1. This is a second appeal from the decision of the Additional District Judge of Agra. The plaintiffs brought a suit for profits against a co-sharer. The facts are that the grandfather of the defendant held the plot in this case as his sir in 1887, and it continued to be so recorded up till 1902. The plaintiffs brought a suit against the present defendant for the share of profits which he had to account for the general co-parcenary body for this plot. The defence was that the defendant had planted a grove upon this land and therefore was not liable to account for profits of this portion of land. The lower appellate Court has come to the conclusion that this defence is sound. The learned Judge says that in the years in suit this was not sir land, but grove land, and so long as it is grove it cannot be treated as sir. The plaintiffs appeal. It is now in my opinion impossible to up hold the judgment of the lower appellate Court. The mere planting of trees upon sir land cannot take that portion of land out of the mahal or the co-sharer out of the co-parcenary body. The owner of the sir must account to the general co-parce-nary body and it makes no difference whether he uses the land for growing wheat or for growing fruit. Counsel for the respondent seeks to defend the judgment on the ground that many years ago the defendant had applied to the Sub-Divisional Officer for a reduction in the Government revenue on this particular plot and had been successful. He contends that this amounted to an assertion of adverse title as against the general body of co-parceners, and that therefore by the time the suit was commenced adverse possession had been established. The main difficulty in this contention is that adverse possession was never pleaded there is no issue upon it, and it has never been discussed. It is a matter of evidence, and cannot be dealt with herein second appeal. Secondly, it is impossible that this could amount to adverse possession. The general body of co-parceners were not parties to this application. The reduction was not made upon the particular plot but upon the mahal as a whole. Since the reduction there has been a re-partition of the mahal and two new mahals have been carved out. Both new mahals get the benefit of this reduction. The fact is that the defendant is still a co-sharer, and this plot of land is still part of the zamindary. The defendant will therefore have to account for the profits of this plot.
2. It has further been argued at this late stage that unless the plaintiffs could show that the defendant had paid them something within the last 12 years, the suit would be barred by limitation. I do not agree. In any event, this is a question which has not been dealt within the judgment. It would require evidence, and I cannot take evidence at this stage. The appeal is allowed, the decree of the lower appellate Court is set aside and that of the trial Court restored with costs.
3. Leave to appeal in Letters Patent is refused.