1. This is an appeal by the plaintiff whose suit has been dismissed by the lower appellate Court. The facts are that he brought a suit for profits against Thakurain Dan Kuer for the years 1332, 1333 and 1334 fasli on the allegation that he the plaintiff and Thaikuir Drigpal Singh, the husband of Thairkurain Dan Kuer, were joint usufructuary mortgagees of certain property, but Drigpal Singh, realised the entire profits during his lifetime and his widow realised the rest of the profits after the death of Drigpal Singh during the years in suit.
2. It was pleaded by the defendant, Thakurain Dan Kuer, that the plaintiff, Ewaz Singh, was not entitled to any portion of the mortgagee rights although his name was included as a mortgagee. The suit was brought in the Revenue Court but upon this plea being raised by the defendant the Revenue Court remitted an issue to the civil Court under the provisions of Section 271, Agra Tenancy Act, Local Act 3 of 1926. The civil Court decided in favour of the right of the plaintiff and the Revenue Court accepting that finding proceeded to determine the plaintiff's share of the profits and decreed the suit for a sum of Rs. 517, with interest and proportionate costs. The defendant went in appeal to the learned District Judge and under the provisions of Section 271, Sub-section 4, Clause (a) the issue decided by the learned Subordinate Judge and accepted by the Revenue Court became appealable before the District Judge and the lower appellate Court proceeded to discuss the evidence on the point. It came to the conclusion. that:
The entire consideration of the mortgage was advanced by Drigpal Singh and not even a Small portion of it was paid by Ewaz Singh, the respondents.
3. It therefore held that the plaintiff had no proprietary interest in the mortgagee rights and dismissed the plaintiff's suit. In second appeal it is contended before me that as the plaintiff's name was recorded as a co-sharer, there was an irrebutable presumption in favour of the plaintiff so far as the Revenue Court was concerned, and reliance was placed on certain cases which proceeded upon a consideration of Section 201, Clause 3, of the former Tenancy Act. There is no force in this contention because under the altered state of law, as is to be found in the provisions of Section 271, Agra Tenancy Act, there is no irrebuttable presumption in favour of the plaintiff and the rulings relied on by learned counsel for the appellant are no longer good law. Section 271 is quite clear and when a question of proprietary title is raised before a Reveille Court, the proper procedure is to remit an issue to the civil Court and the finding of the civil Court will be binding on the Revenue Court but not on the appellate Court. The finding of the lower appellate Court is a finding of fact and cannot be questioned in second appeal. I dismiss this appeal with costs.