1. This is a plaintiffs' appeal arising out of a suit for profits. The plaintiffs have lost in all the Courts. They claimed to be entitled to the profits of the new khewat in the ratio which 1 bigha 5 biswas would bear to the entire area in that khewat. The facts found are that the plaintiffs had fractional shares in three plots, Nos. 1848, 1849 and 3156/1, constituting the old khewat 145/2. Owing to a re-union of khewats, instead of Nos. 145/1 and 145/2 we now have only khewat No. 145; but it consists of plots which were compromised in No. 145/2, in which the plaintiffs had shares as well as plots in the other subdivision which belonged to the defendants. The new khewat merely shows that the plaintiffs own 1 bigha 5 biswas in khewat No. 145. It nowhere shows that they owned an undivided fractional share in the entire khewat represented by the fraction 1 bigha 5 biswas divided by the total area of that khewat. In the Courts below the parties led evidence as to the extent to which the plaintiffs were entitled, and both the Courts below have found that the plaintiffs are entitled to shares in the three plots mentioned above, which they had acquired by purchase, and they have no interest in the other plots though they have all been incorporated in one khewat, No. 145. In appeal before the learned Judge the plaintiffs raised for the first time a new point that under Section 201(3) of the old Tenancy Act (Act 2 of 1901) there was a conclusive presumption in favour of the plaintiffs that they possessed the share which was recorded in their name. The learned Judge of this Court has repelleds this contention holding that the lower appellate Court was entitled to apply the provisions of the new Act.
2. In the first place it seems to us that the view taken by the learned Judge is perfectly correct. No doubt a majority of the Judges in the Full Bench of this Court in Durga Prasad v. Hazari Singh (1911) 33 All 799 had held that the presumption under Section 201(3) was conclusive so far as the revenue Court was concerned; but they also pointed out that that presumption could be rebutted in a separate suit in the civil Court. Indeed the section itself contained a proviso that the right of any person to establish by suit in the civil Court that the plaintiff had no such proprietary right would not in any way be affected. In the new Tenancy Act the legislature has dropped the provision as regards the presumption which had been responsible for a conflict of opinion in this Court. If the legislature has not accepted the interpretation put upon the old section by the Full Bench and has deleted it in order to make its meaning clear then the position would be simpler. In any case, at the time when the appeal was before the lower appellate Court the new Act had come into force, and the appellate Court which was the judge of facts was entitled to record a finding on the question of fact which was raised before it, and had to decide under Section 226, Agra Tenancy Act, the extent of the share of the profits to which the plaintiffs were entitled. It was no longer handicapped by the provision in the previous Act, which had been dropped in the meantime. The learned Judge has rightly pointed out that the rule about presumption was a rule of procedure, and would ordinarily stand repealed, and could not be applied by the appellate Court even though the suit had [been filed in the trial Court before the;new Act came into force. We accept the view that there was nothing which precluded the lower appellate Court from going into the merits and deciding the point in favour of the defendants.
3. We may further point out that it is not at all clear that even the provisions of the old Section 201 have in any way been violated. The entry in the khewat merely shows that the plaintiffs were entitled to 1 bigha 5 biswas in khewat No. 145. It did not specify the exact fractional share to which they were entitled in the whole khewat. The findings of the lower Courts that the plaintiffs' rights are confined to three plots must be accepted as correct. The mere fact that they, along with other plots now constitute the new sub-division, khewat No. 145, would not confer any right on the plaintiffs to claim any share in the other plots which have belonged to the defendants. The mere reunion of plots so as to constitute a new joint khewat would not confer any fresh rights on the plaintiffs, or disturb the respective proprietary interests of the parties. We therefore dismiss this appeal with costs.