Bind Basni Prasad, J.
1. This is a plaintiff's appeal arising out of a suit for accounts and profits under Section 231, U.P. Tenancy Act, 1939. In the plaint the amount claimed was Rs. 4,665 as the plaintiff's share of profits and Rs. 584 interest, total Rs. 5,249. Learned Assistant Col. lector applying the principle laid down in Sub-section (2) of Section 233 for the valuation of khudkasht land and excluding the portion of the claim which according to him was time-barred, held that the plaintiff was entitled to Rs. 435-15-0 only for profits and Rs. 49-0-3 as interest, total Rs. 481-15-3. He decreed the suit for this amount and dismissed it for the remainder. The plaintiff comes in appeal and the following three points have been urged on its behalf : (1) That in the peculiar circumstances of this case Sub-section (2) of Section 232, U.P. Tenancy Act, is not applicable and the plaintiff's share of profits should have been determined on the basis of net yield of the plots in suit. This is the main point. (2) That no part of the claim is time-barred. (3) That so far as the claim related to the period prior to the commencement of the U.P. Tenancy Act, 1939, the provisions of Sub-section (2) of Section 233 thereof are not applicable.
2. There are certain undisputed facts which may first be stated. The suit relates to profits in respect of only 78.7 acres of specific plots in village Pohriya in the district of Gorakhpur. No claim for profits in respect of rent collected by the defendants from the tenants or any other land is made. In para. 15 of the plaint the plaintiff alleges as follows:
Besides the said lands there is a dispute among the parties in respect of certain other lands also, in respect whereof remedy if necesssary will be sought after- wards. There is an apprehension of accrual of a legal flaw. if a claim in respect of these lands is included in this suit and also there is an apprehension of unnecessary delay, and so the plaintiff files this claim reserving the rights in respect of the said plots.
3. It appears that up to the year 1911, the entire village was held by certain Thakurs, who are represented in the present suit by defendants second set and who appear as respondents 6 to 9, Under certain transfers and agreements entered into in 1912 and 1913 the Thakurs parted with their two annas share in this village in favour of certain Tewaris, who are represented in the present suit by the defendants first set and in this appeal by respondents 1 to 5. The Thakurs are thus proprietors of 14 annas share and the Tewaris of two annas share. For facility of reference, defendants second set and first set will be mentioned hereafter as the Thakurs and the Tewaris respectively.
4. In 1914, the Thakurs made a usufructuary mortgage of their 14 annas share to the Tewaris for a sum of Rs. 53,002-2-2. In 1932 the Thakurs executed a deed of usufructuary mortgage in favour of the Punjab Sugar Mills Co., Ltd., the appellant, for a sum of rupees one lakh in respect of their 14 annas share. The company undertook to redeem the earlier mortgage from the Tewaris and in pursuance thereof it deposited the amount due in Court under the provisions of Section 83, T. P. Act. The Tewaris accepted the amount and the earlier mortgage stood redeemed. During the continuance of the mortgage in favour of the Tewaris the latter ejected certain tenants and brought those plots under their own cultivation. These are the plots in respect of which the plaintiff claims profits in the present suit. The company claimed a right to the joint possession of the holdings which the Tewaris were cultivating. The Tewaris, however, did not allow them to cultivate the plots with the result that the company then brought Suit No. 65 of 1933 in the Court of the Civil Judge at Gorakhpur for joint possession of the plots and for mesne profits. The case went up to the High Court and on 14th December 1936 (reported as Punjab Sugar Mills Co. Ltd. v. Lakshman Prasad : AIR1937All321 a Bench of this Court granted the company 'a decree for joint possession' over the plots in suit and also for mesne profits from the date of the suit till the date of the delivery of joint possession. On 27th May 1937 the appellant obtained formal delivery of possession of the plots in suit through the Court On 19th August 1938, the Additional Civil Judge at Gorakhpun granted the company a decree for Rs. 7,553-4-2 with pendente lite and future interest at 6 per cent. per annum for mesne profits.
