JUDGMENT Sulaiman, Ag. C.J.
1. This is a defendant's appeal arising out of a suit for profits by a cosharer against the lambardar.
2. Kunwar Abdul Latif Khan had dedicated all his property under a deed of wakf while he was suffering from marzulmaut. He appointed the present plaintiff as the trustee, but after his-death the heirs did not accept the wakf and took possession of their respective-shares in the estate. To this the present plaintiff consented and he did not at first assert his rights as a trustee. The names-of all the heirs were entered in the revenue papers against their respective legal shares, and the name of the present plaintiff was not entered as the trustee.
3. Some years afterwards the present plaintiff instituted a civil suit against the heirs of Kunwar Abdul Latif Khan including the present defendant Kunwar Abdul Jalil Khan. In the plaint he admitted that the heirs did not deliver possession of the property to the plaintiff as muttawali and they were holding the property as trespassers. He asked to be put in possession of the entire property and to be awarded mesne profits for three years before the suit, mesne profits during the pendency of the suit as well as future mesne profits up to the date of the delivery of possession.
4. The civil Court held that the wakf having been made in marzulmaut was valid to the extent of one-third only. It gave a decree for one-third of the estate of Abdul Latif Khan excluding the property which had belonged to the other members of his family. As to the question of mesne profits the Court came to the conclusion that inasmuch as the plaintiff had consented to the defendants entering into possession as legal heirs of Abdul Latif Khan, their possession was not unlawful or wrongful and that the plaintiff having in very clear terms renounced the wakf and consented to the mutation in favour of the heirs; and indeed as lambardar having himself paid profits to such heirs it did not lie in his mouth to say that the defendant's possession was wrongful. The Court accordingly held that the plaintiff was not entitled to get any mesne profits. The suit for possession was decreed and the rest of the claim was dismissed.
5. On appeal the judgment and the decree of the Subordinate Judge with slight modification with which we are not concerned, were upheld by the High Court. In fact it does not even appear that the plaintiff appealed to the High Court on the question of the mesne profits at all.
6. The decree of the first Court was passed on 9th August 1919, and was substantially affirmed by the High Court on 21st April 1922. Formal delivery of possession of the property was taken by the plaintiff against the heirs of Kunwar Abdul Latif Khan on 22nd February 1924. The plaintiff, trustee, then brought a suit for profits in the Revenue Court for the years 1329, 1330 and 1331, Fasli against the defendant lambardar who is only one of the heirs of Kunwar Abdul Latif Khan. This period corresponds to 1st July 1922 to 30th June 1925. It is thus clear that the period covers a part of the period which was subsequent to the passing of the High Court's decree but previous to the delivery of possession.
7. It may also be noted that the plaintiff brought suits for profits for this very period in respect of some other villages against the same -defendant and got decrees from the Revenue Court. In one of such cases Mr. Allsop in 1926 held that the plaintiff was entitled to his share of the profits because the plaintiff became a cosharer after the passing of the decree of the Subordinate Judge on 9th August 1919, although formal possession in accordance with the High Court's decree was not given till 22nd February 1924.
8. In the present suit the Court below framed several issues, issue 2 being:
Is the plaint is entitled to claim profits for the years prior to Rabi 1830 Fasli?
9. The learned Assistant Collector came to the conclusion that although the dakhalnama was dated 22nd February 1924, inasmuch as the original civil Court had decreed the claim on 9th August 1919 the plaintiff was therefore in possession as a cosharer during the years in suit.
10. He further held that the judgment of Mr. Allsop operated as res judicata with regard to this issue. His conclusion was that the issue should be decided in the affirmative.
11. In his grounds of appeal before us the point is taken that the plaintiff-respondent was never in possession of the property in suit in the years 1329 Fasli and Kharif 1330 Fasli, and the Court is wrong in decreeing the profits for those years.
12. The learned advocate for the defendant contends that the refusal of the civil Court to grant future mesne profits up to the date of the delivery of possession operates as res judicata against the plaintiff. The learned advocate for the plaintiff while disputing this contention, further urges that the later judgment of Mr. Allsop operates as res judicata in favour of his client.
