1. The question for decision in this second appeal is the principle upon which the claim of the plaintiff in respect of profits ought to be allowed for the years 1324 and 1325 Fasli.
2. The suit was a suit in respect of these two years but it appeared in the course of the trial that during these years decrees had been obtained by the defendant Lambardar for a sum of Rs. 635-13-2.
3. The Courts below have allowed profits to the plaintiff against the Lambardar on the basis of the gross rental for the two years in suit and have also awarded the plaintiff his share in the decrees which have been obtained on account of arrears for the years antecedent to the two years in suit.
4. According to the finding of the lower Appellate Court the defendant was liable to account* for the years in suit on the basis of the gross rental by reason of* his having been grossly negligent.
5. In appeal it has been contended, on the strength of the rulings reported as Chhabraji Kuar v. Ganga Singh 60 Ind. Cas. 645 : 18 A.L.J. 863 : 2 U.P.L.R. (A) 272 : 43 A. 29 and Jodhi Ram v. Kaunsilla 67 Ind. Cas. 521 : 20 A.L.J. 313 : (1923) A.I.R. (A.) 111 : 4 U.P.L.R. (A.) 160 that the plaintiff was not entitled to have a share of the profits for the years in suit in accordance with the gross rental and to have in addition his proportionate share of arrears for earlier years which were realised by decrees or otherwise during the years in suit.
6. Without referring to the principles laid down in these two judgments which, we may say with all respect, we are not inclined to accept as being principles of universal application, the case appears to us to be a clear one on other grounds.
7. There can be no doubt that the defendant Lambardar was not liable to account on the basis of the gross rentals of the two years in suit unless it could be found that he was guilty of gross negligence. It is true that the lower Appellate Court has found that there was gross negligence but this is a finding on a question of mixed fact and law and is open to review in second appeal. We may say at once that we cannot agree with the finding that in the particular case the Lambardar was guilty of negligence. It is an admitted fact that for the two years in suit the total jamabandi came to Rs. 1,049. That represents the utmost that could be realised out of the tenants. On the other hand, we have it that during the two years in suit the Lambardar collected and obtained decrees for a sum of Rs. 965-5-7. Comparing this latter receipt with the total jamabandis for the two years we think it may reasonably be said that the Lambardar could not have been expected to exact more out of the tenants for the two years in suit than the sum just referred to, and, this being so it seems to us that any presumption of negligence is satisfactorily rebutted.
8. In our opinion the appellant is entitled to succeed on the ground taken in the third paragraph of his memorandum of appeal and we have decided, therefore, that the plaintiff's claim should be limited to his share of the profits actually collected or for which decrees have been obtained during the years in suit. In other words, the plaintiff is entitled to a 7-20th share of Section 965 odd after a deduction of Rs. 274-13-0 oh account of Government revenue and Lambardari dues.
9. The total amount divisible comes to Rs. 690, and the plaintiff's share of this amount to Rs. 241-8-0. We, therefore, allow the appeal to this extent that we reduce the amount decreed in plaintiff's favour. We give the plaintiff a decree for Rs. 241-8-0. The interest on this sum calculated in the plaint comes to Rs. 48 which will be added to the principal sum. The plaintiff will get proportionate costs and future interest at 6 per cent, per annum from the date of decree to the date of realisation. Parties will pay and receive costs in proportion to success and failure.