Rachhpal Singh, J.
1. These are two connected appeals arising out of a suit for settlement of accounts and profits. The plaintiffs and the defendants are co-sharers in Sitalpur. Ajudhia Prasad, Kamta Prasad and Anwar Singh, plaintiff's, instituted a suit in the trial Court against Chattar Singh and Ganga Prasad for profits under the provisions of Section 226, Agra Tenancy Act. Chattar Singh and Ganga Prasad are lambardars in the aforesaid village. The suit was decreed by the trial Court. Against that decree an appeal was preferred to the Court of the learned District Judge, who modified the decree of the trial Court and reduced the amount decreed by a certain sum of money. Both sides have preferred appeals against the decision of the learned District Judge. It may be stated here that the suit which has given rise to the two second appeals before us was tried along with another suit, in which one Banarsi Das was the plaintiff. In the present appeals we are not concerned with that suit. It may, however, be mentioned that the reasons for the decision of the suit before us are recorded by the learned Assistant Collector in his judgment, which he delivered in the case of Benarsi Das and which judgment forms part of the present record. The usual pleas which are generally taken in suits of profits and accounts were taken in the case before us. At this stage, however, it is not necessary to refer to any one of those pleas. The dispute between the parties relates to the profits of a cattle market said to have been started by Chattar Singh, one of the two lambardars of the village.
2. The plaintiffs in para. 5 of their plaint stated that a cattle market is held in the village from 1336 Fasli on the grove, which is held jointly by the co-sharers, but the plaintiffs have not been paid the income of their share, and they claim to be entitled to get a share out of the income from this cattle market. The defendant in para. 5 of the written statement stated that about 2i years ago ho had started, with the permission of the Collector, a cattle market on his own grove No. 735 at a considerable cost, and he denied the right of the plaintiffs to get any share in the income of this cattle market. One of the issues framed by the trial Court was whether the plaintiffs were entitled to get a share in the income from the cattle market held in plot No. 735. The learned Assistant Collector did not take into consideration the plea of Chhatar Singh to the effect that he had the right of a grove-holder in plot No. 735. This is a point which should have been considered. If it be found that Chhatar Singh, defendant, has the right of a grove-holder in plot No. 735, then it is not easy to understand on what ground the co-sharers in the village can claim any share in the profits of a cattle market which might be held in that grove. The position of a grove-holder, according to the Agra Tenancy Act, is analogous to that of a tenant. He has every 'right to make use of the grove, which he holds, in any manner he likes.
3. If he starts a cattle market in his grove and derives profits, the co-sharers in the village have no right whatsoever to a share in those profits. The learned Assistant Collector found that the cattle market is held not only on plot No. 735, but also on plot No. 734 and other adjoining fields, but held that there was no evidence before him to show which those plots were. At one place in his judgment the learned Assistant Collector says that:
The plaintiff is surely entitled to get his share of the bazaar income derived from the fields other than No. 735 in dispute, even if Chhatar Singh is ultimately adjudged to be the exclusive owner of the whole cattle market income derived from plot No. 735.
4. If that was his view, then he should have decided as to what portion of income should go exclusively to Chhatar Singh on the ground that he was the grove-holder of plot No. 735, and how the balance of the income should be divided between the various co-sharers. The learned District Judge has confirmed the findings of the learned Assistant Collector without going into the question referred to above. After hearing the learned Counsel appearing on both sides, we are of opinion that before these appeals can be finally disposed of, it is necessary to remand the case to the lower appellate Court. One of the questions which requires determination is whether the cattle market is held exclusively on plot No. 735, and whether that plot is held by Chhatar Singh, lam-bardar, as a grove-holder. If the finding on this issue be in the affirmative, then the plaintiffs' claim for a share in the profits of the cattle market must fail. The second question which requires determination in this case is to find out what are the plots in addition to No. 735 on which the cattle market is held.
5. The third question which is to be considered is whether the plaintiffs are entitled to a share in the income derived from this source, because some common land is being used for the purpose of the cattle market. The learned Assistant Collector in his judgment says:
There is no doubt that Chhatar Singh manages the market, but it is not clear that he does so in his individual capacity and not as a lambardar representing the whole co-parcenary body. A cattle market of a village is ordinarily the source of income of the whole co-parcenary body unless the lambardars prove their exclusive right to it.
6. At another place the learned Assistant Collector says:
I think the income from the cattle market is the village income and not the income of the lambardars alone unless they prove satisfactorily that it is exclusively their own.
7. The learned District Judge appears to agree with this view. He in his judgment says:
Plot No. 735 appertains to the zamindari and all the co-sharers have rights according to their shares in it. Consequently there is no reason why the lambardar, who is responsible for the management of the property and who-started a market in it, should appropriate all the profits himself, I agree with the finding of the lower Court and find the point against the appellant.
