John Stanley, C.J. and George Knox, J.
1. This appeal arises out of a suit for profits brought against a lambardar. The profits claimed are for the years 1307, 1308 and 1309 Fasli. Dhanuk Singh was the lambardar for the years 1307 and 1308 and also part of 1309 Fasli. He died in the year 1309 and was succeeded by the defendants in the present litigation. The Court of first instance settled, amongst other issues, the following issue: 'Whether the defendants are liable to pay profits on the basis of jamabandi or of actual collections for the period of their own incumbency as well as of their predecessor Dhanuk Singh.' Upon this issue he found that under Section 164 of the North-Western Provinces Tenancy Act the defendants were liable to pay profits, not merely in respect of the collections in the time of Dhanuk Singh on the basis of the actual collections, but in respect of sums which remained uncollected owing to the negligence or misconduct of Dhanuk Singh. He found that there was negligence and misconduct in the collection of rents by Dhanuk Singh and on this basis fixed the amount for which the defendants were responsible. On appeal the learned District Judge accepted the view of the law propounded by the Court of first instance and dismissed the defendant's appeal.
2. We are of opinion that that view is erroneous. Section 164 enables a co-sharer to sue a lambardar for his share of the profits of the mahal, and Sub-section (2) enables the Court in any such suit to award to the plaintiff not only a share of the profits actually collected but also of such sums as the plaintiff may prove to have remained uncollected owing to the negligence or misconduct of the defendant. It is to be noticed that the negligence or misconduct here referred to is the negligence or misconduct of the defendant, not of the lambardar. In Section 166 the word 'lambardar' is defined as including 'heirs, legal representatives, etc., of the lambardar' and the Courts below have put the interpretation upon the word 'defendant' as used in Section 164 as meaning the lambardar who is the defendant in the suit, or the lambardar of whom he is the representative. At first sight it might appear that the heir or representative of the lambardar would be so liable in respect of the negligence or misconduct of his predecessor in title, but if this had been the intention of the Legislature, we should expect to find in Sub-section (2) instead of the word 'defendant' the word 'lambardar'. That word does not occur in Sub-section (2) of Section 164. We are therefore of opinion that the successor in title of a deceased lambardar is not liable to account for profits which his predecessor may have failed to collect or which he permitted to remain uncollected owing to negligence or misconduct.
3. This being so, as the learned District Judge has decided the case upon this preliminary point, and we are unable to agree in the view which he has taken, we allow the appeal, set aside the decree of the Court below, and under the provisions of Section 562 of the Code of Civil Procedure, remit the appeal to that Court with directions that it be reinstated in the file of pending appeals in its original number and be disposed of on the merits. The defendants appellants will have the costs of this appeal. All other costs will abide the event.