Karamat Hussain, J.
1. The plaintiff instituted a suit for a share of profits against the lambardar. The plaintiff held 40 bighas 17 biswas of sir land the farzi rent of which was entered in the Revenue papers as Rs. 40-10-8. Before the Court of first instance the Revenue agents of the parties agreed that the proper rent for the sir land held by the plaintiff should be calculated at the rate of Rs. 5 per bigha. The remarks of the first Court on this point are in the following terms:
2. 'The parties did not object to this at first and with the consent of Revenue agents on both sides. I take Rs. 5 as the proper rate to apply in this case for 'sir' and exproprietary tenure.' On taking account at that rate the Court of first instance found that nothing was due to the plaintiff and dismissed the suit. The plaintiff appealed and the learned District Judge was of opinion that farzi entry in the Revenue papers was the rent which was to be assumed as the rent when the village accounts were settled and that it was incorrect to assess sir lands to rent for the purpose of settling village accounts between the co-sharers. He, therefore, modified the decree of the first Court and gave the plaintiff a decree for Rs. 190 with costs. The defendant has preferred a Second Appeal to this Court and it is contended on his behalf that for calculating the share of profits it is necessary to take into account the proper rent assessable on the plaintiff's sir and that as the Revenue agent for the plaintiff agreed that Rs. 5 per bigha was the proper rate of rent for the sir the plaintiff was bound by that admission and could not dispute that rate of rent before the lower appellate Court. The learned vakil for the respondent regarding the admission of the Revenue agent of the plaintiff says that he resiled from that position before the Court of first instance and that under such circumstances his admission could not bind the plaintiff. With reference to the assessment of proper rent on the sir he says that the plaintiff, so for as his sir is concerned, is to be regarded as a tenant of the co-parcenary body; that his rent is to be determined in accordance with the provisions of Sections 37 and 43 of the Agra Tenancy Act and that unless under the provisions of those sections some rate of rent is determined the farzi rent entered in the Revenue papers against his name should be taken into account in determining the share of profit of the plaintiff. When a co-sharer in the village cultivates a certain portion of land in that villages he cannot be regarded as a tenant of the co-parcenary body. In Kalee Pershad v. Shah Lutafut Hossein 12 W.R. 418, at page 420, the legal position of a co-sharer who cultivates some land in the village is stated in the following terms:
3. The legal position of co-sharers in an estate occupying separate portions of it for their own purposes is that each possesses and holds in respect of his several rights to enjoy that which is his own. If anyone holds a portion of land larger than his share either as being greater in extent or greater in value, inequality may be rectified by a partition or if a dispute arises on a division of the annual profits it may be adjusted in a suit for an account in which the rights and equities of all the parties can be fully dealt with. But that is a suit which is not cognizable under Act X of 1859.' In the case of Jodha Singh v. Oomaid Singh 2 Agra Revenue Cases, 5 learned Judges remarked as follows:
4. 'The relation of landlord and tenant does not exist between the parties to this case, who are co-parceners in the land in question which is held as sir by the defendant.' The above rulings clearly show that a co-sharer with reference to his sir cannot be regarded as a tenant. The contention of the learned vakil for the respondent that accounts should be taken with reference to the farzi? It seems to me very unfair that a co-sharer who is in possession of some sir land should be allowed in calculating his share of profits to hold it at a farzi rate of rent. This in many cases will occasion a grave injustice to the lambardar. He must be deemed to hold it at a proper rent.
5. Regarding the question of agreement I am of opinion that the plaintiff is bound by the admission of the proper rate of rent made by his Revenue agent at the trial. See Kaleekanand Bhuttacharjee v. Gireebala Debia 10 W.R. 322 and Rajunder Narain Rao v. Rijai Govind Singh 2 M.I.A. 353, and other cases quoted on page 348 of the Law of Evidence in British India by Messrs. Ameer Ali and Woodroffe, 3rd edition. After making the admission before the Court a subsequent resilience from that position is, in my opinion, of no avail and the plaintiff is bound by the admission made by his Revenue agent as to the rate of rent. The result is that I allow the appeal, set aside decree of the lower appellate Court and restore that of the Court of first instance with costs.