5. It appears that after the decree by this Court proceedings under Section 145, Criminal P.C., were started on police report against the company which was attempting to take actual possession of the plots proportionate to its share of 14 annas as mortgagees. By the order, dated 22nd October 1937, learned Magistrate held that there was a serious apprehension of breach of peace and he accordingly made a declaration of possession in favour of the Tewaris and prohibited the company from interfering with their possession till they were evicted in due course of law. The company came up in revision to this Court and it was held that the decree, dated 14th December 1936 : AIR1937All321 for joint possession given by this Court did not entitle it to take possession over and cultivate any specific portion of the fields to the exclusion of the other party. The petition in revision was dismissed.
6. Chapter 3 in the history of this dispute relating to these plots begins with an attempt by the appellant company to give effect to the decree, dated 14th December 1936, passed by this Court in the revenue records. The Sub-Divisional Officer ordered for the entries being made in favour of the appellant in the revenue records. The case went up to the Board of Revenue and by the order, dated 1st February 1938, it held that the appellant had not acquired any sir or khudkasht rights in the plots in suit and so it could not be recorded as the sir or khudkasht holder thereof. The order of the Sub-Divisional Officer for the correction of the papers was accordingly set aside.
7. Chapter 4 consists of an attempt by the Thakurs under Section 36, U.P. Land Revenue Act, 1901, for a declaration of their exproprietary tenancy rights to the extent of their 14 annas share in the plots in suit and for the demarcation of their share in the land. Relying upon the decision of the Board of Revenue referred to above, learned Additional Collector by his order, dated 9th August 1939, rejected the claim of the Thakurs.
7a. The last chapter in the history of the litigation about these plots consists of the partition proceedings instituted by the appellant against the Tewaris. It appears that those proceedings have been dragging on, and so far the appellant has not been able to obtain partition by metes and bounds.
8. I pass now to consider the three points raised in the appeal. Taking the first point, it will be seen from the judgment, dated 19th August 1938, delivered by the Additional Civil Judge in suit No. 65 of 1933 that he. allowed mesne profits to the plaintiff-appellant 'on the basis of the defendants' actual possession.' It is claimed on behalf of the appellant that the same should be the measure of profits in the present suit. There is a difference between that suit and the present one. It was a suit in the civil Court in which mesne profits as defined in Sub-section (12) of Section 2, Civil P.C. had to be determined. According to that definition, mesne profits of a property means those profits which a parson in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. The present suit, however, is not for 'mesne profits' but for 'profits under Section 231, U.P. Tenancy Act, 1939.' While in the former suit the provisions of the Tenancy Act were inapplicable, in the present one they are binding. The measure of profits from khudkasht land as provided in Sub-section (2) of Section 233 cannot be ignored.
9. Section 233 provides as follows:
233. (1) In a suit for settlement of accounts under Section 230 or Section 231 the collections made by a co-sharer shall, in the absence of any custom or contract to the contrary, be treated as having been made on behalf of all the co-sharers.
(2) In any such suit, the valuation of sir which is not let and of khudkasht which has been cultivated continuously for three years at the date of the suit shall, for the purposes of calculating the amount divisible among the co-sharers as profits, be made at the rate applicable to exproprietary tenants; provided that if such sir is let the rent payable by the tenant thereof ahull be accepted as the fair valuation, unless the Court, for reasons to be recorded, decides to make the valuation in some other manner.
The suit from which this appeal arises is described in the plaint as one under Section 231. It was brought in the revenue Court, I am unable to boo how in the face of this clear statutory provision, the plaintiff can escape the provisions of Sub-section (2) of Section 233 in the measure of profits from the khudkasht plots in suit.
10. Learned Counsel for the appellant has strenuously urged that Section 233 (2) applies only to the khudkasht land to which the defendant has the exclusive right of possession against the co-sharers subject to a liability to account for profits and not to the khudkasht land over which the plaintiff and defendant both have a right of joint possession as in the present case. He contends that it would be a grave injustice to the plaintiff to award it profits according to the rates applicable to ex-proprietary tenants. The wide difference between the profits as calculated on the basis of the rates applicable to ex-proprietary tenants and those on the basis of net gain by actual cultivation is pointed out by reference to the judgment under appeal and that of the Additional Civil Judge, dated 19th August 1938, by which mesne profits were decreed by him. According to the last mentioned judgment, mesne profits for the plots in suit were determined at Rs. 1790/12/9 per annum; whereas, according to the judgment under appeal, profits have been found to be Rs. 198-15-6 only. There can be no denying the fact that there is a great difference between the two rates, but the law is there and when it prescribes a method for the valuation of the khudkasht land, in a mandatory manner we are bound to give effect to it. Learned Counsel for the appellant argues that the law should be so interpreted as to avoid the hardship, but where the law on a subject is explicit it is conclusive. It is for the Legislature to remove the hardship. The word 'khudkasht' in Sub-section (2) of Section 233 appears without any qualification. There is nothing in-it to confine it only to the khudkasht land to which the defendant has the right of exclusive possession. There is' nothing in it to exclude from its operation the khudkasht land to the joint possession of which the plaintiff and the defendant both are entitled. To agree to the appellant's contention would mean inserting words in Sub-section (2) of Section 233 which do not appear there.
