LALA DURGA PRASAD Vs. GANGA SARAN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for settlement of accounts against a co-sharer under Section 165 of the Agra Tenancy Act. The Court of first instance came to the conclusion that all the dues entered in the papery had been realised by the defendants and he gave the plaintiffs a decree on that basis. On appeal the learned District Judge, was of opinion that the arrears of rent which were due on account of years previous to the period in dispute and which had been collected during that period could not be fairly taken into account and that, excluding such arrears, the defendants had not collected any more than what would prevent their own share after deducting the land revenue to be paid by them. In this view of the matter, he allowed the appeal and purported to dismiss the whole suit, though he omitted to use these latter words.

(2.) In my opinion the decree of the learned District Judge must be upheld. I am aware of cases coming under Section 164 of the Act in which it has been laid down that a co-sharer may either be given a decree on the basis of the gross rental or on the basis of actual collections, and that if a decree is based on actual collections such collections include arrears for the previous years also, but in my opinion the principle of those decision would not apply to a suit under Section 163. In suits under Section 164 it is the duty of the Lambardar to make collections both of the rents due for the year as well as for arrears of rent, on behalf of the whole body of co-sharers. If, therefore, a decree is to be given on actual collections, those collections must include arrears for previous years also; whereas in a suit under Section 165 against co-sharer defendants it cannot be said that it was the duty of the defendants to make collections of the plaintiffs share also. The defendants can be held liable only if they have collected rents in excess of their own legitimate share. That only can be the true basis of accounting between the parties. In the present case, therefore, the arrears of rent, which might have been recovered by the defendants on account of years prior to the period in dispute, could not properly have been taken into account. The accounting had to be confined to the period of three years prior to the suit, and for that period it is found by the learned District Judge that the defendants did not collect more than their proper share after deducting the land revenue paid by them. The defedants, therefore, have not collected anything in excess of their share. They have not, therefore, collected anything out of the plaintiff's share of rent, and are not liable to account for it.

(3.) It is also worthy of note that the learned Judge has accepted a receipt signed by one of the plaintiffs and purporting to be on behalf of all the three plaintiffs acknowledging the receipt of their full share of the rents for the previous period and giving a complete discharge to the defendants. In view of all these circumstances, the arrears of rent for the previous period had been rightly excluded and the decree of the learned District Judge was correct. The result is that this appeal fails and is hereby dismissed with costs including in this Court fees en 1he higher scale.