Gokul Prasad, J.:— This is a defendant's appeal arising out of a suit for profits for the years 1323, 1324 and 1325 F. It appears that the defendant-appellant owns an 8 annas share in the village and is also Lambardar. In the year 1314 F. he executed a mortgage of a 3 anna 1 pie out of the 8 anna share in favour of the plaintiffs, the plaintiffs giving them a lease for 7 years of the mortgaged property. The period of lease expired in 1322 F. but the defendant continued to take collections and now prevents the plaintiffs from making collections from the tenants. The mortgage has not yet been admittedly redeemed. The plaintiffs brought the present suit under section 164 of the Tenancy Act as a suit for recovery of profits. One of the pleas raised in defence was that such a suit did not lie. The learned Assistant Collector fixed, issue No. 3 on this point and came to the conclusion that the plaintiffs being co sharers, such a suit was maintainable. This decree was confirmed on appeal after certain findings had been obtained on issues remitted by the lower appellate Court. The defendant comes here in second appeal and the first point taken before me in appeal is that such a suit does not lie at all and reliance is placed on the case of Hanuman-Din v. Ram Bisal(1) decided by Mr. Justice Banerji. In that suit his Lordship came to the conclusion that a suit like this by a dispossessed mortgagee did not lie against his mortgagor. That decision is on all fours with the present one and I see no reason to differ from the conclusion arrived at by Mr. Justice Banerji in that case. Mr. Uma Shanker Bajpai on behalf of the plaintiffs-defendants contended that in that case it was alleged by the defendants that the mortgage had ceased to exist because of the want of possession of the mortgagee for more than 12 years, but I do not see how this distinction will help the plaintiffs. Mr. Justice Banerji rsmarks in that case as follows:—
The Courts below have dismissed the suit on the ground that this is not a suit for pro???ts by a recorded co-sharers against a lambard ar but is in reality a suit by the mortgagees against their mortgagor who dispossessed them. No doubt the names of plaintiffs are recorded in the revenue papers. But the defendant fills two capacities. He is the mortgagor as well as the lam-bardar; by withholding profits he as mortgagor has dispossessed the plaintiffs and the plaintiffs remedy is to seek to recover possession and possibly mesne profits. As such mortgagees they cannot in the guise of a suit for profits recover possession from their mortgagor in the Revenue Court
2. With these remarks I am in full accord. It has however been urged by Mr. Bajpai, the learned vakil for the respondents, that this is really a plea of want of jurisdiction of the Revenue Court and not having been taken in the Court of first instance should not be heard now and reference is made to section 195 of the Tenancy Act. This contention is not right. There is no plea that the Revenue Court was not competent to decide the present suit but that a Suit like the present one did not lie at all either in the Revenue Court or in the Civil Court.
3. It is not necessary to enter into the other pleas taken in appeal. I therefore allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's suit with costs in-all Courts.
4. Appeal allowed