(THAKUR) ISHRI SINGH Vs. TEJBIR SINGH

JUDGEMENT

(1.) This is a second appeal by a plaintiff lambardar whose suit for arrears of revenue under Section 159 of the former Agra Tenancy Act, Act 2 of 1901, has been dismissed by both the lower Courts on the ground that the plaintiff had not proved that the amount of revenue which he paid on behalf of the defendant was paid from his own pocket. The plaintiff and defendant are full brothers and were members of a joint Hindu family up to the end of Fasli 1327, when a partition took place by a registered deed dated 14 April 1920. This deed provided that from that date the parties would be entirely separate and would realize their rents from their separate tenants and would pay their revenue separately. Kuras were prepared and the property was divided plot by plot. No provision was made in the deed for arrears of rent due before the partition which would be collected subsequent to the partition. Ishri Singh, the plaintiff, was the lambardar of the mahal in which he and his brother were the sole cosharers, and he continued to be lambardar for both of the pattis of the whole mahal until F. 1331 when the defendant respondent was appointed lambardar for his patti on 13 March 1924. It is found by the lower appellate Court and admitted that during the years in suit 1328, 1329 and 1330 Fasli the plaintiff-appellant paid the share of land revenue due from the respondent-defendant as well as his own share. The deed had provided that the defendant-respondent would pay his own share of revenue but he neglected to do so and the plaintiff-appellant as lambardar was bound to make the payment in the first instance. The plaintiff-appellant has now sued under Section 159, Act 2 of 1901 to recover those payments of land revenue which he made on behalf of the defendant-respondent. The first issue framed by the trial Court was: did the plaintiff pay the amount claimed from his own pocket?

(2.) The lower appellate Court has found as a fact that there were arrears outstanding at the beginning of P. 1328 which amounted to Rs. 2,133 of which Rs. 212 were time barred, and the plaintiff had decrees for Rs. 241. There was therefore at that date a sum of Rs. 2,162 realizable arrears, of which during the year F. 1338 the plaintiff admittedly realized Rs. 316 odd for arrears of previous years including a sum of Rs. 29-6-6 which definitely belonged to the defendant. The plaintiff therefore should have paid defendant Rs. 143-9-6 plus 29-6-6, i.e. Rs. 173. No further facts were proved in regard to collection of arrears. The sum claimed as land revenue, lambardari dues and cesses for the 3 years in suit is Rs. 402-8-0 per annum, total Rs. 1207-8-0 principal. It is obvious that the evidence produced merely shows that a very small sum of arrears was collected by the plaintiff and by no means a sum equal to the land revenue admittedly paid by the plaintiff on behalf of the defendant. The question which we have to consider is whether under the circumstances of this case the onus lay on the plaintiff to prove his collection of arrears and to prove whether he had paid the whole sum claimed out of his pocket. It is to be noted that after the partition the plaintiff had no duty or right to make collections from tenants on behalf of the defendant nor is it found by the lower appellate Court that he did make any such collections for the years in suit. The lower appellate Court has relied on a ruling reported in Dharam Pal v. Madan Mohan [1892] A.W.N. 72 and the lower appellate Court has quoted the heading which states: in a suit by a lambardar against a cosharer to recover the cosharer's portion of Government revenue paid by the lambardar, it lies upon the plaintiff to show that he had in his capacity of lambardar exercised due diligence in the collection of rents.

(3.) But the ruling states: in the village the lambardar only had power to collect the rants. Out of those rents it was his duty to pay so far as they would go the Government revenue and the village expenses, In the present case it was for the lambardar to show that he had performed his duty as lambardar, and that notwithstanding the exertion by him of due diligence, he was unable to collect sufficient rents with which to discharge the Government revenue.