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Murli Dhar and ors. Vs. Sita Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.121
AppellantMurli Dhar and ors.
RespondentSita Ram
Excerpt:
agra tenancy act (ii of 1901), section 164, 193 - suit for profits--deficiency in one year cannot be set off against profits in another--cause of action. - - the scheme of the agra tenancy act very distinctly shows that in a suit like the present, the deficit of one year cannot be taken into account in reducing the profits of the succeeding year. section 193, clause (g), enacts that 'no set-off shall be allowed in any suit under this act except a sum due to the defendant on an unsatisfied decree under this act or under any enactment hereby repealed......but one cause of action.' the learned vakil says that as the cause of action for the three years' profits in suit was only one simple cause of action, the deficit in the year 1315 fasli should have been deducted from the profits of the year 1316 fasli inasmuch as it is unfair that a co-sharer should get his share of the profits of one year and should not be liable for the deficit, of the preceding year. the learned vakil for the respondent says as follows: the scheme of the agra tenancy act very distinctly shows that in a suit like the present, the deficit of one year cannot be taken into account in reducing the profits of the succeeding year. if there was deficit, the lambardar, under section 159 of the agra tenancy act, had a right to sue the plaintiff for the arrears of.....
Judgment:

Karamat Husain, J.

1. The plaintiff as co-sharer brought an action against the heirs of a lambardar for his share of the profits for the years 1314, 1315 and 1316 Faslis. It was found that the predecessor-in-title of the defendants was not a lambardar during the year 1314 Fasli and the suit for profits relating to that year was dismissed. In the year 1315 Fasli, there was a deficit of Rs. 339 15 10. The plaintiff's claim in respect of that year also was dismissed, inasmuch as there were no profits in that year. In 1316 Fasli, the amount of profits, it was found, was Rs. 641-0-1. The Court of first instance gave the plaintiff a decree for 1/2 of the profits of that year. On appeal, the lower Appellate Court upheld the decree of the first Court so far as the dismissal of the suit for the profits of the years 1314 and 1315 Faslis and the decree for the share of the profits of the year 1316 Fasil were concerned. It modified the decree of the first Court as regards costs, In second appeal, it is contended for the defendants-appellants that the deficit in the year 1315 Fasli should have been taken into account, and a decree in favour of the plaintiff for 1/2 of the balance after deducting the sum of Rs. 339 15-10 from the sum of Rs. 641-0-1 should have been given. In support of the above contention their learned Vakil relies upon explanation, to Rule 2, Order II, which runs as follows:

For the purposes of this rule, an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.' The learned Vakil says that as the cause of action for the three years' profits in suit was only one simple cause of action, the deficit in the year 1315 Fasli should have been deducted from the profits of the year 1316 Fasli inasmuch as it is unfair that a co-sharer should get his share of the profits of one year and should not be liable for the deficit, of the preceding year. The learned Vakil for the respondent says as follows: The scheme of the Agra Tenancy Act very distinctly shows that in a suit like the present, the deficit of one year cannot be taken into account in reducing the profits of the succeeding year. If there was deficit, the lambardar, under Section 159 of the Agra Tenancy Act, had a right to sue the plaintiff for the arrears of revenue payable to Government through the lambardar by such co-sharer. In a suit under Section 164 of the Act by a co-sharer against the lambardar for a share of the profits of a mahal or of any part thereof, the question of account between the parties does not arise. Section 193, Clause (g), enacts that 'no set-off shall be allowed in any suit under this Act except a sum due to the defendant on an unsatisfied decree under this Act or under any enactment hereby repealed.' It is, therefore, evident that the deducting of the deficit in the year 1313 Fasli from the profits of the year 1316 Fasli, b9ing in the nature of a set-off, cannot be allowed. Regarding the explanation to Rule 2, Order II, his contention is that it simply deals with the question of instituting one suit for one cause of action and provides that no fresh suit shall be brought on the same cause of action for a second time, and that, according to the Explanation, the cause of action in a suit for rent for three years is only one. It does not entitle the lambardar in a suit, under Section 164 of the Agra Tenancy Act by a co-sharer against him, to claim that the deficit of one year should be deducted from the profits of the succeeding year. In my opinion, the arguments advanced by the learned Vakil for the respondent are correct. It is clear that had the plaintiff brought an action for a share of the profits for the year 1316 Fasli only, it would not have been open to the lambardar to plead that there was a deficit in the year 1315 Fasli and that that deficit should be deducted from the profits of the year 1316 Fasli. That being the case, the mare fact that the co-sharer sued him for the two years together does not entitle the lambardar to raise that defence. The view taken by the lower Appellate Court that as there were no profits in the year 1315 Fasli, the claim of the plaintiff regarding that year's profits should be dismissed is, in my opinion, a correct view. For the above reasons, I dismiss the appeal with costs which in this Court will include fees on the higher scale.


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