BADRI PRASAD Vs. GIRDHAR

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit brought by them for their share of the profits against the defendant lambardar under Section 164 of the Agra Tenancy Act. The claim was with respect to 1325 to 1328 Faslis. The suit has been dismissed by both the Courts below. The plaintiffs claimed profits on the basis of gross rental. This has not been allowed by either of the Courts below.

(2.) In appeal before me, two points have been argued by the learned Counsel for the appellants. In the first place it is argued by him that the collections made by the lambardar in the years in suit represented a very small percentage of the rents actually due from the tenants, and as such the lower appellate Court ought to have presumed that it was due to the negligence of the defendant lambardar that a large percentage of the rents remained uncollected and, in view of the provisions of Clause (2) of Section 164 of the Agra Tenancy Act, ought to have passed a decree in the plaintiffs favour on the basis of gross rental. The second point argued by the learned Counsel is that even according to the accounts made by the patwari and accepted by the Courts below, a sum of Rs. 41-8-9 was due to the plaintiffs with respect to 1328 Fasli, and, in any case, a decree for that amount ought to have been passed in the plaintiffs favour.

(3.) In my opinion, there is no force in either of the contentions advanced by the learned Counsel. The lower appellate Court has given due weight to the fact that the collections made by the lambardar were not good, but has come to the conclusion that the presumption, if any, arising in favour of the plaintiffs by the fact of the collections not being good, was counter-balanced by certain other facts that have been noticed by the lower appellate Court in its judgment. The mere fact that a large proportion of the rents remained uncollected does not necessarily lead to the inference that the lambardar was negligent, vide the case of Jodhi Ram v. Kaunsilla A.I.R. 1922 All. 111. I am not unaware of the cases in which it has been held that the fast of a large proportion of the rents having remained uncollected coupled with certain other facts may raise a presumption that the lambardar was negligent. Two of such cases are the cases of Mithan Lal V/s. Mizaji Lal [1912] 10 A.L.J. 529 and Shiva Chander Singh V/s. Ram Chander Singh [1915] 37 All. 595. But in every one of those cases there were certain other facts, apart from the mere fact of a large proportion of the rents having remained uncollected, from which the Court presumed negligence on the part of the lambardar. In the present case, apart from the fact that the collections made by the lambardar did not represent a high percentage of the actual amount due from the tenants, there were no other facts from which his negligence could be presumed. On the contrary there were facts that accounted for the failure of the lambardar to realise an amount greater than that actually realised by him.