1. The land in this mahal appears to have been recorded as the Khud-kasht+ of the lambardar Mangal Khan, and to have borne a nominal rental of Rs. 79-6-0. In 1282 and 1283 Fasli it is stated to have been underlet by him in part or in whole for Rs. 28-6-0, and in 1284 Fasli to have lain follow.
2. This is a suit brought by the plaintiffs as co-sharers in the mahal for Rs. 115-6-0 as their share of the profits on account of the three years above mentioned. The answer is that, in reference to the facts above stated, there were no profits; on the contrary, a small loss. The lower Courts have, however, held him answerable for the rental borne on the rent-roll; and the question for our consideration is whether the view taken by them of his responsibility is correct. It appears that in April 1876, he attempted to get rid of his responsibility by resigning the holding. The Assistant Collector calls it his sir land, whether rightly or not, in reference to the definition in Section 3 of the Rent Act, we have no means of ascertaining. The attempt was disallowed by the Collector. It may be a question whether Section 31 of that Act is applicable to such a holding. The lambardar's position as cultivator of the joint land was not that of an ordinary tenant. His co-sharers in the estate could scarcely have sued him as a tenant for the amount entered in the rent-roll as the rent of the land, or even for a share of it proportionate to their shares in the mahal; although he may have been bound to distribute to them according to their shares the profits realised from it after defraying the expenses of cultivation and paying the Government revenue and village-expenses. Section 209 of the Rent Act provides that, in any suit brought by a co-sharer against a lambardar for a share of the profits, the Court may award to the plaintiff not only a share of the profits actually collected, but also a sum equal to the plaintiffs share in the profits which, through gross misconduct or negligence, the lambardar has omitted to collect. But for this special provision, such an award could not be made in a suit for profits, and it seems very doubtful whether that provision is applicable in the present case. The position of a lambardar who fails to collect rents fixed on lands held by tenants is very different from that of a lambardar who is unable to arrange for the cultivation of lands sometime held by him as khud-kasht. In the present case even were Section 209 applicable, the lower Courts have neither found that more was realised from the land than has been accounted for by the lambardar, nor that the failure to realise more was owing to gross negligence or misconduct on his part. Such being the state of things disclosed by the record, we are of opinion that the decree of the lower Courts cannot be sustained. We accordingly decree the appeal and dismiss the suit with costs in all the Courts.
+ 'Khud-kasht' is the term applied in the N.W. Provinces to lands which the proprietor cultivates himself.