Iqbal Ahmad, J.
1. This is a defendant's appeal and arises out of a suit for profits (from 1327 to 1329 faslis). filed in the revenue Court under Section 165, Agra Tenancy Act (2 of 1901).
2. The plaintiffs own a one-third share and the defendants a two-thirds share in the patti with respect to which profits were claimed by the plaintiffs. The plaintiffs' case was that, by a mutual arrangement the parties collected rent from every tenant in the patti in proportion to their respective shares, and that both the parties had made collections in (excess of their shares from certain tenants in the years in question. The plaintiffs claimed a decree for their share of the rent that had been realised by the defendant from certain tenants, after deducting therefrom the rent collected by the plaintiffs in excess of their share from other tenants. The plaintiffs further maintained that in the settlement of accounts the land in cultivation of the parties should be taken into account. The suit was resisted by the defendant inter alia on the grounds that the plaintiffs themselves, having, on their own showing, collected rent from certain tenants in excess of their one-third share, in contravention of the arrangement alleged by them, the suit should have been framed as an ordinary suit under Section 165, Tenancy Act, embracing the entire patti, and that the suit as framed was not maintainable, and that the defendant had not collected more than his share of the profits and as such the plaintiffs were not entitled to a decree. The accuracy of the accounts appended to the plaint was also denied by the defendant.
3. The trial Court held that
the arrangement for the collection of the rent, hence is that each party is to collect rent in proportion of its respective shares from each tenant.
4. It also found that the defendant realized Rs. 174-0-6 of the plaintiffs' share of rent from certain tenants, and that the plaintiffs in their turn realized Rs. 56-10-9 of the defendant's share of rent from some other tenants, and thus a sum of Rs. 117-5-9 was due to the plaintiffs. It deducted from that amount the sum of Rs. 12-14-0 on account of khudkasht land in possession of the plaintiffs in excess of their share in the patti, and also a sum of Rs. 36-10-8 on account of plot 1945 that was in the plaintiffs' possession and credited the plaintiffs with a further sum of Rs. 16-15-3 on account of a decree for arrears of rent held by the defendant against a certain tenant. Thus the plaintiffs were, according to the findings of the trial Court, entitled to a decree for a sum of Rs. 84-2-4, but by mistake in calculation that Court passed a decree in the plaintiffs' favour for a sum of Rs. 94-2-4.
5. The lower appellate Court has found that
the method of collections in this village is that either party is entitled to collect his proportion of the rent of each tenant
and has further held that the method of calculation adopted, and the calculations made, by the trial Court were correct, and has accordingly affirmed the decree of that Court.
6. It appears that the trial Court, in holding that the defendant had realized a sum of Rs. 174-0-6 of the plaintiffs' share of rent from certain tenants, had taken into account the rent paid by certain shikmi tenants of the sir land belonging to the defendant, and the learned Counsel for the appellant argues that the rent of shikmi tenants should not have been taken into account, inasmuch as it was not permissible to presume that the arrangement, by which the parties were entitled to collect their respective shares of rent from each tenant, also applied to the case of shikmi tenants of sir land, and that even if the sir lands exclusively belonging to the defendant were to be taken into account, the rent of those sir lands should have been assessed, not with reference to the rent actually paid by the sub-tenants, but with reference to the amount of rent noted in the revenue papers as against the sir plots of the defendant.
7. It is argued by the learned Counsel that the mode of calculation of the rent of sir land adopted by the Courts below is highly detrimental to his sir rights because it practically amounts to holding that he has no preferential right over the plaintiffs with reference to the plots in which he has sir rights. I am unable to agree with the contention of the learned Counsel for the appellant. It has been rightly pointed out by the lower appellate Court that, in the absence of anything to the contrary, it should be presumed that the abovementioned arrangement with respect to collection of rent also applied to shikmi tenants of sir land. In calculating profits of a mahal, sir and khudkasht lands held by particular cosharers have to be taken into account [vide Ganga Singh v. Ram Sarup  38 All. 223] and the rent of sir land held by a co-sharer is to be assessed at a proper rate and not with reference to the farzi rate of rent entered in the revenue papers: vide Genda Lal v. Rustum Singh  7 A.L.J. 90. I am foot-prepared to hold that in the present case the Courts below were not right in assuming that the rent-actually paid by the sub-tenants of sir plots was the proper rent for those plots. It may be that the defendant is entitled to himself cultivate his sir plots, and when he does so, the plaintiffs will only be entitled to have the rent of the sir plots actually cultivated by the defendant assessed at a proper rate, but when those plots are in occupation of sub-tenants, and there is no other material upon the record from which the proper rent of those plots can be determined, the Court is justified in assuming that the rent paid by the subtenants is the proper rent for those plots.
8. It was further argued by the learned Counsel that the plaintiffs themselves having made collections contrary to the mutual arrangement referred to above, the suit should have been framed as an ordinary suit for profits embracing the entire patti, and that the suit as framed was not maintainable. This point does not appear to have been argued in the lower appellate Court and this by itself is a ground for not entertaining the point in second appeal. Moreover, notwithstanding the fact that the plaintiffs themselves had made collections contrary to the mutual arrangement referred to above, they were entitled to a decree as against the defendant for the amount of their share of the rent that the defendant had realized from certain tenants. Each party being entitled to collect his share of the rent from the tenants in the patti, no party is entitled to collect from any tenant rent in excess of his share.
9. The last point argued by the learned Counsel is that the sum of Rs. 16-5-3 had been wrongly allowed to the plaintiffs on account of a decree for arrears of rent held by the defendant. It is argued that the defendant was under no obligation to realize the decretal amount by executing his decree, and as such the plaintiffs should not have been, in the absence of a finding to the effect that the defendant had realized the decretal amount, credited with that amount. The defendant having obtained a decree for arrears of rent against a tenant the plaintiffs were justified in asking that in settlement of accounts their share of the decretal amount should be taken into account. As already stated the trial Court has, because of a miscalculation passed a decree in the plaintiff's favour for a sum of Rs. 94-5-4 in lieu of a decree for Rs. 84-2-4.
10. Accordingly I allow the appeal to this extent that I vary the decree of the Court below by granting to the plaintiffs a decree for Rs. 81-2-4 along with the interest granted by the 'decree of the trial Court, with proportionate costs of the Court below. As the respondents are not represented in this Court, I make no order as to the costs of this appeal.