1. This is an appeal by the plaintiffs in a suit for arrears of profits claimed against the deceased defendant, Hanutman Singh, who is now represented in this appeal by his sons.
2. The claim was, according to the plaint, a rough estimate of the profits, the plaintiffs being usufructuary mortgagees, who were never before acquainted with the village. The plaintiffs clearly said in the plaint that if the profits were found to be larger than had been claimed in the plaint, they would pay additional court-fee for the sum found really due to the plaintiffs. The defence was that the Jambardar had made certain collections, and the plaintiffs should have only their share, which was 5 annas in the village. The Court of first instance granted a decree for Rs. 4,2iO with costs and interest.
3. The defendant appealed, and the plaintiffs filed a cross-objection.
4. The learned District Judge reduced the amount of the decree to the sum of Rs. 2,175-12-3.
5. In this Court the plaintiffs have filed an appeal, and the defendant has filed a cross-objection.
6. The points that have been raised by the parties are as follows : (1) whether a 10 per cent deduction on the gross income was properly allowed by the Courts below as probable arrears; (2) whether the amount of the chari income had been rightly estimated by the learned District Judge at Rs. 800; (3) whether the claim for weighment dues should have been allowed by the learned District Judge; (4) whether the Court below was wrong in levying additional court-fees on the grounds of cross-objection filed by the plaintiffs and (5) whether the village expenses have been estimated at too low a figure.
7. The first point arises in this way : the Courts below are agreed that the lambardar has not shown in his books the actual realizations and that his books are extremely unreliable and misleading. The Courts below were agreed that the plaintiffs were entitled to a share of the gross rental and other income, but have allowed what they call a rebate of 10 per cent' as covering the possible arrears in the collections.
8. It is on foot of the new Tenancy Act that the learned Judges of the Courts below have allowed what they have called a 'rebate'. Before the Tenancy Act of 1926 was passed the decree used to be against the lambardar, where his negligence in collections was proved, upon the basis of the gross income of the village without any deduction.
9. Paragraph 3, Section 226, Tenancy Act, runs as follows:
In any such suit (suit for arrears of profits) the burden of proving the amount collected shall be on the lambardar, and where he fails to discharge it the Court may presume that the profits have been collected in full, or with such deduction on account of unrealizable a rrears as it considers reasonable.
10. It is on account of the words underlined (italicised) above that the Courts below have allowed a rebate.
11. There can be no doubt that it is open to a Court hearing a suit for settlement of accounts and profits to make estimate of unrealizable arrears, and to give the lambardar the benefit of that estimate. But we think that the estimate should be based on some evidence which can be acted upon and the deduction should not be merely conjectural for in that case, it will be impossible to say why the deduction should not be say, 25 per cent instead of 10 per cent.
12. In this particular case before us the Courts below have not given any reason whatsoever for making a 10 per cent deduction as unrealizable income. The learned District Judge, it appears thought that the Court of first instance had shown leniency to the defendant by allowing a rebate. At p. 30, lines 41-43 the learned District Judge expresses himself as follows:
Considerable leniency has been shown to the appellant in allowing him 10 per cent rebate on the amount which he is supposed to have collected.
13. As we have already stated, the Court of first instance did not give any reason for estimating the unrealizable assets at 10 per cent. At p. 21 the learned Assistant Collector expresses himself as follows:
I am of opinion that allowing a decree on the full recorded assets, besides sayar would not be fair, as I think that about 10 per cent of gross rental remains ordinarily in arrears for some sudden reasons every year.
14. It will be seen that the estimate of the learned Assistant Collector is based on pure guess work, and if we accept the principle we shall have to allow a rebate in each and every case where the lambardar fails to maintain a clear account, or deliberately keeps false accounts.
15. We come to the conclusion that this rebate should not have been granted in this case, and the appellants are entitled to a proportionate increase in their claim.
