JUDGMENT

Sulaiman, J. - This is a plaintiff's appeal arising out of a suit for profits u/s 164 of the Agra Tenancy Act against the defendant lambardar. The body of the plaint mentioned the year 1327 Fasli only, but the account1 of the amount claimed attached to the plaint shows that the claim was one for arrears collected in respect of the years 1324, 1825 and 1326 Fasli and for the gross profits of 1327 Fasli. The court of first instance found that the defendant had collected certain arrears for previous years and that he was grossly negligent in the year 1327 Fasli, having collected less than one-third of the gross rental for that year. Nevertheless, in view of the ruling in the case of Chhabraji Kunwar v. Ganga Singh ILR 1920 All. 29 it felt bound to disallow the claim for the arrears of previous years and only granted a decree on the basis of the gross rental for the year 1327 Fasli. The learned District Judge, when confronted by the same ruling, remarked: "I must confess that I have not quite grasped the reasoning on which the reported decisions are based. For they seem to lay down the proposition that if a plaintiff fails to prove negligence or misconduct and his suit is decreed for a particular year on the basis of actual collections, he is for ever debarred from claiming anything more even if the arrears outstanding are collected in the following year for which the decree is given on the total demand". He, however, felt bound to follow, the ruling referred to above and dismissed the appeal.

2. Now, independently of all authorities, I would have no hesitation in my mind in holding that the plaintiff's claim for arrears of the previous years actually collected in 1327 Fasli has been wrongly disallowed.

3. Section 164 contains two clauses. The right given in Clause (2) is not a substitute for but in addition to that given by Clause (1).

3. Clause (1) entitles a co-sharer to sue the lambardar for his share of the profits of a mahal, or of any part thereof. I think that the word "profits" in this clause means not only the rental for a particular year but also the arrears of rents remaining outstanding on account of the previous years.

4. In the case of Nand Kishore v. Ram Ratan Weekly Notes 1887 p. 250 Mahmood, J. pointed out that under Clause (h), Section 93 of the Rent Act, the word "profit" meant not only rent in respect of the years to which the rent relates, but also to such arrears of rent as are actually realized by the lambardar during the year to which such suit may relate.... What has to be seen is whether in any particular year the lambardar has or has not with due diligence realized such rents as were due for the years to which the suit relates, as also in respect of the arrears of rent for past years". In S.A. No. 1762 of 1915 Sham Lal v. Raj Bahadur, decided on the 27th of June, 1917, and reported at the foot-notes on pages 31 and 32 of ILR 43 Allahabad, Piggott and Ryves, JJ. said: "the divisible profits of an agricultural year mean ordinarily the net balance remaining in the hands of the lambardar after deducting the land revenue, cesses, village expenses and chaukldar's dues from his total realization made during the year, whether on account of the payment of the year itself or on account of the payment of the previous years". In fact suits for profits under Clause (1) are decreed every day on this basis.

5. Clause (2) entitles a co-sharer to get not only a share of the profits actually collected, but also of such sums as the plaintiff may prove to have remained uncollected owing to the negligence or misconduct of the defendant. Thus under Clause (1) the co-sharer is entitled to have his full share of the amount actually collected whether on account of previous years or for the year in suit and. then under Clause (2), in addition to what he is entitled to under Clause (1), he can get his share of the entire amount that has remained uncollected owing to the lambardar's negligence or misconduct. It follows, therefo