13. Taking up the question of the civil Court's judgment operating as res judicata we find that in Ram Dayaly. Madan Mohan Lal [1899] 21 All. 425 a Full Bench of this High Court held that where a suit had been brought for possession of immovable property and for mesne profits both before and after suit the mere omission of the Court to adjudicate upon the claim for future mesne profits would not by reason of the explanation to the old Section 13 operate as a bar to a subsequent suit for mesne profits accruing due after the institution of the former suit. In that case also the decree alter awarding possession to the plaintiff and awarding mesne profits up to the date of the suit stated : "The rest of the claim is dismissed." The learned Judges considered that this expression at first sight suggested that the dismissal expressly referred to the claim for future mesne profits, in which case the prayer for such profits would of course have been expressly refused but concluded that reading the decree along with the judgment it was clear that for some unexplained reason the court was not dealing with the claim for future mesne profits and it either overlooked that claim or purposely refrained from dealing with it. It held that having regard to the express language of Section '244 and the discretionary power of the Court under Section 211, Civil P.C, the silence of the decree was not to be deemed a refusal and that a separate suit would lie. This case was followed by a Full Bench of the Madras High Court in Ddraisiuami v. Subramania [1918] 41 Mad. 188 which arose under the new Act. Similarly a Bench of this High Court in Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan [1918] 40 All. 292 came to the conclusion that the omission from the new Section 47 of the clause in the old Section 244 did not make any material difference, and that the omission to grant future mesne profits would not bar a second suit.
14. We do not take these cases to lay down that where the civil Court in express I terms holds that the plaintiff is not entitled to future mesne profits and dismisses the claim for it, a second suit for the same amount would still lie. These cases appear merely to lay down that as the decree does not grant future mesne profits and the judgment indicates that the Court did not apply its mind to the question and merely omitted to discuss it, a second suit is not barred.
15. Order 2, Rule 4 allows a plaintiff to join a claim for mesne profits with a claim for recovery of immovable property. Order 20, Rule 12 gives a discretion to the Court to pass a decree directing an enquiry as to mesne profits from the institution of the suit until the delivery of possession. The inquiry is discretionary. It follows that where the judgment does not expressly say anything about future mesne profits, it cannot be clear whether the Court declined to exercise its discretion to direct an inquiry into pendente lite and future mesne profits or it held that the plaintiff was disentitled to get such profits. If the Court merely declines to exercise its discretion then the second suit for mesne profits which have accrued since then cannot possibly be barred by any principle of res judicata. It is therefore obvious that the explanation to Section 11 would not apply to such a case. In the present case, the reason given by the learned Subordinate Judge in the former suit for disallowing mesne profits was that the defendants had been in possession with the consent of plaintiff. That reason did not apply with equal force to the period after the institution of the suit. It would certainly not apply at all to the period after the passing of the decree for possession No doubt the language used by the learned Subordinate Judge was "mesne profits" but he did not expressly mention "futun mesne profits."
16. On facts the present case is almost oi all fours with the Full Bench case which is binding upon us, and we feel it most difficult to distinguish it. We must there fore assume in favour of the plaintiff that the dismissal of the claim for future mesne profits in the former decree do not have the effect of res judicata.
17. We are however clearly of opinion that the plaintiff cannot claim that the judgment of Mr. Allsop operates as res judicata in his favour. In the first place the plaintiff has not chosen to produce an: copy of the judgment of the origina Revenue Court and we are unable to say whether that Court had followed the pro cedure laid down in the Civil Procedure Code, for the trial of suits as would h required under Sections 201 and 199, Agra Tenancy Act in order that the decree might operate as a decree of a civil Court In the second place, the substantial question which arises in the present case whether a cosharer who is not in actual possession of his share can maintain suit for profits before he obtains possession through the civil Court. The village for which profits are claimed in this suit are different from those for which pro fits had been claimed before Mr. Allsop. The plaintiff might have obtained posses sion of some villages out of Court am not obtained any such possession in respect of other villages. The mere fact that he succeeded in obtaining a decree for profits in some villages does not necessitate his obtaining decrees in other villages also. The conclusion of Mr. Allsop that the passing of the first Court's decree on 9th August 1919 made him a co-sharer although that decree was the subject of an appeal to the High Court, and even though formal possession was not obtained till 22nd February 1924, was at best an expression of opinion on a question of law. When not only the subject-matter is different, but the cause of action also is different, the decision on a pure question of law would not be res judicata for all subsequent cases. In the third place, there was no issue framed in the Court below as to the binding effect of Mr. Allsop's judgment. And accordingly we are not sure whether there was any further appeal to the High Court from his judgment, and if so, with what result. We are therefore clearly of opinion that the plaintiff cannot claim that the defence is barred by res judicata.