11. Learned Counsel for the appellant has argued that to uphold the decree of the lower Court as to the measure of profits would in effect be nullifying the decree of this Court, dated 14th December 1936, by which joint possession was awarded to it. I am unable to agree with this. A perusal of the judgment of this Court will show that the plaintiff-appellant was not declared joint khudkasht holder with the Tewaris. In fact that could not be the intention of this Court. The position of the plaintiff is that of a mortgagee. The Tewaris had obtained the possession of these plots prior to the mortgage of 1932, in favour of the appellant. On coming into force of its mortgage in 1932, the appellant could not under the law obtain khudkasht rights over these plots. Nowhere in the judgment of 1936 has this Court recognised the khudkasht rights of the appellant in respect of the plots in suit. Nor has this Court said anywhere in its judgment of 1936 that in future suits for profits under the provisions of the Tenancy Act the measure will be not in accordance with the provisions of such Act but on the basis on which mesne profits are determined by civil Courts.
12. Learned Counsel has also argued that this is not a suit under Section 231, U.P. Tenancy Act, 1939, because it is in respect of certain specific plots and not that of a Mahal. In the first place, this argument is hardly open to the plaintiff when it brought the suit in the revenue Court describing it as one under Section 231. Secondly, it will be seen from Section 231 that the suit for profits may relate to a Mahal or 'any part thereof.' The word 'Mahal' is defined in Sub-section (4) of Section 4, U.P. Land Revenue Act, 1901. It is 'a local area ' held under a separate engagement for the 'payment of land revenue. The plots in suit are part of such local area and, as such, they are a part of a Mahal. The suit is clearly one under Section 231, U.P. Tenancy Act, 1939. Having regard to Section 242, it is in the revenue Court alone that such a suit for profits can lie.
13. I hold that the lower Court was correct in applying the provisions of Sub-section (2) of Section 233 for the valuation of the khudkasht land in suit.
14. Coming to the second point, according to serial No. 15 of Group A of the fourth Schedule in the U.P. Tenancy Act, 1939, the period of limitation for a suit by a co-sharer against a co-sharer for a settlement of accounts and for his share of profits of the Mahal or any part thereof is three years and the time from which the period begins to run is when profits become divisible under Section 229. Section 229 provides:
In the absence of the determination of the date by the settlement officer, or of an express agreement among the co-sharers, profits shall be divisible on such dates as the Provincial Government may, by rules made under this Act, prescribe.
15. There is no evidence on the record to show that any date has been determined by the settlement officer or any agreement as to the date for the division of profits exists among the co-sharers. The Provincial Government have prescribed 1st February and 1st August for the division of profits of Rabi and Kharif crops respectively or 1st August when the profits are divided annually. It was for the plaintiff to prove whether the profits are divided annually or by instalments. It will be seen from pages 80 and 81 of the paper-book that less than half the area in suit has been under sugarcane and more than half under Kharif crops. It would not be too much to take it that the profits were divisible on 1st February and 1st August. This suit was instituted on 31st July 1941. Hence the profits which became due on 1st February 1938, are time-barred. The rest of the claim is within time. I agree with the finding arrived at on this point by the learned Assistant Collector.
