NILKANTH Vs. RUP SINGH

JUDGEMENT

(1.) This is a second appeal by Nilkanth, defendant, against concurring decrees of the two lower Courts holding him liable to the plaintiffs for profits for the years Rs. 1331 to 1333. The parties are related as follows:

(2.) It is admitted that the plaintiffs and defendants, their uncles, are co-sharers in a patti No. 1, rental Rs. 205-12-0, and that Chhatari was the original owner of the land in question. After his death his widow was entered, and on her death in F. 1331 the names of the parties were entered. Para. 2 of the plaint alleges that the defendants make collections in respect of the said patti No. 1 and pay the Government revenue and cesses, and that the profits are then to be divided between the parties in proportion to the half share which each party owns. This arrangement is admitted in para. 2 of the written statement of the appellant. The written statement set up a plea that profits were satisfied by the grant to the plaintiffs of land in other mahals, but the lower Courts have found this plea to be unproved. The situation therefore is that the defendants alone collected the rent in this patti and have not paid any profits to the plaintiffs who are due a half share of the rent. There is apparently no area of sir and khudkasht in this patti. There is a lambardar Ramnarain, but he does not make any collections in patti No. 1.

(3.) The chief ground of appeal is that the lower Courts have granted a decree for profits to the plaintiffs on gross rental. The suit was brought under Section 227 Act 3 of 1926, and it is contended that a decree can only be passed against co-sharers on collections and not on gross rental. Both the lower Courts have laid stress on the fact that the defendant was negligent in collections and did not sue any tenants for arrears of rent or eject any tenants and allowed the arrears to accumulate from practically nothing to the sum of Rs. 153-9-5 during the three years in question. I consider that this contention for the appellant is well founded, and that a decree cannot be passed on gross rental against a co-sharer for negligence of that co-sharer in making collections. It is true that in the present case the defendants undertook what are practically the duties of lambardars, but in default of the definite appointment of the defendants as lambardars the liability of a lambardar under Section 226, Act 3 of 1926, cannot attach to the defendants. The remedy is for the plaintiff's to take part in making collections themselves and the plaintiffs should not leave that work entirely to the defendants.