MITHAN LAL Vs. MIZAJI LAL

JUDGEMENT

(1.) THIS is a suit by a co-sharer in a village against the lambardar for the profits of the plaintiff s share for rabi, 1315 Fasli and for the years 1316 and 1317 Faslis. The only question for decision is whether the lower Appellate Court was right in giving a decree to the plaintiffs for the profits calculated on the demand and not on the actual collections. The lower Appellate Court was of opinion-that the plaintiffs bad succeeded in showing that the lambardar s failure to collect a larger sum during the years is question was due to negligence. In second appeal, it is contended that, whatever may have been the law previously, according to the present law which is contained in Section 164 of the Tenancy Act, the plaintiff must in a case of this kind prove precisely what sums have remained uncollected owing to the negligence of the lambardar, that is to say, he must in the case of each tenant show that the sum not collected from him remained uncollected owing to the negligence of tile defendant. The language of the section, no doubt, differs to some extent from the language of Section 209 of the old Rent Act (Act XII of 1881), which it has re-placed, but it appears to me that the meaning of the two sections is practically the same. The Tenancy, Act has been in force for nearly eleven years and the learned Vakils for the defendant in the present case are unable to refer me to any case in which it has been held that the plaintiff, who claims more than his share according to the collections, must go into the account of each tenant and show what items have remained uncollected owing to the negligence of the lambardar. As far as I know, the practice has been the same under the Tenancy Act as it was under the old Rent Act of 1881. The burden of proof is placed in the first instance on the plaintiff who is required to produce some general evidence of negligence on the part of the lambardar, such as, evidence that a very large percentage of the rent has remained uncollected. The Court then calls upon the lambardar to explain why so large a percentage has remained uncollected, and, in the absence of a satisfactory explanation shifts the burden of proving the real profits of the property on to him. THIS is what has been done in the present case, but in addition to producing evidence that a very large percentage of the rent remained uncollected, the plaintiffs proved several other suspicious circumstances. They also obtained from the lambardar an admission that he had kept no accounts and that ha had not had all the collections entered in the patwari s siaha. In these circumstances, I must hold that the plaintiffs gave more than prima facie proof of the negligence of the lambardar, and that the burden was rightly shifted on to the lambardar to explain why so large a sum remained uncollected. In my opinion, the Court was right in giving the plaintiffs profits calculated on the demand. But it omitted to allow the lambardar his lambardari dues on the plaintiff s share of the collections. The sum is Rs. 10-10-0. To this extent the appeal is allowed with proportionate costs throughout.