18. The substantial question that remains for consideration is whether a cosharer who has been dispossessed of his share by other cosharers can maintain a suit for 'profits against the lambardar before obtaining possession against the other cosharers through the civil Court.
19. Under the old Tenancy Act, where a plaintiff was recorded as a cosharer, the Revenue Court was bound to presume that lie had a right to claim profits and the decree had to follow automatically. If however he was not regarded as having such right it was open to the Court either to try the question of his right itself or refer him to the civil Court. But it was obvious that if the Revenue Court wanted to try the question of title itself it could do so only as between the parties to the suit. In a suit under Section 164 brought by a person alleging himself to be a cosharer, though not so recorded, against the lambardar, the other persons who had dispossessed him would not ordinarily be made parties. The question of title as between the plaintiff and the other persons could not be gone into in their absence. The lambardar was bound to assume that such other persons who were recorded as cosharers had such right; and indeed he had no option but to pay them their share of the profits if they sued him : Laohharnan Prasad v. Shitoba Kunwar A.I.R. 1921 All. 396 and Mubarak Fatima v. Muhammud Quli Khan A.I.R. 1921 All. 124. The clause as to the absolute presumption arising, from the entry of names has been omitted from the corresponding section in the new Tenancy Act. But Section 271, Tenancy Act, now compels the Revenue Court to frame an issue and send that issue to the civil Court for trial. If only an issue is to be-sent to the civil Court and a new suit is-not to be filed, it follows that the parties in the civil Court will be those who were parties in the Revenue Court. Third parties who have dispossessed the plaintiff and got their names recorded would not, properly speaking, be made parties when this one issue is being tried by the civil Court. It therefore seems to follow that a plaintiff cannot get a decree for profits against the lambardar, when he is not actually in possession and other people who are no parties to the suit have dispossessed him and got their names recorded in the revenue papers. Under the old Act it was held by Banerji, J., in Hanuman Din v. Bam Bisal [1921] 14 I.C. 260 that, where A had executed a mortgage in favour of B and B's name was recorded as mortgagee, but A, the mortgagor, who happened to be also the lambardar, continued in, possession of the property and did not pay the profits to the mortgagee, a suit, by B for profits in the Revenue Court without suing for possession in the civil Court was not maintainable. The learned Judge held that a dispossessed mortgage could not in the guise of a suit for profits-recover possession from the mortgagor in the Revenue Court. This case was followed by Gokul Prasad, J., in Tirbeni Sahu v. Lachmi Pande A.I.R. 1923 All. 346 who held that a suit under Section 164, Tenancy Act, by a dispossessed mortgagee against the mortgagor for profits was not maintainable. In both these cases there was a dispute between the plaintiff cosharer and the defendant lambardar, and the question of a third party was not involved. Nevertheless, the learned Judges held that such a suit was not maintainable. It is not necessary for us to go to this length. But we certainly accept the principle that where a plaintiff has been dispossessed by third parties, he cannot relieve himself of the necessity of suing for possession in the civil Court by merely suing for profits in the Revenue Court.
20. As pointed out above the change in the law introduced by the Tenancy Act under which a Revenue Court is now compelled to refer an issue only to the civil Court the position of a dispossessed owner who is not recorded has in no way been improved. It seems to us that it is against the whole scheme of the Tenancy law that a person who has actually been dispossessed and who ought to seek his remedy in the civil Court should be allowed to evade a civil litigation by merely suing the lambardar for profits. The lambardar after all is agent of the cosharers and prima facie of the recorded cosharers. If any person claims that the name of some body else is wrongly recorded in his place, lie ought to get his rights declared and if necessary possession obtained against that somebody. The lambardar cannot be compelled to recognize his claim in the absence of these other persons who are putting forward their own independent title. We are therefore of opinion that no suit for profits against the lambardar lies at the instance of an owner who has been dispossessed by other people and that he must first obtain possession through the civil Court against the trespassers before he can be entitled to maintain the suit.
