1. The two Appeals NOS. 166 and 172 of 1919 are connected and arise out of a suit brought by Musammat Srimati Kirpa Devi against Lala Ramchandra Sarup for the recovery of her share of the profits for the years 1320 to 1322 Fasli. The suit was instituted in the Court of the Assistant Collector of Meerut on the 31st July 1916 and it was alleged by her that the defendant Ramchandra Sarup was the Lambardar of the village Khadela and had been negligent in collecting the rents and, therefore, she was entitled to recover her share of the profits on the gross rental and not on actual realisation. She claimed Rs. 7,146-0-4 which sum included interest also. The claim was resisted on various pleas. It was urged on behalf of the defence that there was a written agreement executed between the parties on the 31st December 1914 under which all disputes outstanding between them were to be decided by one Babu Madusudan Dayal, and that as the greater portion of the claim relates to a period antecedent to the 31st December 1914 the claim of the plaintiff fails. It was further urged that, as a matter of fact, Ramchandra Sarup had 'referred not only the question of the amount of the share of profits due to the plaintiff, but other matters outstanding between her and himself to the arbitrator, who was considering the points in dispute when the plaintiff rushed into Court with the present suit, The defendant claimed a large amount on account of village expenses and stated that, under the agreement of the 31st December. 1914, no interest was to be charged by either party on any account. The learned Assistant Collector, accepting the plea of the defense based upon the agreement of the 31st December 1914, referred the dispute to Babu Madusudan Dayal. For some reason the arbitrator did not decide the case and sent back the file to the Court. The case was tried and evidence was recorded. The lower Court passed a decree in favour of Kirpa Devi for Rs. 5,018-13-9, allowing her interest at the rate of 12 per cent. per mensem up to the date of the institution of the suit and 6 per sent, per annum pendente lite and after the decree until such time as the decree was realised.
2. Both parties have some up in appeal before us. The appeal of Ramchandra Sarup is No. 166 of 1919 and that of Kirpa Devi No. 177 of 1919. We shall dispose of both the appeals by this judgment.
3. It is contended on behalf of Ramchandra Sarup that the lower Court was in error in decreeing the claim of the plaintiff on gross rental and not on actual collections. It appears from the evidence on the record' that Ramchandra Sarup made all attempts that a careful Lambardar could make to realise rents. The amount of the actual collections shows that he realised 76 per cent. With regard to the rest brought suits and obtained decrees against defaulting tenants.
4. It is urged on behalf of Kirpa Devi that the suits were brought too late and that hardly anything or nothing at all has been realised on the decrees.
5. We have examined some of the decrees on the record and we find that the charge of delay against Ramchandra Sarup is without any foundation. As to the realisation of the decrees, we find from the report of the kurk Amin that he once proceeded to execute the decrees but found several judgment-debtors absent, and in some cases there was nothing to attach. The fact that some of the decree cannot be realised is no fault of the Lambardar nor can it be said to constitute negligence. We are, therefore, of opinion that no negligence of the Lambardar in the collection of rents has been proved by Kirpa Devi and that the decree in her favour should proceed on the basis of actual collections.
6. The next point urged by the learned Counsel for Ramchandra Sarup is that his client was not a Lambardar for 1320 Fasli and that he collected rents of that year to the extent of his share only. He should not, therefore, be made to pay anything on account of the share of Kirpa Devi. There is no force in this argument as his own principal witness, Phundan Lal, deposes that Ramchandra Sarup made collections in the entire village for the year 1320 Fasli.
7. The next objection to the decree of the Court below is directed to interest). The objection is taken on the basis of the agreement of the 31st December 1914. There is no forte in the objection. That agreement is no more in force between the patties.
8. There is also an objection with regard to interest on behalf of Kirpa Devi in her Appeal No. 177 of 1919. She contends that 12 per cent. per annum should have been allowed to her till the date of the realisation of the decretal amount. We find that that is the proper rate in a case like the present and that her objection must prevail.
9. For Ramchandra Sarup it is further contended that he should have been allowed costs of the repairs of a well and of a haveli and other items of village expenses detailed by him in his written statement. We find that the items in question have not been proved by any reliable evidence. In our opinion he should be allowed Lambardari dues and 5 per cent. on the actual collections for village expenses.
10. There is one more objection to be noticed and that is on behalf of Kirpa Devi in her appeal. She says that her share of the profits for 1317-1319 Fasli should also be decreed to her on the ground that it was collected in 1320 Fasli, As we are going to decree her claim on the basis of actual collections, this objection has no force.
11. The result of our findings is that the plaintiff, Musammat Kirpa Devi, should get a decree for her share of profits on the basis of actual collections for the years in suit together with 12 per cent. per annum interest from the date that each instalment fell due to her up to the date of the realisation of the amount. The- defendant, Ramchandra Sarup will get Lambardari dues' and 5 per cent. for village expenses on the actual collections. The account, therefore, stands thus. We take the statement prepared by the patwari as the basis of actual collections. Taking that paper as our basis, we find that the following sums are due to Kirpa Davi, namely,
for 1320 Fasli ... Rs. 1,2923.10
' 1321 Fasli ... ' 578.80
' 1322 Fasli ... ' 1,370.00
12. There are the net amounts. We have deducted the Lambardari dues and the village expenses. The total of these amounts comes to Rs. 3,240 11 10. We, therefore, modify the decree of the Court below and decree the claim for the plaintiff, Kirpa Devi, for Rs. 3,240 11 10 with interest at 2 per cent. per annum from the date of each kist up to the date of the realisation of the amount.
13. Costs are allowed to parties of both the Courts in proportion to failure and success including fees in this Court on the higher scale.