1. The only question in this appeal is whether the claim of the plaintiff-appellant is barred by the provisions of Section 43 of Act No. XIV of 1882. Two suits were instituted by the plaintiff on the same date. The first, suit which was No. 33, was brought under Section 165 of the Agra Tenancy Act against the defendant as co-sharer for settlement of accounts and for the plaintiff's share of profits in respect of the year 1309 Fasli. The second suit was brought against the defendant as lambardar for the plaintiff's share of the profits for the years 1310 and 1311 Fasli, and this suit purported to have been brought under Section 164 of the same Act.
2. The Court below has held that the second suit, which was No. 34, is barred under Section 43 of the Code of Civil Procedure, 1882. The learned Judge was of opinion that the cause of action in respect of both suits was the same 'whether the defendant made collections as a co-sharer or as a lambardar.'
3. We are unable to agree with the learned Judge. In our opinion the two suits were suits of different descriptions and the causes of action were not the same. The legislature by enacting Sections 164 and 165 of the Tenancy Act clearly contemplates two classes of suits. A suit under Section 164 is a suit against the lambardar for the plaintiff's share of profits. The suit under Section 165 is a suit against a co-sharer as such for settlement of account's and for the plaintiff's share of the profits found to be due upon an account being taken. The cause of action for a suit of the latter description is the fact that the co-sharer who made collections had not accounted for the collections made and had not paid to the plaintiff his share of the profits. These two causes of actions are clearly distinct and it was intended by the legislature that they should be deemed to be distinct. In this view we think the suit brought by the plaintiff for the profits of 1310 and 1311 Falsi against the defendant in his capacity as lambardar in so far as the claim against him as such lambardar during any portion of those years can be established is not barred by the provisions of Section 43. The result is that we allow the appeal, set aside the decree of the Court below and remand the case to that Court under Order XL I, Rule 23, of the Code of Civil Procedure, with directions to re-admit it under its original number in the register of pending cases and dispose of it according to law. The appellant will get the costs of this appeal including fees on the higher scale. Other costs will abide the event.