SHUJAUDDIN KHAN Vs. MEHDI RAZA

JUDGEMENT

(1.) This is an appeal by a defendant lambardar against a decree of the lower appellate Court awarding the plaintiff-respondent Rs. 2,569-2-9 for the plaintiff's share of the profits under Section 164, Act 2 of 1901. The plaintiff sued for his share of profits for 1328, 1329 and 1330 Faslis. The plaintiff produced as sole witness the patwari. The patwari gave evidence that the total rent for these years was as follows:

(2.) The figures given in the plaint for the rental for these years were considerably in excess of those stated by the patwari and were as follows:

(3.) The lower appellate Court has accepted the figures stated in the plaint as correct with the exception of a slight variation in regard to the rental assessed on khudkasht for which it accepted the statement of the patwari. In the result, therefore, the lower appellate Court accepted rentals of over Rs. 3,000 for each of the years in suit, a total of approximately Rs. 10,000 rental as compared with Rs. 6,260 0-2 stated by the patwari. The ground on which the lower appellate Court disregarded the evidence of the patwari on this point was firstly that the patwari stated in evidence that the rental for 1328 and 1330 was less than that for 1329 because 1329 was an exceptionally good year and the rental being by batai, variations can easily be made in it from year to year: but on a previous occasion in another suit the defendant lambardar stated that the produce of Fasli 1329 was average. The second reason given by the lower appellate Court is that the patwari in a previous suit had stated "Defendant's mother was not purdah to me and thought me her son." It was no doubt open to the lower appellate Court to find that the evidence of the patwari was not worthy of credit, but it was not open to the lower appellate Court to find that the rental amounted to Rs. 9,955-8-4 without any legal evidence to that effect. We consider, therefore, that this finding of the lower appellate Court must be set aside. There is, therefore, no evidence to show that the rental was more than that stated by the patwari.