BHAEAT INDU Vs. SYED MOHAMMAD MUSTAFA KHAN

JUDGEMENT

(1.) THIS appeal is connected with Second Appeals Nos 103 and 104 of 1017. They arise out of suits for profits brought against the Lambardar. It appears that the plaintiffs purchased a certain share on the 22nd of January 1912, and that under their purchase they were entitled to arrears of profits. The defendant was appointed Lambardar on the 5th of February 1913. The plaintiffs claim Profits for Kharif of 1320 and Rabi and Kharif in subsequent years. The Court of first instance granted the plaintiff a decree except in respect of Kharif of 1320. The plaintiff appealed and contended that the expenses allowed by the first Court were ton great and that the percentage on the gross rental allowed to him was too little. We also contended that he ought to have got a decree in respect of the Kharif of 1320. The lower Appellate Court upheld the (decision of the Court of first instance on all points and dismissed the appeals. We may say at once that we agree with the Courts below, save in so far as they dismissed the plaintiff s claim in respect of the Kharif of 1320. The ground upon which both the Courts dismissed the plaintiff s claim in respect of Kharif of 1320 was because the defendant had not been appointed Lambardar when the rents of Kharif 1320 fell due. THIS view is, in our opinion, not correct. If the defendant after he had become Lambardar collected the rents for Kharif 1320, he would be liable to the plaintiffs notwithstanding that he had not been appointed Lambardar when the rents actually fell due. if he had actually realised the rents, he would be liable for the amount so realised. If he had only recovered decrees he would be liable for the amount realised under those decrees or for the ascertained value of the decrees. Before deciding the appeals we refer the following issues to the Court below: (1) Did the defendant realise any sums, and if so, how much in respect of Kharif 1320. Were these turns realised after he bad been appointed Lambardar? (2) Did the defendant obtain decrees after be had become Lambardar in respect of Sharif 1320? If so, how much has been realised on foot of these decrees or might by reasonable diligence have been realised? (3) As the result of the findings on these issues, how much, if anything, is due to the plaintiffs in respect of their shaves of the Kharif of 1320?

(2.) THE parties may adduse evidence relevant to these issues. On receipt of the findings the usual ten days will be allowed for filing objections.