JUDGMENT

1. This appeal arises out of a suit u/s 164 of the N.W.P. Tenancy Act of 1901.

2. Thakur Ganga Singh (plaintiff-respondent) sued Musammat Chhabraji Kunwar, Lumbardar, (defendant-appellant), for his share of the profits of the village for the years 1321 and 1322 Fasli, In his plaint he stated that the village was well irrigated and that the tenants were well-to-do; and, without alleging any specific misconduct or negligence on the part of the Lambardar, (except in one particular which has been abandoned), claimed to be paid a sum of Rs. 2,200 which included interest, on the basis of the gross rental. He went on, however, to state in Paragraph 4 of his plaint that, "in the years in question the defendant Lambardar realised a considerable amount on account of arrears for the past years and the plaintiff is entitled to get the profits on the said amount according to his own share."

3. The relief sought was (a) a decree for Rs. 2,200, Principal and interest and (b) "a decree for the amount which is found due in addition to the amount claimed may also be passed in his favour and an additional Court-fee charged."

4. To the plaint was annexed an account showing what was due for the two yearn in suit, 1321 and 1322 Fault It is, therefore, clear that the suit was mainly concerned with the profits of these two years. Court fees were paid only for the profits of these two years, and the accounts filed with the plaint referred ex-clusively to them, No details were furnished as to collections made for years before 1321 Fasli. The main defense was that there was no negligence or misconduct and that plaintiff was only entitled to a decree on the basis of actual collections.

5. The Trial Court held that the Lambardar defendant had been guilty of misconduct, and gave a decree for the two years in suit on the gross rental, and also a further sum for the years 1318. 1319 and 1320 for arrears which he found had been recovered by the defendant in the years in suit. In all, he passed a decree for Rs. 3,190 3 0 with costs and interest in favour of the plaintiff. On appeal the District Judge upheld this decree. Hence this second appeal.

6. Two main grounds have been argued:

(1) That the decree should have been passed either on the basis of the gross rental for the two years in suit-, or on the basis of actual collections during those two years, which would, of course, include collections of arrears of rent due in previous years, but that it was wrong to give a decree for the gross rental plus such arrears.

(2) That misconduct or negligence had not been established and that, therefore, the decree should be passed according to the actual collections.

7. It has been held, certainly since the decision in Nand Kishore v. Ram Ratan (1887) A.W.N. 250, that the divisible profits for any agricultural year mean, ordinarily, the net balance remaining in the hands of the Lambardar after deducting the land revenue, cesses, village expenses and Lambardari dues from his total realisations made during the year in question, whether on account of the demand of the year itself or on account of the demand of previous years. If a plaintiff claims u/s 164, Clause (2), on the basis of goes rental for his share of the profits of any given year, he cannot also get a decree for arrears of past years, collected in the year in question; because, to hold otherwise, might be to evade the law of limitation. Indeed, it was admitted by the learned Vakil for the respondents at a late stage of the argument, that as the suit was filed on the 20th November 1915, the arrears for 1318 and 1319 as such were certainly time-barred and probably most of the arrears of 1320.

8. This is evident from the limitation for suits u/s 164 set out in the 4th Schedule, No. 16, appended to the Act. The limitation is three years, and the time from which limitation begins to run, is when the share of the profits becomes due.

9. We think, therefore, that the plaintiff is entitled to a decree either on the gross