16. Coming to the third point, the argument is that the U.P. Tenancy Act came into force on 1st January 1940. The claim relates to the years 1938-1940. It is urged that the portion of the claim relating to the period prior to the commencement of the U.P. Tenancy Act, 1939, cannot be governed by Sub-section (2) of Section 233. There are two objections to this argument. Section 233 (2) is a law of procedure, and, therefore, it would apply even to suits relating to the period prior to the commencement of the Act. The policy of the law will appear from Section 296 of the Act. It is true that the section does not in terms apply to the present case, as it relates only to pending suits. But when the provisions of the new Act were made applicable even to pending suits, it would not be too much to take it that even the claims relating to the period prior to the commencement of the new Act would be governed by its provisions. The second objection is that, although under the Agra Tenancy Act, 1926, there was no statutory provision for the valuation of khudkasht parallel to Sub-section (2) of Section 233, U.P. Tenancy Act, 1939, the case law on the subject, however, laid down the same measure and the provisions of Sub-section (2) of Section 233, U.P. Tenancy Act, 1939, reproduces what the case law on the subject under the Agra Tenancy Act, 1926, laid down. I see no force in this contention.
17. For the reasons given above, I would dismiss this appeal and would let the parties bear their costs.
18. I have had the benefit of reading the judgment of my brother Bind Basni Prasad.
19. The point raised in this case is very simple, though it has now become complicated on account of the peculiar incidents of sir and khudkasht rights under the revenue law.
20. My learned brother has set out the facts in detail. Briefly speaking, the respondents Nos. 1 to 5 (first set) who may for brevity, be called the Tewaris are the owners of 2 annas share in village Pohriya. They were usufructuary mortgagees of 14 annas share of the Thakurs who are respondents 6 to 9 (second set). During the continuance of the mortgage, they ejected certain tenants and took possession of about 80 acres of land and put it under their own cultivation. This land, according to the definition of sir and khudkasht in the Tenancy Act of 1926, became their sir and khudkhasht. In 1932 the mortgage was paid off by the plaintiff-appellant, the Punjab Sugar Mill Co. Ltd., in whose favour a second mortgage with possession was executed by the Tewaris.
21. After redemption of the mortgage, the Punjab Sugar Mill Co. Ltd., wanted joint possession of these 80 acres. The matter came up to the High Court, and a Bench of this Court decided on 14th December 1936, : AIR1937All321 , that the plaintiff appellant, that is the Punjab Sugar Mill Co. Ltd., was entitled to joint possession. This judgment proceeds on the basis that any property acquired by the Tewaris while they were mortgagees of 14 annas and proprietors of 2 annas must enure for the benefit not only of themselves but also of their mortgagors. If I may say so, the principle on which this judgment is based cannot be seriously questioned. One point which was, however, not brought to the notice of the Court and which the Court did not, therefore, make clear in its judgment was the capacity in which the Punjab Sugar Mill Co. Ltd., was being put in joint possession of the property.
22. Under the Tenancy Act, a mortgagee cannot be a sir holder nor can the land under his own cultivation become his khudkasht land. Though the Thakurs may have been entitled to joint possession of sir and khudkasht as cosharers with the Tewaris, the Punjab Sugar Mills Co. Ltd., as mortgagees had no right to claim possession of sir and khudkasht land as such. On the basis of the High Court decision the Thakurs, at the time when they executed the second mortgage in favour of the plaintiff, were entitled to claim joint possession with the Tewaris in these 80 acres of land which was the sir and khudkasht of the Tewaris, but on the Thakurs executing the possessory mortgage in favour of the Punjab Sugar Mill Co. Ltd., they became the ex-proprietary tenants of the sir and khudkasht and were, therefore, entitled to remain in possession as ex-proprietary tenants, subject to the liability to pay rent in accordance with the provisions of the Tenancy Act to the mortgagee, the Punjab Sugar Mill Co. Ltd. If the Thakurs did not claim ex-proprietary rights and had allowed the mortgagee to get possession of the land, the mortgagee could not have claimed to be in possession of the land as its sir or khudkasht and the land would have ceased to be the sir and khudkasht of the Thakurs also.
23. According to the decision of the Full Bench in Ram Raj Singh v. Rajendra Singh : AIR1943All247 , if a cosharer does not claim ex-proprietary rights in sir and khudkasht it becomes the sir and khudkasht of the other cosharers, but the view of this Court before this Full Bench was different and the plea was, therefore, not raised before the Bench in the first appeal (First Appeal no. 386 of 1934, decided on 14th December, 1936 : : AIR1937All321 to which reference has already been made).
