1. This is a defendant's appeal arising out of a suit for recovery of profits for the years 1342 to 1345 F. for Rs. 135-8-4 by a cosharer against the lambardar under Section 226, Agra Tenancy Act (3 of 1926). Various defences were raised but the. two with which I am concerned at this stage, were that the rents of the years in suit were subsequently remitted under the orders of the Government and, in any case, the suit could be decreed only on the basis of actual collections. The learned Assistant Collector held that subsequent remissions by the Government did not absolve the lambardar from the responsibility of making collections during the years in question. It decreed the suit for a sum of Rs. 98-4-0 on the basis of gross rental minus the actual remissions. The defendants went in appeal to the learned District Judge. He affirmed the finding of the trial Court on both the points. Against the above decree the defendant has come before me in second appeal.
2. Mr. Sanyal, the learned Counsel for the appellant, argues that his client should not be charged for the rents of the years in suit owing to the remissions by the Government. I think the view taken by the Courts below on this question is correct. It was open to the lambardar to make some effort for the realisation of the rent during the years in suit and on the findings it cannot be doubted that he made none. To allow the defendant to take advantage of this plea is to put a premium on his own negligence.
3. The next contention of Mr. Sanyal is that the account books which he had produced were all that he was called upon to produce under the law as it stood on the material date and the Courts below were wrong in insisting upon his complying with the provisions of Section 232 inasmuch as this section found a place for the first time in the Act of 1939 which came into force long after the years in question. He also contends that it is for the plaintiff to establish the negligence of the lambardar. I agree with him that it is for the cosharer who brings a suit for accounts to establish the negligence of the lambardar. I also agree with him that the account books produced by him need not have complied with the provisions of Section 232, U.P. Tenancy Act of 1939. But this did not absolve him from the obligation to produce before the Court account books which commanded the confidence of the Court and which were genuine. The finding of the Court, as I read it, is to the effect that there was discrepancy between the sinha prepared by the patwari and the amount of the collections shown in the defendant's account books. This proves, if anything, that the learned Judge of the Court below did not accept the account books of the defendant as good and reliable. Whether the account books were good and genuine account books and such as commanded the confidence of the Court is a pure question pi fact on which the finding of the lower appellate Court must be accepted and, sitting in second appeal, I cannot say that the learned Judge was wrong in rejecting the defendant's account books.
4. It is also argued by the learned Counsel for the appellant that he should not have been saddled with the sum due on account of the sir and khudkasht in the hands of the other cosharers. In support of this proposition he has relied upon Koka v. Chunni : AIR1927All623 There are certain observations in this judgment which, no doubt, lend countenance to his contention, but this case is in the teeth of the earlier case, Ganga Singh v. Ram Sarup ('16) 3 A.I.R. 1916 All. 155 and also Kundan Lal v. Basant Rai ('24) 11 A.I.R. 1924 All. 935 Indeed, the attention of their Lordships was invited in Koka v. Chunni : AIR1927All623 , to both these cases but they were of opinion that the point did not emerge quite clearly from the judgment at least, in Ganga Singh v. Ram Sarup ('16) 3 A.I.R. 1916 All. 155. With the utmost respect to their Lordships I must say that my reading of this ruling leads me to a different result. I find that the real basis of their decision was that in a suit for accounts the lambardar is liable for the profits accruing from the sir and khudkasht in the hands of the other cosharers. If it is permissible to say so, again with profound respect, my own view is in consonance with the view taken in Ganga Singh v. Ram Sarup ('16) 3 A.I.R. 1916 All. 155. I, am fortified in this view of mine by a later pronouncement of Bennet J. in Sohanpal Singh v. The Special Manager, Court of Wards of the Estate of Amir Begum : AIR1937All113 These are the only points which have been raised in this case. I, therefore, dismiss this second appeal but under the circumstances of the case I make no order as to costs.