1. This is a plaintiff's appeal arising out of a suit for profits brought against the lambardar. The case has not been fully appreciated by the Courts below. The plaintiff alleged that the lambardar was most negligent and was guilty of misconduct. In the written statement this assertion was denied, but in para. 6 it was expressly admitted that the defendant sent a notice to the plaintiff asking him to adjust the accounts, but the plaintiff failed to do so Afterwards a money order was sent which also was returned The profits were sent to the plaintiff with reference to the amounts realised. The money order receipt was actually filed by the defendant which shows that a sum of Rs. 73 was sent by money order to the plaintiff. There can be no doubt that in the written statement it was clearly admitted by the plaintiff that on account of the amount realized by the defendant a sum of money was due to the plaintiff which was actually sent by money order and which was refused. Both the Courts below have held that in spite of the fact that out of Rs. 1,732-8-1, which was the annual rental, the defendant according to the patwari's register collected only Rs. 531-8-2 in the year 1325 Fasli, the plaintiff had not proved any negligence. The learned Judge has even gone so far as to remark that, the fact that the written statement does not claim that there was a loss, does not entitle the plaintiffs to a decree. Prima facie when the collection is grossly inadequate, there is a presumption of negligence.
2. In this case, however does appear that in the year 1326 Fasli there was a famine which circumstance might have justified the Courts below in coming to the conclusion that negence is not proved. After some hesitation therefore I feel that I must accept the finding that negligence has not been proved, but what the Courts below have done is to accept the entries in the patwari's register as to the total amount collected, although the defendant did not produce his accounts as he was bound to do. The liability of the defendant to maintain account has been pointed out by Tudball J., in the case of Raghubar Charan v. Krishen Baldeo AIR 1915 All 82. A patwari's register very often doss not show the amounts of decrees realized and also sometimes does not contain all the collections made as entries are made on dictation by the zamindar or his agents. In the absence of any accounts filed by the defendant it was therefore unsatisfactory to accept the patwari's register as the conclusive evidence of the total collections. However no useful purpose is likely to be served by remanding the case and I allow the appeal and modify the decree of the Courts below to this extent that I decree the plaintiff's claim for a sum of Rs. 73 which was admitted to have been offered to the plaintiff. The Judge has wrongly stated the amount to be Rs. 72 which was the amount sent by the plaintiff. The parties should bear their own costs of this appeal.