RAM SARUP Vs. GAYA PRASAD

JUDGEMENT

(1.) The suit out of which this appeal arises was brought under Section 165 of the Tenancy Act by certain zamindars for profits. During the period in which the profits have become due Ram Dayal was lambardar. Ram Dayal had, however, died before the suit was brought and it was sought to obtain the profits from his sons as his representatives. The trial Court awarded profits on a basis of demands. The lower appellate Court has awarded profits on a basis of collections.

(2.) In second appeal it is asserted that the profits should have been given on a basis of demands and in support of that proposition reliance is placed upon the authority of the Full Bench decision in Bharat Singh V/s. Tej Singh (1918) 40 All. 246. That decision does not, however, support the appellant's contention. The suit out of which the appeal decided in Bharat Singh V/s. Tej Singh (1918) 40 All. 246 arose was one brought under Section 164 against the lambardar and the Full Bench decided that, where a suit had been brought against a lambardar, and he had died during its pendency, the provisions of Sub-section (2), Section 164 had application, and that a decree should be given for sums which had not been collected owing to the negligence or misconduct of the lambardar as against the assets left by him in the hands of his heirs. But this decision in no way overruled the previous decision of a Bench of this Court in Dip Singh V/s. Ram Charan (1906) 29 All. 15 in which it was held that the successor-in-title of a deceased lambardar in a suit which was not brought against the lambardar, but brought after his death was not liable to account for profits which his predecessor had failed to collect or which he permitted to remain uncollected owing to negligence or misconduct. This was also a suit under Section 165. But there, it is to be noted that, the actual lambardar sued was not the lambardar who was guilty of the misconduct and negligence. In that case one lambardar had been negligent and then died and the suit had been brought against another lambardar who had been guilty of no misconduct.

(3.) I read the Full Bench ruling to have application only to suit, under Section 164. This is a suit under Section 165. The descendants of the deceased lambardar are in no worse position than any other co-sharer. The special provision by which a lambardar or his heirs, legal representatives, executors, administrators and assigns are liable for sums remaining uncollected owing to negligence and misconduct does not apply to the defendants here as co-sharers inspite of the fact that they are also the heirs of the lambardar.