JUDGMENT : RICHARDS, J. This was a suit brought in the Court of the Assistant Collector for arrears of rent. The Assistant Collector gave a decree for a portion of the claim. But on appeal his decision was reversed, and the suit of the plaintiff was dismissed on the ground that his remedy was a suit under section 165 of the Tenancy Act of 1901. It is an admitted fact that the plaintiff represents a 12 anna share in a certain village and the defendant a 4 anna share in the same village. The judgments of both Courts have proceeded upon the basis that the plaintiff and the defendant and those whom they respectively represent were and are in exclusive occupation of the cultivated area of the village save as hereinafter mentioned. The remaining portion of the village, namely, what was the uncultivated area, was not and is not in the exclusive pessession of either party but is their joint property in the proportion of 12 to 4. That this was the state of facts would also appear from the 5th paragraph of the written statement. In this state of facts an agreement was entered into which is recorded in the wajib-ul-arz as follows:— “If a co-sharer will cultivate waste land newly broken up rent at the rate payable by the tenants shall be taken from him.” It is admitted that the defendant and those whom he represents newly broke up a certain portion of the waste land (which was not in the exclusive possession of either co-sharer) and the present suit was brought to recover arrears of rent in respect of such waste land broken up and brought into cultivation by the defendant. The plaintiff in his suit treated the defendant as tenant and relied upon the agreement recorded in the wajib-ul-arz as creating that relation between him and the defendant. The Assistant Collector in his judgment pointed out that what was claimed was too much, and that the plaintiff was only entitled to get rent in proportion of 12 to 4 in respect of the land brought into cultivation and a decree for a sum thus fixed was given. The Assistant Collector in his judgment pointed out that what was claimed was too much, and that the plaintiff was only entitled to get rent in proportion of 12 to 4 in respect of the land brought into cultivation and a decree for a sum thus fixed was given. The lower appellate Court set aside this judgment on the technical ground that, in as much as the plaintiff and the defendant were co-sharers, the relationship of landlord and tenant did not exist and that there must be a suit for the settlement of accounts between them. This decision would have a great weight if the plaintiff and defendant were in occupation or making collections in respect of parts of the village, larger or smaller, than the share to which they were respectively entitled, or if the plaintiff and defendant were not in exclusive possession of any particular part of the village at all. In the present case, however, it has never been alleged that there are any accounts to be settled between the plaintiff and the defendant save a liability in respect of which the present suit has been brought. For the purpose of considering the construction of the contract as recorded in the wajib-ul-arz it is convenient to remember what the position of the parties was at the time. The plaintiff was in exclusive possession of the cultivated area to the extent of a 12 anna share while the defendant was in like possession to the extent of a 4 anna share. In this view I think it was a reasonable interpretation of the contract between the parties that their intention was, that if either party brought into cultivation any of the waste land (which was in the exclusive possession of neither), he should become and be treated as tenant to his co-sharer of the part so brought into cultivation, and that he should be liable to pay rent to his co-sharer in proportion to the shares in which the village was held. It will be seen from the written statement that the real defence to the present suit was an attempt to go behind the agreement between the parties and claim as a set-off to the rent the expenses of an embankment and levelling the ground alleged to have been done by the defendant in the course of bringing the waste land into cultivation. This would not have been inequitable had it not been that the parties entered into a special contract. I decide the case entirely on its own facts and circumstances. In my judgment the decision of the Assistant Collector was a correct decision and ought to be restored. I accordingly allow the appeal, set aside the judgment of the lower appellate Court with costs, and restore that of the Court of first instance.