16. The second question relates to chari. It appears that there is a large area estimated at between four to six thousand bighas of land which is used for grazing purposes. The income from this large area had to be estimated, because it did yield some substantial income. The plaintiff's in their plaint estimated the amount roughly at Rs. 800. The learned Assistant Collector deputed a commissioner for the purpose of inquiry, and he was of opinion that the owners of cattle 'paid Rs. 1 per head and the number of cattle that grazed was 2,000. At this estimate the income from chari was about Rupees 2,000 a year. There was on the record an estimate of income from chari made by an Assistant Collector, one Mr. Desai for the purposes of settlement. It appears that a settlement of land revenue is made every five years in this tract of the country. Mr. Desai's estimate was Rs. 3,000 a year. The Assistant Collector hearing the present suit allowed a deduction of 50 per cent on the estimate of Mr. Desai, and held that the income from chari must be at least Rs. 1,500 a year.
17. The learned District Judge was of opinion that the estimate made by the commissioner was vague, and the report of Mr. Desai was not admissible in evidence. On the last point, we are not able to accept the opinion of the learned District Judge. The report of Mr. Desai was admissible under Section 35, Evidence Act. His estimate was, at least, a relevant fact, though certainly not conclusive. The estimate made by the commissioner was bound to be vague to some extent, but it was a workable estimate, seeing that the estimate made by Mr. Desai for the purposes of assessment of land revenue was at a much higher figure. We are of opinion that if the learned District Judge had not discarded the report of Mr. Desai as inadmissible in evidence, he would not have reduced the amount of chari income estimated by the Assistant Collector. In the circumstances we do not fell that we are bound by the finding of fact arrived at by the learned District Judge, and we are free to interfere with that finding. We do interfere, and setting it aside restore the finding of the learned Assistant Collector.
18. On the third point we agree with the learned District Judge that the present appellant, who was the respondent before him failed to claim the weighment dues which had been disallowed by the Court of first instance. In the circumstances the claim cannot be reiterated in this Court.
19. As regards the court-fees realized by the District Judge, we think that he was right. The plaintiffs, as we have already stated, estimated the amount of their claim, as they said only roughly and it was open to them to claim a larger amount on the basis of the evidence led in the case. In the grounds of the objection framed the plaintiffs claimed much larger sums, and indeed the total amount claimed by them came to over Rs. 3,000 as the report of the munsarim of the District Judge's Court shows. That being so, the present appellants were bound to pay the deficiency in court-fees realized from them.
20. The fifth point arises out of ground No. 4 of the cross objection filed by Mr. Shastri on behalf of the respondent. The first three grounds have already been covered by the appellants' claim as to chari. This fifth point relates to village expenses. The Court of first instance held that the lambardar was entitled to appoint a karinda for making collections at Rs. 10 a month, and a peon on Rs. 3 a month. He accordingly allowed Rupees 186 a year in all as village expenses. The learned District Judge thought that this was enough, though he remarked that the lambardar was not entitled to more because he had been very leniently treated as regards the rebate of 10 per cent. It is contended before us that if the learned Judge had not thought that the lambardar had been leniently dealt with in the matter of rebate, he would have increased the amount of village expenses. We cannot say what the learned District Judge would have done if he had not been of this opinion.
21. It is further argued that on the basis of the Wajibularz a sum of Rs. 279 a year should have been allowed as village expenses. But the entire village, with the exception of a pie belongs to a single joint Hindu family of which the lambardar was the head. The Wajibularz prepared in such circumstances could not carry any weight where a stranger is concerned. We have not been told that the lambardar needed more than one karinda and more than one peon. In the circumstances we do not think that we can interfere in this matter.
22. The result is that the appeal succeeds in part, and the cross-objection fails in its entirety. We dismiss the cross-objection with costs, and allow the appeal with proportionate costs to the parties (according to their respective success and failure) as follows. The total amount of the estimated profits will be raised by disallowing the 10 per cent deduction, made by the District Judge, and the calculation of the plaintiffs' share will be made accordingly. The income from chari will be taken at Rs. 1,700 for the first year instead of Rs. 1,000 at Rs. 1,500 instead of at Rs. 800 estimated by the learned District Judge for the second and third years. The office will proportionately make a fresh account which, when approved by the counsel for the parties and by the Court, will form the basis of the decree. Counsel's fees in this Court will be on the higher scale.