1. In a profits suit separate decrees were passed one for Rs. 72 against Kewal Deo Singh and another for Rs. 10 against Sheo Prasad Singh. This second appeal is valued at Rs. 72, so it must betaken that Sheo Prasad Singh has not appealed. His appeal is dismissed, and the question shall be considered as regards appeal by Kewal Deo Singh only. The plaintiff is purchaser of a 4-anna share of proprietary interest from the defendants. The parties are in separate possession as regards recovery of rent from tenants. With respect, however, to certain sir and khudkasht lands cultivated by the defendants alone, it was alleged that the plaintiff should be granted one-fourth of the profits derived by the defendants out of the lands. The trial Court carefully considered the amount of profits, and fixed the plaintiff's share at Rs. 84 as against Kewal Deo Singh. Mr. Khirod Gopal Banerji lately Judge of the Ghazipur District has written one of his numerous judgments which are in no sense judgments at all but merely evasions of the responsibility of deciding issues. It was strenuously defended that part of the land in possession of the defendants was not sir, but exproprietary tenancy, and the learned Judge makes this extraordinary remark in his judgment:
The defence was that the land was sir and khudkasht of the defendants.
2. There would be no dispute between the parties if such were really the defence. The judgment of such a Judge can only be ignored. An interesting point was raised in appeal by Mr. Haribans Sahai that as regards the sir land, the plaintiff cannot claim his share of profits. It was the duty of the plaintiff to get rent assessed on his share of the sir land and recover rent thereof from Kewal Deo Singh. Having regard to the mandatory provisions of Section 10, Tenancy Act I agree with this argument.
Every proprietor, whose proprietary rigts in a mahal or in any portion thereof whether ill any share therein, or in any specific area thereof are transferred shall become a tenant with a right of occupancy in his sir land.
3. Clause (3) of the section for this enacts:
If a part only of the share of a proprietor in a mahal is so transferred such proprietor shall become a tenant with a right of occupancy in so much of his sir land as appertains or corresponds to such part of his sir.
4. A ruling of the Board of Revenue (Chaudhri Kamaluddin v. Ramzan Ali Selected decisions 1920 edition p. 746) would indicate that in the opinion of the Board the vendor proprietor had to do something before he could be divested of his sir rights. No reason is given for such a view. The mandatory language of S 10, Tenancy Act, 1901 is not considered. I hold that a proprietor automatically becomes an exproprietary tenant of that share of his sir land corresponding to the share of the zamindari property sold by him. Under Section 36, Land Revenue Act, the Collector ought to have fixed a rent for one fourth of the sir land of Kewal Deo Singh. Even when he failed to do so under Clause (4) of that section the lanholder was at liberty to get rent fixed. No period of limitation is prescribed, and the landholder can proceed to get the rent fixed at any time during the continuance of the exproprietary tenancy. In my opinion the exproprietary tenancy has been created automatically and the plaintiff must proceed to get rent assessed thereon and then recover rent of the land from Kewal Deo Singh. He cannot be permitted to take the profits of that area of land into consideration in a suit for profits.
5. In the present case he claimed his share of profits of 27 bighas of land approximately. Out of this 17 bighas is sir land, so he is entitled to recover profits of 10 bighas of land only. According to the rent fixed by the trial Court he would be entitled to Rs. 31 and not Rs, 84 as granted by the trial Court.
6. In the result I maintain the lower appellate Court's decree for Rs. 10 with other corresponding orders against Sheo Prasad Singh and reduce the decree against Kewal Deo Singh to Rs. 31 with proportionate costs and interest. In this Court Sheo Prasad Singh shall receive no costs and Kewal Deo Singh shall receive costs on Rs. 41 and pay costs on Rs. 31.
7. The objection by way of appeal is quite correct that the lower appellate Court has given no reasons for his judgment. I have, however, calculated profits on the basis of the decree of the trial Court so the plaintiff will have no grievance. Order as to the objection is included in the main decree. So no separate order on the objection is necessary.