SHIVA CHANDAR SINGH Vs. RAM CHANDAR SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by co-sharers against the lambardar. The court of first instance held that the defendant had been guilty of negligence and decreed the plaintiffs claim on the basis of the gross rental. The lower appellate court varied the decree of the court below. In the course of his judgement the learned District Judge says : "The next point urged is that the profits should be calculated on actual collections and not on the recorded rentals as has been done by the lower court. THIS plea in my opinion must be allowed, for in a suit under Section 164 of the Tenancy Act, profits must be allowed on actual collections, unless it is proved that the rents have remained uncollected owing to the negligence or misconduct of the lambardar. In this case as far as I can see there is nothing to show that the rents were not collected through the negligence or misconduct of the defendant." The court of first instance had stated : "The patwari further states that the amount of arrears is recoverable and the tenants are in a position to pay it. Accordingly on the plaintiffs application the defendant lambardar was examined. When he was asked to state the cause of such heavy arrears, he did not give any satisfactory cause. On the other hand he stated that he knew nothing at all, that he had no account-book of collections and arrears, nor could he state what amount of money was realized from what tenant, and what amount of money was in arrears. The burden of proof that the money which is due by the tenants remained in arrears owing to unavoidable circumstances lay on the defendant. But he did not prove it. The statement of the defendant that he did not know anything at all proves that he had not made his statement in good faith." It seems to us that if a co-sharer gives general evidence to show that the rents are greatly in arrear, that the tenants are solvent, and that there are no special circumstances why the rents should not have been collected, the onus is shifted on to the defendant of showing that for some reason not connected with his own negligence or misconduct he was unable to collect the rents. It is very difficult to see what other evidence a co-sharer under ordinary circumstances could give. THIS view was taken by a learned Judge of this Court in the case of Mithan Lal v. Mizaji Lal (1912) 10 A.L.J. 529. In the present case the evidence of the lambardar, as pointed out by the court of first instance, was extremely unsatisfactory. If the defendant knew nothing about the circumstances of the village, he should have produced his karinda. There seems to be no dispute about the expenses. We think before finally disposing of the appeal, we shall refer the following issue to the court below : "What rents for the years in suit were left unrealized and how much of these arrears were unrealized on account of the negligence or misconduct of the lambardar?" We direct the court below to order the lambardar (within a time to be specified in the order) to file an account showing the names of the tenants, the amounts that have been realized from each of the tenants, and the amounts left unrealized. In the case of rents unrealized the lambardar will give in a column of the account his reasons why these rents were not realized. When this account has been filed the plaintiffs will have a right to see the same, and they will then be entitled to go into evidence to show that in respect of the moneys not realized, the lambardar was guilty of negligence or misconduct. The lambardar will of course have a right to rebut the evidence, if any, produced by the plaintiffs. The usual ten days will be allowed to file objections on return of the finding.