JUDGMENT Pramada Charan Banerji and Wallach, JJ.
1. This appeal arises out of a suit in which the plaintiff claimed that he was entitled to a half share of a certain cultivatory holding. He alleged that he and the defendant were each-entitled to a half share of the holding and that the defendant had taken possession of a larger share than that to which he was entitled. The plaintiff, therefore, claimed a declaration that he was entitled to a half share. He also claimed possession and mesne profits. The court below has granted him a decree declaring him entitled to a half share, but, in view of [the provisions of Section 32 of the Agra Tenancy Act, has [refused to grant him possession of a half share, as this might amount to a partition of the holding. A decree for mesne profits has also been granted. In this appeal, which has been preferred on behalf of the defendant, it is not urged that the declaratory decree passed in the plaintiff's favour is not a proper decree, but it is contended that a decree for mesne profits should not have been granted in a suit for a declaratory decree. We think that this contention is without force. According to the findings of the courts below, the defendant was in possession of a larger share than that to which he was entitled, and he appropriated the profits of that share, thereby excluding the plaintiff from such profits as he was entitled to get from the property. The plaintiff has the right to recover from the defendant the profits which the defendant, who was wrongfully in possession, had appropriated; that is to say, he has the right to get mesne profits as defined in the Code of Civil Procedure. 'There is no reason why the plaintiff should not be compensated for the loss of the profits which the defendant, has appropriated. Such profits could not have been claimed in the Revenue Court under any of the provisions of the Agra Tenancy Act The parties are not co-sharers in the zamindari, but are co-sharers in a cultivatory holding only. In our opinion there is no bar to a suit of this description. We see no reason to differ from the view taken in Ashiq Husain v. Asghari Begam (1907) I.L.R. 30 All. 90, to which one of us was a party. We dismiss the appeal with costs.