from the date of his auction-purchase, and it was only by reason of a wrongful act on the part of the three defendants that he was kept out of possession of the share of three biswas and odd and prevented from enjoying the profits of the same for a certain period of time, including the year 1318 Fasli. Under these circumstances there seems no reason whatever why the present suit should not be maintainable on the basis on which it has been brought; namely, as a claim for mesne profits against three trespassers who, by reason of their unlawful possession over the share of three biswas and odd, have been keeping the plaintiff out of the enjoyment of the profits of the same. It has been sought on behalf of the respondents to press against the plaintiff certain arguments derived from the frame of the suit, in order to induce us to hold that the said suit, although on the face of it a claim for mesne profits as against three trespassers, was in substance and reality something different. On this point it seems sufficient to say that the plaintiff, when he instituted the present suit, was in difficulties on the question of limitation. In an attempt to evade these difficulties he has drafted a portion of his plaint in a form not strictly consistent with the nature of the claim itself, his object being to make it appear that his claim in respect of profits for the year 1317 Fasli was also within limitation. That point has now been given up, the appeal before us being limited to the claim for profits for the year 1318 Fasli. Consequently, it seems only fair to the plaintiff to hold that those portions of his plaint which have been pressed in argument before us do not really boar the interpretation sought to be put upon them and do not change the nature of the suit so as to make it anything but a claim for mesne profits against trespassers. In our opinion the lower appellate court ought to have reversed the decision of the court of first instance upon this second preliminary point and seat the case back for trial on the merits, that is, for the ascertainment of the simple question of fact, namely, the amount of profits for one year prior to the institution of this suit, that is to say, for the year 1318 Fasli, of which the plaintiff has been deprived by reason of the trespass of the three defendants. We now pass the order which in our opinion the lower court ought to have passed. We reverse the decision of the first court on the preliminary point and send the case back to the Court of first instance through the lower appellate court in order that it may now be finally taken up and disposed of on the merits, it being understood, as already stated, that the claim is now limited to a sum of Rs. 175 as profits for the year 1318 Fasli. We think the plaintiff is in any event entitled to his costs of this appeal, and we order accordingly.