1. This is a second appeal from the decision of the learned District Judge of Ghazipur. The plaintiff brought an action for recovery of her share of profits of a mahal under the old Tenancy Act. The revenue Court decreed the suit. The lower appellate Court has dismissed the suit.
2. The dispute concerned a plot of land in the abadi of the village. The plaintiff and the defendant are co-sharers in the mahal. The defendant had a house in the abadi in which he lived. In the years 1330, 1331 and 1333 Fasli, the house having disappeared, the land was cultivated by the defendant through some sub-tenants. The lower Courts have found that the plaintiff's share of the profits for the three year if recoverable, amounted to Rs. 22 odd. The lower appellate Court came to the conclusion that as this was abadi land and the plot had been used for a house by the defendant, the profits arising in these three years would not be divisible among the general body of co-sharers.
3. In my opinion, the lower appellate Court is wrong in law. Section 165(1) of the Act of 1901, says that a co-sharer may sue another co-sharer for settlement of accounts and for his share of profits of a mahal or any part thereof. A co-sharer in a mahal occupies a house in the abadi by the license of the other co-sharers, and so long as he occupies only his correct share of the abadi, he would not be responsible to the other co-sharers for any profits. This might be otherwise if he was occupying a larger share in the abadi than he would be strictly entitled to. Where however the co-sharer derives profits from his plot in the abadi, there is, in my opinion, no reason why he should not have to account for those profits to the general body, and where, as in this case, the plot of land had yielded profits by the production of crops, there can be no reason why those profits should not be divisible among the general body of co-sharers. The mere fact that the profits arc obtained from the abadi area makes no difference in land. It may well be that even if there was a house on the plot and the co-sharer obtained profits by letting that house to a tenant, those profits would also be divisible among the general body.
4. In this view of the matter the appeal must be allowed. The decree of the lower appellate Court is set aside and that of the trial Court restored. The appellant will have her costs throughout. As this appears to be a point on which there is no authority, leave is allowed to appeal in Letters Patent.