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Bharat Indu and ors. Vs. Syed Muhammad Mustafa Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1919All392; (1919)ILR61All316
AppellantBharat Indu and ors.
RespondentSyed Muhammad Mustafa Khan
Excerpt:
lambardar and co-sharer - suit for profits lambardar appointed after some of the rent in respect of which the suit was brought had become due--liability of lambardar. - .....in respect of kharif of 1320 was because the defendant had not been appointed lambardar when the rents of kharif 1320 fell due. this view is, in our opinion, not correct. if the defendant after he had become lambardar collected the rents for kharif 1320 he would be liable to the plaintiffs notwithstanding that he had not been appointed lambardar when the rents actually fell due. if he had actually realized the rents he would be liable for the amount so realized. if he had only recovered decrees he would be liable for the amount realized under those decrees or for the ascertained value of the decrees. before deciding the appeals we refer the following issues to the court below.(1) did the defendant realize any sums, and if so, how much, in respect of kharif 1320? were these sums.....
Judgment:

Henry Richards, Kt., C.J. and Pramada Charan Banerji, J.

1. This appeal is connected with Second Appeals Nos. 103 and 104 of 1917. They arise out of suits for profits brought against the lambardar. It appears that the plaintiffs purchased a certain share on the 22nd of January, 1912, and that under their purchase they were entitled to arrears of profits. The defendant was appointed lambardar on the 5th of February, 1913. The plaintiff's claim profits for kharif of 1320 and rabi and kharif in subsequent years, The court of first instance granted the plaintiff a decree in respect of kharif of 1320. The plaintiffs appealed and contended that the expenses allowed by the first court were too great and that the percentage on the gross rental allowed to them was too little. They also contended that they ought to have got a decree in respect of the kharif of 1320. The lower appellate court upheld the decision of the court of first instance on all points and dismissed the appeals. We may say at once that we agree with the courts below save in so far as they dismissed the plaintiffs' claim in respect of the kharif of 1320. The ground upon which both the courts dismissed the plaintiffs' claim in respect of kharif of 1320 was because the defendant had not been appointed lambardar when the rents of kharif 1320 fell due. This view is, in our opinion, not correct. If the defendant after he had become lambardar collected the rents for kharif 1320 he would be liable to the plaintiffs notwithstanding that he had not been appointed lambardar when the rents actually fell due. If he had actually realized the rents he would be liable for the amount so realized. If he had only recovered decrees he would be liable for the amount realized under those decrees or for the ascertained value of the decrees. Before deciding the appeals we refer the following issues to the court below.

(1) Did the defendant realize any sums, and if so, how much, in respect of kharif 1320? Were these sums realized after he had been appointed lambardar?

(2) Did the defendant obtain decrees after he had become lambardar in respect of kharif 1320? If so, how much has been realized on foot of these decrees or might by reasonable diligence have been realized?

(3) As the result of the findings on these issues, how much, if any thing, is due to the plaintiffs in respect of their shares of the kharif of 1320?

4. The parties may adduce evidence relevant to these issues. On receipt of the findings the usual ten days will be allowed for filing objections.


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