1. Parties to the suit giving rise to this appeal are cosharers in mahal, Dwarka Prasad, village Sumerpur, pargana Akberpore District, Cawnpore. The plaintiffs sued the defendant who is the lambardar of the mahal for recovery of Rs. 225 odd, being principal (Rs. 192) and interest (Rs. 33 odd), as their share of profits for the years 1328 to 1331 Fasli. The claim for 1331 Fasli was subsequently dropped as it was discovered to be premature. The Court of first instance decreed the plaintiffs' claim for Rs. 98-2-0 for the years 1328 to 1330 Fasli carrying interest as claimed. This amount was found to be the plaintiffs' share or profits calculated on gross rental.
2. The main pleas in defence which were urged before this Court are (1) that the rental of the plots 103 and 106 with an aggregate area of 6 bighas 5 biswas should be set apart as exclusively belonging to the defendant under a deed of relinquishment, dated 8th November 1888, executed by the predecessors-in-interests of the plaintiffs and (2) that the profits should be calculated on the basis of actual collections. The Court of first instance overruled both of these pleas but on appeal by the defendant the learned District Judge gave effect to the second reducing the amount decreed to Rs. 36-10-0.
3. The defendant has appealed to this Court as regards the first of the pleas and the plaintiffs have filed cross-objections in respect of the second. The deed of relinquishment, dated 8th November 1888, evidences, in my opinion no more than an arrangement entered into by cosharers adjusting their claims against each other regarding the enjoyment of common lands in proportion to their shares. The deed was executed by Bikram and others who, it is admitted are now represented by the plaintiff-respondents in favour of Hemanchal and Lachhman, predecessor-in-interests of the defendant-appellant. It recites that the common sir land amounting to 45 bighas 14 biswas was recorded in the names of Hemanchal and Lachhman out of which three plots... 105, 111 and 112 were held rent-free by the mother of the executants in lieu of her maintenance. To compensate Hemanchal and Lachhman, plots 103 and 106 were set apart for them rent free. It does not appear that the plots in lieu of which the two plots in question were thus allotted to defendant's predecessors-in-title continue to be held by the lady referred to in the deed; it is very likely that they ceased to be so held long ago and thereafter they became part of common lands, in which case the arrangement embodied in the deed of relinguishment would automatically fall through. It is not suggested by the defendant-appellant that plots 105, 111 and 112 are now held in severalty by the plaintiffs so as to entitle the defendant to hold plots 108, 106 as his, exclusive holding in lieu thereof. The Court of first instance has referred to a number of circumstances on which it based the conclusion that the document was not 'acted upon.' The learned District Judge thinks in view of those circumstances that
if it was acted upon, it must at some time have fallen into abeyance.
4. In other words the arrangement is not a subsisting one. Some of the circumstances which led to this finding are that a partition was made after 1888 and that portions of these plots are in possession of other cosharers some of whom have parted with their proprietary rights retaining only exproprietary tenant's rights. There is no evidence that in making up accounts of profits in previous years these plots were treated as exclusive holding of the defendant. In view of these circumstances I think the lower Courts have rightly rejected the defendant's plea. '
5. The defendant has raised in his appeal a subsidiary question as to costs of collection and claims the salary of a peon. This is out of all proportion to the entire rental of the mahal. The lower Courts have suitably dealt with this matter. I do not see any reason to interfere with their order on this comparatively unimportant matter.
6. The plaintiffs have preferred cross-objections claiming their share of profits on the basis of gross rental. Ordinarily accounts between cosharers of a mahal are settled on the basis of actual collections. Section 164 (2), Tenancy Act, however, provides that in a suit for profits
the Court may award to the plaintiff not only a share of the profits actually collected, but also of such sums as the plaintiff may prove to have remained uncollected owing to the negligence or misconduct of the defendant.
7. It is contended that the plaintiffs should prove that a particular sum remained uncollected owing to gross negligence or misconduct of the defendant. It is true that the initial onus lies on the plaintiff in such a suit, but such onus may be discharged by proof of circumstances from which gross negligence or misconduct may be inferred. It will then be for the defendant to explain by satisfactory evidence that his inability to collect is referable to some excusable cause. The facts found or admitted in this case clearly shift the burden of proof on the defendant. 30 per cent of the rental is said to have remained uncollected during normal years. He has not produced any accounts. No suits for arrears of rent were brought. No proceedings of distraint were taken. The patwari whose evidence has been believed states that the tenants of this village are good pay masters. The defendant has offered no explanation as to why he failed to collect this large percentage of rent if he made reasonable efforts to make collections. I think that Mithan Lal v. Mizaji Lal  10 A.L.J. 529 is applicable to the facts of this case and that the Court of first instance took the right view in decreeing profits on the basis of gross rental. The cross-objections must, therefore prevail. The decree of the lower appellate Court is set aside and that of the Court of first instance is restored. The appellant must pay his own costs and those of the plaintiff-respondents awarded by the Court of first instance and also those incurred by them in this Court and the lower appellate Court.