JUDGMENT : Griffin, J. The plaintiffs in this case sued to recover a certain sum of money as compensation for the loss incurred by them by being kept out of possession of their share in certain holding in which they alleged that they and the defendants were co-tenants. In para. 1 of their plaint they allege that the parties were occupancy tenants in equal shares of holding No. 117 comprising 44 bighas 19 biswas of land in a certain village. Then the plaintiffs went on to say that the defendant is the zamindar of the land aforesaid. The suit was contested by the defendant on various grounds. The first Court held that the suit should be dismissed on the grounds that it was not cognizable by a civil Court that it was barred by limitation that a certain document called a twelve years' statement is not shown to refer to the land in suit and that a compromise filed by the plaintiffs is not also shown to refer to the land in suit. On appeal the lower appellate Court took a different view from the Court of first instance on all these points and decreed the suit. The defendant comes here in second appeal. The case does not appear to me to have been very satisfactorily tried by the Courts below. The Court below have not attempted to ascertain the exact status of the parties in relation to the land in suit. It is not clear how the defendant could be a co-tenant with the plaintiffs while at the same time he is a zamindar. Possibly on further inquiry the matter might receive elucidation. The lower appellate Court while holding that the twelve years' statement and the compromise do refer to the land now in suit gives no reason for its finding and does not explain why it differs from the Court of first instance. In view of the very definite finding the lower appellate Court should before holding that these documents had reference to the land in suit have given distinct reasons for that finding. In second appeal I do not wish to go into evidence and it appears to me that the proper course would be to send the issues to the Court below which would have the effect of clearing up the points which are at present somewhat in doubt. In second appeal I do not wish to go into evidence and it appears to me that the proper course would be to send the issues to the Court below which would have the effect of clearing up the points which are at present somewhat in doubt. I refer the following issues to the Court below for determination: (1) Whether the statement called the twelve years' statement has reference to the land now in suit? If so what does that statement prove? 2. Similarly with regard to the compromise of 28th June 1910 does the compromise refer to the land in suit, and if so what is its effect? 3. I also require a finding as to the exact status of the parties in regard to the land now in suit. 4. Such further evidence as may be necessary for determination of the issues remitted may be taken. On receipt of the findings, ten days will be allowed for objection. 5. (On receiving the findings, the following judgment was delivered:) JUDGMENT 6. In this case issues were referred to the Court below by Griffin, J., for the elucidation of the facts of the case which had not been clearly found by either of the Courts below. Those facts were also incorrectly stated in the plaint by the plaintiffs. The facts as now ascertained are these: The holding in dispute which is 44 bighas 19 biswas in area originally formed the sir of two persons, Meghraj and Hira Singh. On 28th September 1880 the interests of Meghraj were sold by auction and were purchased by the defendants Bhola Nath. On 20th November 1880, Hira Singh's interests were similarly sold and Balwant the predecessor-in-title of the plaintiffs, purchased them. In the twelve years' statement prepared in 1303 fasli and 1304 fasli this land was entered as the sir of Bhola Nath and Balwant, and it continued to be so entered till 8th June 1896 on which date Balwant's interests in the zamindari were sold by him to the defendant Bhola Nath. Thus a half share of the land in question became the sir of Bhola Nath and the other half the ex-proprietary holding of Balwant. Thus a half share of the land in question became the sir of Bhola Nath and the other half the ex-proprietary holding of Balwant. The plaintiff's case is that Balwant and Bhola Nath jointly cultivated the land each taking a half share of the profits and that the plaintiffs are therefore entitled to their half-share of the usufruct of the land for the years 1315, 1316 and 1317 fasli. They brought the suit out of which this appeal has arisen for recovery of their share of the usufruct which they stated to be Rs. 168-11-9. In the plaint the plaintiffs wrongly stated that the land was the occupancy holding of themselves and Bhola Nath. As a matter of fact, as I have pointed out above it was originally the sir of Bhola Nath and Balwant and subsequently after the sale of Balwant's intersts to Bhola Nath half of it was the sir of Bhola Nath and the other half the ex-proprietary holding of Balwant. The Court of first instance dismissed the suit holding that it was not cognizable by the civil Court. This view of the learned Munsif was clearly erroneous. The suit was not by one co-sharer against another for his share of the profits of the zamindari, nor was it a suit by a tenant who had been wrongfully dispossessed for compensation for such wrongful dispossession. It was really a suit for the profits of immovable property which had been wrongly withheld from the plaintiffs. The lower appellate Court came to the finding that the plaintiffs and Bhola Nath were co-tenants of the land in suit. For the reasons I have already stated that, finding was also erroneous inasmuch; as Bhola Nath is the zamindar and not the tenant of any portion of the land. He holds half of it as his sir. The lower appellate Court however made a decree in the plaintiffs' favour for a portion of their claim. When the case was sent down to the Court below under the order of Griffin, J., the lower appellate Court came to the finding that the plaintiffs or their predecessor, Balwanti did not actually cultivate the land for a large number of years and apparently for a period exceeding twelve years. On this ground it is contended on behalf of the appellant that the plaintiffs not being in possession, their claim ought to have been dismissed. On this ground it is contended on behalf of the appellant that the plaintiffs not being in possession, their claim ought to have been dismissed. In my opinion this contention is without force and for this reason Balwant was entitled to the possession on half of the land as his ex-proprietary holding and therefore he had a right to half of the profits arising from the land after deduction of the rent which Bhola Nath was to get from him for his ex-proprietary holding. No doubt Balwant and after him the plaintiffs have not cultivated the land. But by reason of their not being so their right has not become extinct inasmuch as we find that on 28th June 1909 (not 1910 as is stated in the judgment of the Court below) the parties to the present suit in a litigation then pending in a revenue Court entered into a compromise by which it was agreed that the present plaintiffs should continue in possession as before and pay to. Bhola Nath a rent of Rs. 55 per annum. It has been found that this compromise relates to the land now in suit as did the litigation in which the compromise was an admission by the defendant Bhola Nath of the right of the plaintiffs in respect of the holding and therefore the title of the plaintiffs had not become extinct in the years to which the present suit relates. The fact of their not actually cultivating the land during those years does not deprive them of their right to the profits to those years which were wrongly withheld from them by the defendant. The Court below has come to a finding as to the amount of the profits and has made a decree for that amount. That is a finding of fact which must be accepted in this appeal. The result therefore is that this appeal fails. It is accordingly dismissed with costs.