ORDER

Yorke, J. - This is an application u/s 115, Civil P. C, by a defendant. The plaintiff, Shaukat Husain sued to recover from the defendant as lambardar profits of the years 1344, 1345 and 1346 Fasli. The plaintiff was a person who according to his own allegations had taken a transfer of a share in a village from a cosharer by a sale deed dated 12th June 1939, that is in the currency of the Fasli year 1346. By the sale deed it was contracted that the vendee was assigned the profits of the years 1344, 1345 and 1346, although the cause of action for recovery of the profits of 1346 would only arise on 1st August 1939, that is to say the cause of action had not arisen and that cause of action would automatically accrue to the vendee in respect of the profits of 1346 in his capacity as transferee cosharer. As regards the profits of the two earlier years it is evident that the position of the plaintiff, assuming that his sale deed was valid, would be different from that of an ordinary assignee of profits and the conveyance might equally well have been put in the form that along with the share the vendor contracted to transfer to the vendee the right to all arrears of profits appertaining to the share transferred. This being the position of affairs, the plaintiff filed in the Court of the Munsif a suit to recover Rs. 60 as the amount of profits due for the three years 1344, 1345 and 1346. The learned Civil Judge, to whose Court the suit was transferred from the Court of the Munsif in which it was filed, held that the suit was not cognizable by him but was cognizable by a revenue Court and directed that the plaint should be returned to the plaintiff for presentation in the appropriate revenue Court.

2. The plaintiff filed an appeal in the Court of the District Judge and the District Judge by his order of 30th January 1942 has held the decision of the learned Civil Judge on the question of jurisdiction to be wrong and directed that the suit be remanded to the trial Court for disposal according to law. The view upon which the learned District Judge has acted is that whereas under the Agra Tenancy Act of 1926, Section 229, an assignee had the same position as a cosharer, under the Tenancy Act of 1939 there was no such provision and therefore he thought that as an assignee of profits the plaintiff was not entitled to sue in the revenue Court and must go to the civil Court. He remarked that the suit was a regular account suit and a question of proprietary title was involved. So far as I am able to judge, the fact that a question of proprietary title was involved would not alter the proper forum if the plaintiff was entitled to sue for profits as a cosharer. The only effect would be that it would be necessary for the revenue Court before which the suit was proceeding to frame an issue as to title and remit it to the appropriate civil Court for decision and thereafter to decide the suit for profits on the footing of the correctness of the decision of the civil Court. The present application is filed by the defendant who contends, in the first instance, that the suit was cognizable by a revenue Court and, in the second instance, that if this Court should be of opinion that the suit is not cognizable by a revenue Court, then it is an ordinary suit for money cognizable by a Court of Small Causes. With reference to the last contention it is urged that even although a question of proprietary title may be raised that would not take the suit out of the cognizance of the Small Cause Court but would only have the result that the Judge of the Small Cause Court would act u/s 23 (i), Provincial Small Cause Courts Act, and return the plaint to be presented to a Court having jurisdiction to determine the title, the suit remaining in essence a Small Cause Court suit. The first question which arises on this application is whether such an application falls within the scope of Section 115, Civil P. C. It will be sufficient in this connection to refer to the