1. This is a defendant's second appeal and arises from a suit for profits, under Section 226, Agra Tenancy Act. The parties are mortgagees in possession under a deed of 30th July 1923, executed by Fateh Singh and others. Both the lower Courts have decreed the plaintiffs' claim. In second appeal before us it was contended that the suit is not one cognizable by a Revenue Court, as the parties, who are admittedly usufructuary mortgagees are not co-sharers within the meaning of Section 226, Agra Tenancy Act.
2. It appears that the parties to this suit had obtained a decree for Rupees 40,000 against the mortgagors Fateh Singh and others. The latter executed the mortgage-deed already referred to for Rs. 16,000 part of the decretal amount in respect of village Sowara, for which the profits are claimed. The deed expressly states that the plaintiffs are to be regarded as mortgagees in possession to the extent of half and the defendants are to be regarded as mortgagees in possession to the extent of the other half. There is an obscure clause in the deed which presented some difficulty to the mind of the learned District Judge but we do not think it to be desirable to interpret that clause, as our decision one way, or the other may prejudice the case of the plaintiffs or the defendants which may hereafter arise in relation to their claims as decree-holders nor is it necessary to interpret that clause for the purposes of this appeal.
3. The plaintiffs are recorded as co-sharers of half of the mahal and the defendants are recorded as co-sharers of the other half. One of the defendants is admittedly a lambardar and has made collections. If a usufructuary, mortgagee is a 'co-sharer' within the meaning of Section 226 Agra Tenancy Act, there can be no doubt that a suit for; profits by either of them against the; other is maintainable in the Revenue Court; and if such a suit as maintainable, the plaintiffs are entitled to recover profits to the extent of half in terms of the mortgage deed to which, both the defendants and the mortgagors were parties.
4. The word 'co-sharer' is nowhere defined in the Agra Tenancy Act and; must be taken in its etymological, sense. To our mind it is perfectly, clear that a person who is entitled to a share of the profits of a mahal is a co-sharer for the purposes of a suit under Section 226, Agra Tenancy Act. A usufructuary mortgagee, is one who is entitled to the usufruct of the share mortgaged to him. Where both the lambardar and the co-sharers suing for profits are mortgagees in possession, each is entitled to a share in in the profits of the mahal held by them as mortgagees and they are therefore co-sharers. This view has prevailed in this High Court for a long time. It was held in Lachman Singh v. Ghasi (1893) 15 All. 137, that a mortgagee, in possession is a co-sharer whom a lambairdar can sue in a Revenue Court for recovery of his share of revenue. In Lachman Pande v. Tirbeni Sahu 1924 All. 719. it was held by a Bench of this Court that a usufructuary mortgagee of a co-sharer in possession of the share is entitled to maintain a suit against the lambardar for profits. More recently it was held in Muhammad Qamar Shah v. Muhammad Salamat Ali Khan 1933 All. 407 that:
We hold both on principle and authority that a mortgagee in possession is a co-sharer within the meaning of Section 226, Agra Tenancy Act,
5. It was next contended on behalf of the appellant that the rights of the parties to this case under the decree outstanding against the mortgagor are not equal and that as part of the profits is to be set off against the interest due under the decree, the parties should not be considered to be entitled to profits in equal shares. We think that effect cannot be given to this contention, even if it is well founded. as the stipulation contained in the mortgage deed which represents a contract between the mortgagees inter se and also between the mortgagees on the one side and the mortgagors on the other is dear. Whatever may be the rights of the parties as regards the decree against the mortgagors part of which has been satisfied by the execution of the mortgage deed in question there is no doubt that the village Sowara was mortgaged with possession to the parties who were expressly given equal rights as regards possession and enjoyment thereof. It will be open to the parties to take into account the profits received by one or the other of them when their rights under the decree are to be finally adjusted. So far as the simple remedy of one co-sharer to receive profits from the lambardar is concerned, the entries in the khewat and the stipulations contained in the mortgage deed which are to regulate their relationship as co-sharers must be given effect to.
6. The conclusion arrived at by the learned District Judge is the same as herein indicated, though his reasons are somewhat brief and not identical in all respects with our own. The resuit is the appeal fails and is dismissed with Cost.