1. This appeal arises out of a suit brought by the respondent against the appellant for his share of the profits of a mahal for the years 1318, 1319 and 1320 Fasli, The respondent in his plaint described the appellant as a co-sharer and the suit as one brought under Section 165 of the Tenancy Act, which provides for a suit by a co-sharer against another co-sharer for a settlement of accounts and for his share of the profits of a mahal. The appellant pleaded that he was the lambardar of the mahal and that the suit should have been brought against him not under Section 165, but under Section 164 of the Tenancy Act. The Assistant Collector fixed issues on the questions whether the appellant was a lambardar of the mahal and whether, if he was a lambardar, the suit could be maintained under Section 165 of the Act. He found that the appellant was a lambardar and that the suit could not be maintained against him under Section 165 of the Tenancy Act. He gave the respondent an opportunity of amending his plaint by describing the appellant as lambardar and the suit as one brought under Section 164. The respondent declined to amend his plaint and the suit was dismissed. The respondent appealed. The District Judge reversed the decision of the Assistant Collector and remanded the suit for trial on the merits, on the ground that the appellant had not by becoming a lambardar ceased to be a co-sharer, and there was no reason why the respondent should not have framed his suit under Section 165. The learned Judge was of opinion that the description of the suit was a minor matter and that the suit should have been tried out. In this appeal it is contended that a suit under Section 165 is a suit of a different description from a suit under Section 164 and we were referred to the decision of this Court in Chunno Lal v. Parbhu Dial 6 Ind Cas. 809 : 7 A.L.J. 526. Where a defendant is a lambardar, as in a suit under Section 164, he is entitled to deduct his haq-lambardari and the village and other expenses; whereas a co-sharer defendant in a suit under Section 165 is not enticed to such deductions. The appellant in the present case pleaded and proved that he was a lambardar and on that account entitled to deduct haq-lambardari and village and other expenses. That was merely a question of account which the Assistant Collector could have disposed of. The respondent was perhaps badly advised in declining to meet the Assistant Collector's wishes by amending his plaint. But as an amendment was not really necessary, it seems to us that the Assistant Collector was wrong in dismissing the suit. He ought to have tried out the suit and given the appellant credit for the haq-lambardari and village and other expenses. It is possible that the respondent was afraid that if he amended the plaint, he would be told that the suit had become one of a different character and, therefore, must be dismissed. The result might be that the respondent's claim for profits for one year would be barred by limitation. In my opinion the District Judge was right in remanding this case for trial on the merits and I would dismiss this appeal with costs.
2. Piggott, J.--I concur.
3. By the Court.--The order of the Court is that this appeal is dismissed with Costs.