1. This is an appeal in a. suit for profits under Section 165 of the Tenancy: Act. The plaintiffs are recorded in the Revenue papers as full owners of the store in respect of which they sued for profits. According to the defendants the plaintiffs merely owned the equity of redemption and the defendants are usufructuary mortgagees of the share. The entry, as it stands, was admittedly made by mistake. The Revenue Court ordered mutation to be mace in the plaintiffs' favour of the equity of redemption only. This was in the year 1917. By some mistake the order was not carried out and the entry was mace as stated above and has so remained down to the present time. Another curious complication In the case is that, according to the District Judge, the order of the Revenue Court was not in accordance with the Civil Court decision on which it was based and the learned Judge was of opinion that the entry though technically wrong was really in accordance with the rights of the parties. The learned Assistant Collector dismissed the suit. The learned District Judge, following the Full Bench ruling in Durga Parshad v. Hajari Singh 11 Ind. Cas. 116 : 33 A. 799 : 8 A.L.J.1025 (F.B.), held that the entry of the plaintiffs' name in the Revenue Records raised a conclusive presumption in their favour and accordingly decreed the suit. In appeal by the defendants two points are raised.
1. That no appeal lay to the Court below as no question of proprietary right was raised within the meaning of Section 177(e) and the value of the suit was below Rs, 100.
(2) That the Court below should have followed the mutation order in preference to the actual entry in the papers.
2. The first point is governed by the ruling In Kalyan Mal v. Samad 18 Ind. Cas. 244 : 35 A. 157 : 11 A.L.J. 118 which hag been followed in subsequent cases. There the question whether the defendant was n tenant or mortgagee of proprietary right was held to amount to a question of proprietary right. Here the question is whether of the defendants are mortgagees of proprietary right or have no right at all in the share in dispute. The Cases are, therefore, indistinguishable in principle and following the ruling cited, I hold that an appeal lay.
3. On the second point the learned District Judge is clearly right. The presumption is based on the entry in the records and it is impossible to accept an order which was never carried out in face of the entry in the papers which has stood unaltered for three years before the suit. The appellant has produced in this Court a certified copy of an order passed by the Collector directing the papers to be corrected in accordance, with the original mutation order of 1917. This order was passed oh 9th December 1922 long after the decision of the Court below and there is nothing to show whether it has yet been carried out, 'Even; however, if it has been carried out it is impossible in face of the ruling in Lachman Prasad v. Shitaba Kunwar 59 Ind. Cas. 639 : 43 A. 177 : 18 A.L.T. 1008 : 2 U.P.L.R. (A.) 386 to give effect to it in this suit. That ruling laws down that where the plaintiff in a suit for profits was a recorded co-sharer at the date of the institution of the suit, his right to a decree will not betaken away by an order subsequently passed by the Revenue Court removing his name from the khewat even though the decrees based on a finding that the original entry was wrong. For these reasons I am unable to accept the appeal and I accordingly dismiss it. As the case is one of hardship to the appellants, I make no order as to costs in this Court.