JUDGMENT

1. Those are two connected second appeals arising out of the same series of transactions. They may be disposed of by a single judgment, the facts in both cases being substantally the same. The respondent, Mohammad Masih-ul-lah Khan, who is the plaintiff in both suits, is the lambardar of a certain mahal. In that mahal there was a share of six annas belonging to one Rafaat Khan and a share of two annas belonging to Musammat Zohra Begam. At one time Zohra Begam was also in possession as sub-mortgagee of the six-annns shave belonging to Rafaat Khan. While thus in possession she leased out to the defendant-appellant, Ahmad Said Khan, the right to receive the profits of the entire share of eight annas, that is to say, of her own share of two annas plus Rafaat Khan's share of six annas. Subsequently Rafaat Khan executed a simple mortgage of his own six annas share to Ahmad Said Khan aforesaid, making it part of the covenant, that the existing usufructuary mortgage should be redeemed out of the consideration for the said simple mortgage. This was done, and inconsequence of this redemption the rights of Zohra Begam over Rafaat Khan's six-annas share terminated. Nevertheless Ahmad Said Khan continued to be recorded as lessee in possession of the entire eight-annas share. He brought suits for profits in the rent Court on the strength of this entry, and the matter was litigated up to this Court, terminating in a decision which will be found reported as Ahmad Said Khan v. Masi-ullah Khan 13 Ind. Cas. 975 : 9 A.L.J. 152 : 34 A. 250. This Court held that, inasmuch as the Revenue Records showed Ahmad Said Khan to be the person entitled, to receive the profits claimed by him during the years in suit, a decree must be passed in his favour. The suits now before us are brought in consequence of this decree. Muhammad Masih-ul-lah Khan claims that he is in a position to prove that the entries in the papers which showed Ahmad Said Khan as lease of the six-annas share belonging to Rafaat Khan, were incorrect. He seeks relief by way of a declaration to this effect, a further declaration that Ahmad Said Khan was not entitled to receive the profits decreed in his favour by the Kent Court, and also that the decrees obtained by Ahmad Said Khan are incapable of execution. With regard to the form of the reliefs claimed, it is perhaps open to argument that the last relief sought should rather have been a perpetual injunction restraining Ahmad Said Khan from executing those decrees, bat this is a matter of form rather than of substance, and in the view we take of the case as a whole it is not necessary for us to go into it. The Court of first instance dismissed the claim on various grounds, but it has been decreed by the learned District Judge in appeal. Coming to this Court in second appeal Ahmad Said Khan principally contends that the decision of the learned District Judge has been arrived at by excluding Important evidence tendered by him as defendant, and practically by preventing him from establishing the defence which he set up on the merits. When the usufructuary mortgage on Rafaat Khan's six-annas share was redeemed, the right of Ahmad Said Khan to continue in possession as a lessee undoubtedly terminated, but it was for the proprietor, that is to say, for Rafaat Khan, to take whatever steps were necessary in order to enforce his right to possession over his own share. Now the case for Ahmad Said Khan is that, so far from doing this, Rafaat Khan entered into an arrangement with him by which he was allowed to continue in possession as lessee for the unexpired portion of his lease, on condition that whatever sums he received from the lambardar on account of the profits of his share should be credited towards payment of the money due to him from Rafaat Khan on the simple mortgage. This is a defence which it was clearly open to Ahmad Said Khan to set up, and it appears to us that the learned District Judge has misconceived the nature of the defen