1. Those are two connected second appeals arising out of the same series of transactions. They may be disposed of by a single judgment, the facts in both cases being substantally the same. The respondent, Mohammad Masih-ul-lah Khan, who is the plaintiff in both suits, is the lambardar of a certain mahal. In that mahal there was a share of six annas belonging to one Rafaat Khan and a share of two annas belonging to Musammat Zohra Begam. At one time Zohra Begam was also in possession as sub-mortgagee of the six-annns shave belonging to Rafaat Khan. While thus in possession she leased out to the defendant-appellant, Ahmad Said Khan, the right to receive the profits of the entire share of eight annas, that is to say, of her own share of two annas plus Rafaat Khan's share of six annas. Subsequently Rafaat Khan executed a simple mortgage of his own six annas share to Ahmad Said Khan aforesaid, making it part of the covenant, that the existing usufructuary mortgage should be redeemed out of the consideration for the said simple mortgage. This was done, and inconsequence of this redemption the rights of Zohra Begam over Rafaat Khan's six-annas share terminated. Nevertheless Ahmad Said Khan continued to be recorded as lessee in possession of the entire eight-annas share. He brought suits for profits in the rent Court on the strength of this entry, and the matter was litigated up to this Court, terminating in a decision which will be found reported as Ahmad Said Khan v. Masi-ullah Khan 13 Ind. Cas. 975 : 9 A.L.J. 152 : 34 A. 250. This Court held that, inasmuch as the Revenue Records showed Ahmad Said Khan to be the person entitled, to receive the profits claimed by him during the years in suit, a decree must be passed in his favour. The suits now before us are brought in consequence of this decree. Muhammad Masih-ul-lah Khan claims that he is in a position to prove that the entries in the papers which showed Ahmad Said Khan as lease of the six-annas share belonging to Rafaat Khan, were incorrect. He seeks relief by way of a declaration to this effect, a further declaration that Ahmad Said Khan was not entitled to receive the profits decreed in his favour by the Kent Court, and also that the decrees obtained by Ahmad Said Khan are incapable of execution. With regard to the form of the reliefs claimed, it is perhaps open to argument that the last relief sought should rather have been a perpetual injunction restraining Ahmad Said Khan from executing those decrees, bat this is a matter of form rather than of substance, and in the view we take of the case as a whole it is not necessary for us to go into it. The Court of first instance dismissed the claim on various grounds, but it has been decreed by the learned District Judge in appeal. Coming to this Court in second appeal Ahmad Said Khan principally contends that the decision of the learned District Judge has been arrived at by excluding Important evidence tendered by him as defendant, and practically by preventing him from establishing the defence which he set up on the merits. When the usufructuary mortgage on Rafaat Khan's six-annas share was redeemed, the right of Ahmad Said Khan to continue in possession as a lessee undoubtedly terminated, but it was for the proprietor, that is to say, for Rafaat Khan, to take whatever steps were necessary in order to enforce his right to possession over his own share. Now the case for Ahmad Said Khan is that, so far from doing this, Rafaat Khan entered into an arrangement with him by which he was allowed to continue in possession as lessee for the unexpired portion of his lease, on condition that whatever sums he received from the lambardar on account of the profits of his share should be credited towards payment of the money due to him from Rafaat Khan on the simple mortgage. This is a defence which it was clearly open to Ahmad Said Khan to set up, and it appears to us that the learned District Judge has misconceived the nature of the defence and has excluded the evidence by which that defence is fairly proved.
2. We find that there has been a litigation between Rafaat Khan and Ahmad Said Khan in respect of the simple mortgage, which litigation terminated in a judgment and decree of this Court dated May 24th 1911. The result of that litigation was that Ahmad Said Khan was held to have been in possession and enjoyment of the profits of this six, annas share during the years in question in the present suit, and was made to account for the profits of the share to Rafaat Khan, that is to say, in the decree which was given to Ahmad Said Khan on his mortgage as against Rafaat Khan these profits were credited in part payment of the mortgage-debt. The judgment in question was not a judgment inter partes so far as the present suit is concerned and, therefore, the District Judge thought that it was altogether inadmissible. Now under Section 43 of the Indian Evidence Act a judgment not inter partes may be admissible if its existence is otherwise a fact in issue or a relevant fact under some other provision of the Indian Evidence Act in the present case Ahmad Said Khan's whole defence was the was left in possession as lessee by the only person who had a right to eject him, and further that he was made to account to that person for the very profits decreed in his favour by the Revenue Court in the decrees which it was the object of the present suit to set aside. The judgment in the suit between Ahmad Said Khan himself and Rafaat Khan was just as much relevant for the purpose of proving these facts as would have been a receipt in favour of Ahmad Said Khan signed by Rafaat Khan. It was positive evidence of the most conclusive kind that Ahmad Said Khan did actually pay those profits to Rafaat Khan, it seems to us on these grounds that the finding of the learned District Judge cannot be sustained, and that the Court of first instance was right in dismissing these suits.
3. It has been contended before us that, as a matter of fact, if further enquiries were made into the question in issue, it would be found that Masih-ul-lah Khan as lambardar has actually paid these profits, or some portion of them, to Rafaat Khan direct. This argument is sought to be based on certain passages in the judgment of the lower Courts in the litigation between Ahmad Said Khan and Masih-ul-lah Khan, which terminated in this Court's decree awarding Ahmad Said Khan the profits claimed by him, There is, however, on the record of this present suit no evidence whatever to show that Masih-ul-lah Khan really paid Rafaat Khan any profits on account of the years now in question. It seems to us highly improbable that he did so. According to the Revenue Records the person entitled to these profits was Ahmad Said Khan, and we should require cogent evidence to convince us that while the record stood thus, the lambardar went out of his way to pay the profits to Rafaat Khan. In any case if there has been dishonesty on the part of Rafaat Khan in recovering these profits, or some portion thereof, twice over, that is to say, once from the lambardar 'direct and again from Ahmad Said Khan, that is a matter which may be put right by a further litigation to which Rafaat Khan would be a necessary party. We are, therefore, of opinion that these appeals must prevail. We set aside the decree of the lower Appellate Court in each case and restore that of the Court of first instance. The plaintiff, must pay the defendant's costs in all Courts.