JUDGMENT

Sulaiman, J. - This is a plaintiff's appeal arising out of a suit for profits u/s 164, old Agra Tenancy Act, against a lambardar. The plaintiff's name is recorded as proprietor of a specific area of land with a specific share of the profits. The defendant is admittedly a lambardar of the village. The parties are brothers. The Courts below have dismissed the suit on a finding that the family is joint, and that a member of a joint Hindu family has no right to claim profits from the karta of the family.

2. In our opinion, it was not open to the Courts below to go into the question of the jointness or the separation of the parties. The plaintiff repudiated the suggestion that he was a member of a joint Hindu family. His name was recorded as a proprietor in the revenue papers for the years for which the profits were claimed. u/s 201, Sub-clause (3), if the plaintiff is recorded as having the proprietary right entitling him to institute a suit under the provisions of. Chap.11, the Court shall presume that he has this right. The defendant's plea that the plaintiff has no such right because the family was joint, should not have been allowed to prevail.

3. It was held by a Full Bench of this Court in the case of Durga Prasad v. Hazari Singh [1911] 33 All. 799, that the words "shall presume" in the section mean irrebuttable and conclusive presumption. The learned vakil for the respondent relies on an unreported case decided by Sundar Lal, J., namely, Dharam Singh v. Ratti S.A. No. 443 of 1913, decided on 1st March 1917. That case no doubt helps him. We are of opinion that the learned Judge's view that the presumption merely meant that the recorded co-sharer had a proprietary right and did not mean that he had a right to institute a suit for profits, was not correct. Reading Sub-clause (1) with Sub-clause (3), it is obvious that the presumption relates to the existence of the proprietary right entitling the recorded co-sharer to institute a suit for profits under Chap. 11 of the Act. The view of the single Judge is contrary to that subsequently expressed by a Bench of this Court in the case of Shambhu Vs. Kanhaya, AIR 1922 All 332 where it was held that the I.L.Rpresumption was nonetheless applicable because the parties to the suit may be members of a joint Hindu family. As remarked above, we think that the question of jointness should not at all have been gone into.

4. We may note that the learned District Judge has relied on the fact that an entry in the wajib-ul-arz for a previous period indicates that the defendant collects rent as the manager of a joint Hindu family. This wajib-ul-arz not being for the years in suit, cannot override the entry in the khewat. It is also possible that a family may be joint in the year for which the wajib-ul-arz has been prepared and may become separate afterwards. Under these circumstances the presumption u/s 201, as interpreted above, stands.

5. We accordingly allow this appeal and setting aside the decree of the Courts below, remand the case under Order 41, Rule 23 to the Court of first instance through the lower appellate Court for the determination of the correct amount of profits due to the plaintiff.