1. This is a second appeal against an order of the District Judge of Aligarh, upholding a decree of an Assistant Collector of that district. The suit was one for profits for the years 1325, 1326 and 1327 Fasti, brought by two co-sharers under Section 165 of the Tenancy Act against the lambardar and other co-sharers. The defendant-appellant Puran was also impleaded on the allegation that he bas been a thekadar from the lambardar and had been making collections. Both the Courts below have granted joint and separate decrees against him as wall as against the other defendants.
2. It is common ground to both parties that the defendant appellant Puran's tbeka was cancelled before the year in suit. The case against him, as sat out in the plaint, was (1) that he was in possession of a small part of land as khudkasht, and (2) that he had been making collections. Both Courts have found in the negative on the first point, and in the affirmative on the second. In appeal it is argued that, even if Puran had been a thekadar since 1325 Fasli, a suit would not lie against him under Section 165, as the thekadar is not a co-sharer and as his lease had previously been terminated, ha is no more than a stranger who has been allowed by the lambardar to make collections. The learned District Judge has held, evidently with soma hesitation, that the plaintiffs were justified in making him a party to the suit as a debtor of the lambardar or co-sharer, who had farmed out the zemindari to him, and the learned advocate for the respondents has contended that, even if the suit against him should have been brought in the Civil Court, the provisions of Sections 196 and 197 of the Tenancy Act cover the case. This argument is obviously unsound. There is no question that this suit, which was one for profits under Section 165, was properly brought in the revenue Court: the only question is whether the defendant-appellant was properly impleaded, and with this matter Sections 196 and 197 have no concern.
3. The defendant-appellant was not a co-sharer or a legal representative or assignee of the co-sharers and, therefore, no suit under Section 165 could lie against him. The appeal is allowed and the suit as against the defendant-appellant will stand dismissed with costs on the higher scale in all Courts.