SHEO GHULAM Vs. SALIK RAM

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for profits under Section 164 of the Agra Tenancy Act against the defendant lambardar. The body of the plaint mentioned the year 1327 Fasli only, but the account1 of the amount claimed attached to the plaint shows that the claim was one for arrears collected in respect of the years 1324, 1825 and 1326 Fasli and for the gross profits of 1327 Fasli. The court of first instance found that the defendant had collected certain arrears for previous years and that he was grossly negligent in the year 1327 Fasli, having collected less than one-third of the gross rental for that year. Nevertheless, in view of the ruling in the case of Chhabraji Kunwar V/s. Ganga Singh (1920) I.L.R. 43 All. 29 it felt bound to disallow the claim for the arrears of previous years and only granted a decree on the basis of the gross rental for the year 1327 Fasli. The learned District Judge, when confronted by the same ruling, remarked: "I must confess that I have not quite grasped the reasoning on which the reported decisions are based. For they seem to lay down the proposition that if a plaintiff fails to prove negligence or misconduct and his suit is decreed for a particular year on the basis of actual collections, he is for ever debarred from claiming anything more even if the arrears outstanding are collected in the following year for which the decree is given on the total demand". He, however, felt bound to follow, the ruling referred to above and dismissed the appeal.

(2.) Now, independently of all authorities, I would have no hesitation in my mind in holding that the plaintiff's claim for arrears of the previous years actually collected in 1327 Fasli has been wrongly disallowed.

(3.) Section 164 contains two clauses. The right given in Clause (2) is not a substitute for but in addition to that given by Clause (1). 3. Clause (1) entitles a co-sharer to sue the lambardar for his share of the profits of a mahal, or of any part thereof. I think that the word "profits" in this clause means not only the rental for a particular year but also the arrears of rents remaining outstanding on account of the previous years.