BHAGWATI SARAN Vs. DEO SARAN SINGH

JUDGEMENT

(1.) These second appeals arise of two suits for profits brought by the plaintiff- appellant against one Matabadal, Iambardar, under Section 164, Tenancy Act. During the pendency of the suit Matabadal died, and the name of his son Deosaran was substituted as defendant on the allegation that he was the legal representative of his father Matabadal Singh, lambardar. Both suits were decreed by the Assistant Collector on the basis of gross collection, there being a finding that the lambardar had shown negligence in collection. This finding was based on the fact that his collection resulted in there being Rs. 200 for division among the cosharers, whereas collection of the total sum recorded as rental would have made no less than Rs. 2,565 available for division. It was also found by the trial Court that the deceased lambardar Matabadal had filed about half a dozen suits for arrears of rent, but that these too had been withdrawn by his son, presumably at a later date when the son was appointed lambardar. The Assistant Collector also decreed against the defendant profits on the basis of what the lambardar could have collected from tenants of the sir and khudkasht land of particular cosharers.

(2.) In appeal the District Judge of Benares held that the evidence did not justify a finding of negligence, that there was no sufficient evidence to show that the lambardar was the agent of the cosharers generally for the collection of rent in respect of khudkasht and sir lands. He accordingly reduced the decree to a decree based on actual collections from the lands other than sir and khudkasht.

(3.) The plaintiff has appealed. The first ground of appeal argued before me is that the lower appellate Court invoked evidence which was not relevant to the matter in order to rebut the allegation of negligence. Reference is specifically made to the District Judge's remark that collection was difficult because of the pendency of partition proceedings. It is urged that the partition proceedings had not commenced during the years in respect of which this suit was brought. To this objection there are two replies. The District Judge has not stated that partition was pending during the years in respect of which the claim was brought, His point is that at the time of writing his judgment in appeal "there is a partition" pending. He goes on to say "this almost always leads to difficulties in rent collection." The remark is loose. He was not dealing with difficulties in rent collection of the future, but during the years in respect of which the claim was made. His meaning must, however, be that, where you find a partition suit had been brought, it indicates disagreement between the cosharers precedent to the date when suit is brought.