1. The plaintiffs appellants purchased certain specific plots of land in the village from the ancestor of the respondents. In the deed of sole the land sold is described as the khud kasht of the vendor.
2. The vendor, therefore, would automatically become the ex proprietary tenant of these plots and possession, therefore, was not given to the plaintiffs. The plaintiffs brought this suit against all the co-sharers including the lambardar, for profits for the three preceding years, under Section 165 of the Agra Tenancy Act. Various objections were raised and the Trial Court dismissed the suit as against all the other defendants, but decreed the suit for Rs. 177-5-10 against the present respondents as representing the plaintiffs' share of profits.
3. On appeal, the learned First Additional District Judge of Aligarh held that the suit was misconceived, that it was not a suit under Section 165 of the Agra Tenancy Act but was really a suit for rent, and as such, could not be brought until the rent had been assessed by the Collector.
4. The plaintiffs come here in seconds appeal and it is argued that the lower Court is wrong in holding that Section 165 does not apply. It seems to me quite clear that Section 165 has no application whatsoever. The only claim which the plaints iris had against the respondents was to recover rent due to them as ex-proprietary tenants. In reality this was the way in which the First Court treated the suit. It came to the conclusion that the proper rent should be something less than what appears to have been agreed upon, between the parties in the sale-deed; having regard to the prevailing rates in the neighbourhood and it was on that basis that it gave the plaintiffs their decree although it described it as their share of profits. It seems to me that the suit was entirely misconceived and, did not lie at all against the other co-sharers; it should have been brought simply against the respondents for rent. But having regard to Section 10, Clause (5), of the Agra Tenancy Act and Section 36 of the I and Revenue Act, it seems to me that as a preliminary step to such a suit, it was necessary first to have the rent assessed by the Collector. In my opinion the appeal fails and is dismissed with costs, including in this Court: fees on the higher scale.