21. We may point out that the expression fin the old Section 201 and in the new Section 271 is "the proprietary right entitling him to institute a suit;" this is not exactly the same thing as proprietary title. A person may be the proprietor and yet ho may not have the right to sue for profits during a particular year. He might for instance have made a usufructuary mortgage or granted a lease of his proprietary interest to another.
22. It follows that the passing of a decree for possession by the Subordinate Judge on 9th August 1919 amounted to a declaration of the plaintiff's right. That did not have the effect of putting the plaintiff in effective possession. As a matter of fact under Section 199(2) of the old Tenancy Act, which was then in force the Revenue Court had to look to "the final decision of the civil Court of first instance, or appeal, as the case may be." The decision became final on the passing of the High Court's decree. But the decree being one for possession it required execution; and so long as the defendants to the civil suit had not been formally dispossessed by the civil Court they continued to be in possession. Indeed, if the plaintiff had not taken care to obtain possession within twelve years of the High Court's decree, his right might well have been extinguished. The trespassers were dispossessed on 22nd February 1924, and it was on that date that the plaintiff obtained possession. The lambardar is bound to pay profits to the plaintiff from that date. His liability to pay profits for the previous period was to the persons who were then in possession and whose names were recorded. As pointed out above, if those other persons had brought suits against him for the recovery of profits up to February 1924, the lambardar had no option but to pay.
23. We are accordingly of opinion that the plaintiff's remedy, if any, after the refusal to grant him relief in the civil suit, was a second civil suit against the heirs of Kunwar Abdul Latif Khan and not a revenue suit for profits against the lambardar. The present suit for this period is therefore not maintainable.
24. The position of the defendant as regards his own share in the inheritance of Kunwar Abdul Latif Khan might possibly have been different, and the final adjudication of the rights by the High Court on 21st April 1922 might have sufficed as he was holding possession as an agent of the cosharers, but unfortunately for the plaintiff the record does not disclose the defendant's exact share in the inheritance. It is therefore not possible to separate it from the rest.
25. The learned advocate for the plaintiff suggested that as all the materials are on the record the suit for profits may be treated as a civil suit and the question of want of jurisdiction in the trial Court might be ignored by the appellate Court. It is obvious that we cannot do anything of this kind. Not only is there a difference between the mesne profits against a trespasser and a share of profits against a lambardar, but the parties to the civil suit would also be different. In the civil suit the plaintiff would have to implead not only the present defendant, but all the other heirs of the deceased, when he is claiming his full share of the profits.
26. The defendant claimed credit for Rs. 450 said to have been paid to Bibi Khudeja Begam towards the discharge of a charge on the estate. This allowance is a charge not only on the village in suit but on the entire estate. It is not practicable to apportion the amount among the various villages. The payment is no part of the expenses of collection and the claim is really one of a set off. No setoff of this kind can be allowed in a revenue suit for profits.
27. The Court below allowed a flat rate of 5% for actual expenses. As the staff employed was not confined to this particular village, but was for the whole estate, we do not think that a flat rate of 5% was in any way unreasonable or unfair. The cost of litigation could not have been allowed when it was not proved satisfactorily that costs which had been incurred in litigation had remained unrealized. We accordingly see no force in the other pleas raised in the grounds of appeal.
28. The result therefore is that this appeal is allowed in part and the decree of the Court below for profits collected after 8th March 1922 is upheld, but the plaintiff's claim with regard to the profits awarded before that year is dismissed.
29. As details of accounts with the dates of the collections are not forthcoming and we do not think it proper to allow the parties to produce fresh evidence, we think that the amount decreed should be reduced proportionately, as after all profits, even though they became divisible, subsequently accrued from day to day. Out of the "period 1st July 1922 to 30th June 1925, the plaintiff is entitled to profits from 22nd February 1924 only, which roughly works out at 70 weeks out of 156 weeks, i.e., approximately 11/25. But in the grounds of appeal the defendant claims exemption for only three Faslis; the amount of the decree should therefore be reduced by half.
30. We accordingly allow this appeal and, modifying the decree of the Court below, direct that the amount decreed should be reduced by half. The parties will pay and receive costs proportionately in both Courts.