24. The position, therefore, is that the plots were the sir and khudkasht of the Tewaris. The High Court on 14th December 1936, held that the Tewaris took possession of these 80 acres not only as owners of 2 annas share but also as mortgagees of 14 annas share and, therefore, they were trustees to the extent of 14 annas for the Thakurs. Having held this the High Court gave a decree for joint possession to the mortgagee, the Punjab Sugar Mill Co. Ltd. The High Court did not say that the mortgagee would be considered to be the sir holder or the khudkasht holder to the extent of 14 annas; nor could they possibly do so as that would have been against the provisions of the Tenancy Act.
25. The law has now become well settled that a decree for joint possession does not entitle a plaintiff to take actual physical possession of the property, his only right being to claim partition. One would have thought that when a Court gives a decree for joint possession it necessarily intends that the judgment-debtor is not entitled to exclusive possession either and it intends that both parties, the decree-holder and the judgment-debtor should thenceforward be both in actual physical possession of the property. Be that as it may, as a result of the decision of this Court, the mortgagee, the Punjab Sugar Mill Co. Ltd., was given formal delivery of possession. When they went to take actual possession of the land they were resisted and the matter was fought up to this Court and this Court decided that a decree for joint possession does not give the decree-holder a right to get physical possession of the property. The mortgagee having failed to get physical possession of the property started proceedings for partition. Those proceedings, we are told, are still pending and may remain pending for several years yet.
26. Having failed to get physical possession the mortgagee filed this suit for its share of the profits of these 80 acres. The suit purports to be under Section 231, U.P. Tenancy Act. One simple answer, therefore, to the appellant's contention may be that the plaintiff having filed the suit under Section 231, U.P. Tenancy Act (Act XVII  of 1939), Section 233 (2) is clearly applicable to the case and the plaintiff is, therefore, liable to get profits in accordance with the provisions of that section. The learned Advocate-General has, however, urged that this is not a suit under Section 231 as it is not a suit by a cosharer against another co-sharer for a settlement of accounts and for his share of the profits of a mahal or a part thereof. He has urged with considerable force that this contemplates a suit for profits of a mahal or a part of a mahal, that is a part of the proprietary interest in the mahal, and that the present suit, which is only for the plaintiff's share of the profits of the 80 acres of land, is not a suit of the nature contemplated by Section 231. The difficulty, however, is that if this is not a suit under Section 231 the learned Advocate-General is not able to point to any other provision of the U.P. Tenancy Act under which this suit can be brought in the revenue Court.
27. I am inclined to agree with the learned Advocate-General that Section 233 (2) contemplates a case where a cosharer of the sir-holder in the proprietary rights in the mahal brings a suit for profits and it does not appear to contemplate a case where a cosharer in the sir or khudkasht rights brings a suit for profits against the other cosharer in the said rights. The decision to the contrary would lead to this anomaly that while both parties jointly own the sir and khudkasht, judgment-debtor, who may have misappropriated the whole of the profits, is not liable to account for all that he has got but is only liable to pay at the rate applicable to ex-proprietary tenants which is very much less than the actual profits that are made.
28. The question, however, in this case is whether we can go to the length of holding as a result of the decision of this Court in the year 1936 that the plaintiff, the Punjab Sugar Mill Co. Ltd., is the sir or khudkasht holder in these 80 acres along with the Tewaris. The High Court in the year 1936 did not say so, and in view of the fact that under the tenancy law a mortgagee cannot be the owner of sir or khudkasht rights it seems to me to be impossible to confer on the plaintiff those rights by a logical extension of the decision of the High Court in the year 1936.
29. If the plaintiff's suit for joint possession had been dismissed in the year 1936, the plaintiff, as a mortgagee of the 14 annas could have claimed profits from the Tewaris and he would have been given a decree against the Tewaris for profits of these 80 acres as sir or khudkasht land at the rate applicable to ex-proprietary tenants. If we give the plaintiff profits at the same rate, even after a decree for joint possession had been given to it, it appears at first sight that we are going behind the decision of this Court in the year 1936 which is inter partes and which is binding on us, but in view of the fact that this Court did not hold that the mortgagee was to be considered to be a joint sir or khudkasht holder, I do not see how I can do it now against the provisions of the Tenancy Acts.
30. The result, therefore, is that I concur in the order and direct that the appeal be dismissed, but in view of the peculiar, facts of the case I would not give the defendants-respondents their costs.
31. By the Court.--The appeal is dismissed, but, in view of the peculiar circumstances of this case, the parties are directed to pay their own costs of this appeal.