8. We wish to state that we find ourselves unable to agree with this proposition. It is true plot No. 735, which is a grove, appertains to a zamindari, but it does not follow that if the grove-holder holding that plot invests money in order to increase its income then other co-sharers in the village become entitled to get a share in it. We also emphatically disagree with the view that whenever a lambardar starts a cattle market or any other profitable venture of this nature, then there is a presumption that he does so for the benefit of the entire 'co-parcenary body.' In our opinion the presumption is all on the other side. Every co-sharer in a village held jointly has a right to take possession over any uncultivated piece of land, which is not cultivated by some other person. The right of the other co-sharers is to insist that he should pay rent to the proprietary body through the lambardar like any other tenant. But there is nothing in the provisions of the Agra Tenancy Act, under which co-sharers can insist that the entire income derived by the co-sharer, taking possession over a piece of land, should be divided between them. The position is exactly the same when a vacant piece of land is utilized by a co-sharer who happens to be a lambardar of the village. If he takes possession over an unoccupied piece of land and starts a cattle market or any industry of that kind by investing money, then he does so for his own benefit. If a co-sharer in a village opens an indigo factory or any other factory on a vacant piece of joint land it cannot possibly be contended that he started the factory for the benefit, to use the words of the learned Assistant Collector, 'of all the co-parcenary body.' There appears to be no reason why such a presumption should be made when the industry or a new venture is started by a co-sharer, who occupies the position of a lambardar. There may be cases in which a co-sharer after taking possession over a piece of land would invest large sums of money with the result that an ordinary piece of land, which in other hands would not yield an income, say of Rs. 10 a year, would yield Rs. 500 yearly as profit. In a case like this it would be unreasonable to hold that all the co-sharers of the village are entitled to get a share in the new venture started by a co-sharer. The learned Assistant Collector in his judgment says:
Chhatar Singh appears to have given no notice of his exclusive right to the cattle market before starting it. As a lambardar he started the market and as such its income should go rate-ably to all the co-sharers.
9. This, in our opinion, is a not correct view. If a co-sharer in a village takes possession over a joint piece of land and utilizes it for his own purposes, then it can never be said that as he had given no notice that he was going to use the land exclusively for his own purpose, so the crop of that land would be liable to be distributed rateably among the other co-sharers. The position of the co-sharer, lambardar is exactly the same. We may be permitted to make a reference to some of the observations made by their Lordships of the Privy Council in Lachmeswar Singh v. Manowar Hossein,(1892) 19 Cal 253 at pp. 263, 264, and 265, 266, which are as follows:
For the parties are co-owners, and the defendant has made use of the joint property in a way quite consistent with the continuance of the joint ownership and possession. He has not excluded any co-sharer. It is not alleged that he has used the river for passage in any such way as to interfere with the passage of other people. It is not alleged that, even in the time of the bridge, there has been any obstruction at the landing places. It is not alleged that the defendant's proceedings have prevented anyone else from setting up a boat for himself or his men, or even from carrying strangers for payment. So far from inflicting any damage upon the joint owners, the defendant has supplied them gratuitously with accommodation for passage. All that is complained of is that he has expended money in a certain use of the joint property, and has thereby reaped a profit for himself. But property does not cease to be joint merely because it is used so as to produce more to one of the owners who has incurred expenditure or risk for that purpose.
Now in this case the High Court has not granted any injunction, but it has made a declaration with respect to the possession and profits of the ferry, and has directed an account of the profits accordingly. But if the defendant's use of the landing places and the river is consistent with joint possession, why should the plaintiffs have any of the profits? They have not earned any, and none have been earned by the exclusion of them from possession, as was done by the Watsons in the case cited Watson & Co. v. Ramchand Dutt (1891) 18 Cal 10. By the defendant's acts they have lost nothing, and have received some substantial convenience. It will be time enough to give them remedies against him when he encroaches on their enjoyment.
10. That was a suit in which one of the co-sharers owning a two-anna share had started a ferry on joint property which was yielding a considerable amount of income. The plaintiffs in that case were the owners of the remaining fourteen-anna share in the village. They instituted a suit for profits and claimed that as the ferry was run on the joint property owned by them and the defendants, so they were entitled to a share in the profits. Their Lordships of the Privy Council repelled that contention for the reasons mentioned above. In our opinion, those reasons are applicable to the case before us. It appears to us that a co-sharer is perfectly entitled to invest money in a piece of land in a village, and would be entitled to all the profits derived from that source, subject to this limitation that he would be liable for;payment of the rent of the land used by him like any other co-sharer or tenant in that village. But there can be no law under which the co-sharers in the village can become entitled to share in the income, which a co-sharer may get by investing his money or through his own labour and exertion.
11. For the reasons given above it appears to us that the Courts below did not approach the case in the manner in which it should have been approached. They were not warranted in making a pre-sumption, as they have done, that as the market was started by the lambardar, so he must have started it for the benefit of all the co-sharers. It will be seen from a perusal of the plaint that no such case was set up by the plaintiffs themselves. In the circumstances, we are of opinion, that the learned Judges of the Courts below were not right in starting with a presumption in favour of the plaintiffs. It is because of this that we consider it necessary to remand the case to the lower appellate Court for fresh findings, which should be given after keeping in view the observations which we have made in this case. We frame the following additional issues: 1. (a) 'Whether plot No. 735 is held by Chhatar Singh, defendant as a grove-holder as alleged by him in para. 5 of the written statement (b) Is the cattle market held on the land of this grove only? (c) If the market is held on any other plots in addition to No. 735, then what are those plots? 2. (a) Whether Chhatar Singh, lambardar, started the cattle market for the benefit of all the co-sharers and are therefore the plaintiffs entitled to claim a share in the profits of the cattle market? or (b) did Chhatar Singh start the cattle market for his own benefit only as alleged by him?
12. We remand the case to the lower appellate Court with directions to give the parties an opportunity to produce further evidence, which they may wish to and then to give its finding on the above mentioned issues, which should be returned to this Court within a period of four months if convenient. On the receipt of the findings of the lower appellate Court the usual 10 days' time will be allowed to both parties for filing objections. The connected second appeal No. 903 of 1933, will remain pending, and will be taken up for disposal along with this second appeal, No. 731 of 1933, after the findings of the lower appellate Court are received.