SHYAM LAL Vs. SUNDAR LAL

JUDGEMENT

(1.) This is a defendant's appeal against concurrent decrees of the Courts below passed in favour of the plaintiff. The plaintiff, Lala Sunder Lal, brought this suit against the defendant, Shyam Lal, for profits for part of the year 1337F and for 1338 F. It was the plaintiff's case that he was a co-sharer in a village called Gazipur Bharatpur of which the defendant was the lambardar. According to the plaintiff's case there were good, crops during the year in question and the, tenants were not defaulters. It was alleged that the defendant lambardar had not paid to the plaintiff the plaintiff's due to him and he claimed in this suit that he should be paid profits for the years in suit on the basis of gross profits. The defendant contested the suit on a number of grounds. In the first place, he denied that the plaintiff was entitled to profits for any part of the year 1337 Fasli or for part of 1338 Fasli, because during that period he was not recorded as a co-sharer. The defendant has also contended that during the years in question, crops had been bad and that the tenants were wholly unable to pay any rent to the lambardar. In short, it was the lambardar's case that he had realized as much rent as could possibly have been realized from the tenants I of this village during the years in question. Both the Courts below have come to the conclusion that the plaintiff was entitled to sue for profits for the whole of the period in question, though he was not recorded as a co-sharer for a part of such period. Both the Courts have also held that the defendant lambardar was guilty of negligence and that therefore he must account for profits upon the basis of gross rental.

(2.) Both the Courts allowed the lambardar a deduction of 8 per cent, only in respect of collection expenses. Against the decree of the lower appellate Court confirming the decree of the Court of first instance the defendant has preferred this second, appeal and has urged before me the same contentions as were urged before the Courts below. In the first place, it has been contended that the plaintiff could not possibly recover profits for any portion of the year 1337 Fasli or for a part of the year 1338 Fasli. The plaintiff was an auction-purchaser who purchased the share of an admitted co-sharer in this village on 23 April 1930. The sale was duly confirmed and mutation was made in the name of the plaintiff-purchaser on 30 September 1930. It is the defendant's case that the plaintiff could not recover any profits for the period between 23 April 1930 and 30 September 1930 during which he was not recorded as a co-sharer but on the contrary his vendor was so recorded. The 1337 Fasli year ended on 30 June 1930 and if the defendant's contention be correct, then the plaintiff could not recover any profits for the year 1337 Fasli. Further, if the defendant's view be correct, he could not recover any profits for 1338 Fasli for the period 1 July 1930 to 30 September 1930. It is conceded that after 30 September 1930 the plaintiff was entitled to sue for profits.

(3.) This denial of the plaintiff's right to sue for profits for 1337 Fasli and part of 1338 Fasli was raised in the Court of the Assistant Collector and he in accordance with Section 271, Agra Tenancy Act, framed an issue and sent the same to the civil Court for determination. The civil Court held that the plaintiff was entitled to sue for profits for 1337 F and 1338 F and the revenue Court accepted this finding as it was bound to do. On appeal, the learned District Judge also held that the plaintiff was entitled to sue for profits from the date of the sale and therefore could claim profits for 1337 P and the whole of 1338 F. It has been urged before me that the view taken by the lower appellate Court cannot be sustained, and reliance has been placed upon the case in Mohammad Abdul Jalil Khan V/s. Ubaid Ullah Khan . In that case it was held that no suit for profits against a lambardar lay at the instance of an owner who had been dispossessed by other people whose names were recorded in the revenue papers. Such owner was bound to obtain possession through the civil Court against the trespassers before he could maintain a suit for profits and the lambardar was bound only to pay him profits from the date when he obtained possession in execution of a civil Court decree, as the lambardar's liability to pay profits was to the persons who were in possession and whose names were recorded in the revenue papers. In my judgment, the present case is clearly distinguishable from the case of Abdul Jalil Khan V/s. Ubaid Ullah Khan to which I have referred. In the present case there is no question of the plaintiff having been dispossessed by any one and no other person has made a claim to the profits. The present plaintiff is an auction-purchaser and his rights are governed by Section 65, Civil P.C., which provides: 65. Where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.