1. This appeal arises in a suit for profits brought by a co-sharer against another co-sharer under the provisions of Section 165 of the Agra Tenancy Act. The plaintiff stated in his plaint that the defendant had realised the whole of the rents for the years in question but in order to evade payment of profits, he had in bad faith been showing in the papers that arrears were due by tenants. This was denied by the defendant. The Courts below framed no issue on the point and did not determine whether the plaintiff's allegation was true or false. They were of opinion that the defendant had neglected to collect the rents and accordingly based the account of profits on the gross rental. They relied upon the analogy of Section 164 (2) of the Act. It was, however, held by a Divisional Bench of this Court in Abdul Rashid v. Abdul Latif A.W.N. 1908 p. 68 that in a suit under Section 165 only the actual collections made by the defendant are to be taken into account in determining the amount of profits due and not what might have been collected, but for gross neglect or misconduct. I doubt whether it was the intention of the Legislature enacting Sections 164 and 165, to make a difference between the case of a lambardar and that of a co-sharer making collections. But Sub-section (2) of Section 164 was not re-enacted in Section 165 and in the latter section no reference is made to it. Whatever may have been the intention of the Legislature I am bound to follow the decision of the Division Bench to which I have referred. The plaintiff is, therefore, entitled to his share of such amounts as were actually collected by the defendant less revenue and other expenses. As the amount due to the plaintiff on the basis of actual collections has not been determined by the Court below, I refer the following issues to that Court under the provisions of Order 41 Rule 25 of the Code of Civil Procedure.
(1) Did the defendant collect the whole of the rents for the years in question from the tenants, or how much?
(2) What is the plaintiff's share of profits having regard to the amount of rent actually collected by the defendant?.
2. The Court will take such additional evidence as may be necessary. On receipt of its finding ten days will be allowed for filing objections.