1. This is a Letters Patent Appeal brought by the plaintiffs against a decree of a learned Judge of this Court dismissing the appeal of the plaintiff against the decision of the lower Appellate Court. The plaintiff sued defendant No. 1 his uncle for profits valued at Rs. 120 12 0 per annum under Section 165, Act II of 1901 as a co-sharer who had collected in excess his share of profits.
2. The basis of the claim is that one Bindeshri had four sons and the plaintiffs represented one of the sons and are the owners of a quarter share in patti of Bind-eshri and defendant, No. 1. Pancham is another son of Bindeshri and also the owner of a quarter share. In addition to ownership of a quarter share Pancham is recorded as sole occupancy tenant of 8 bighas 1 biswa in this patti No. 513-A at a rental of Rs. 4-4-9. The plaint claims that the annual profit should be Rs. 30 per bigha and, therefore, that a half share of the annual profits of the occupancy holding valued at Rs. 120-12-0 should come to the plaintiff.
3. The case put forward in Letters Patent Appeal for the plaintiff is that Bindeshri the common ancestor was originally an occupancy tenant and subsequently he acquired the zemindari rights in the whole patti and, therefore, there was a merger of his occupancy rights with his zemindari rights, and that the 8 bighas 1 biswa cannot be held by Pancham as occupancy tenure but as s khudkasht. No such case was put forward in the plaint or before the lower Courts and accordingly the defendant has not been called on to meet such a case, nor has the plaintiff put on the record evidence in support of such a case.
4. Under these circumstances, we consider that the plaintiff cannot be allowed to make out a new case in Letters Patent Appeal. There is nothing inconsistent per se in a co-sharer being also an occupancy tenant in the patti or mahal in which he is a co-sharer. Accordingly we dismiss this Letters Patent Appeal with costs.