1. This is a defendant's appeal against concurrent decrees of the Courts below passed in favour of the plaintiff. The plaintiff. Lala Sunder Lal, brought this suit against the defendant, Shyam Lal, for profits for part of the year 1337 Fasli and for 1338 Fasli. It was the plaintiff's case that he was a co-sharer in a village called Gazipur Bharatpur of which the defendant was the lambardar According to the plaintiff's case, there were good crops during the year in question and the tenants were not defaulters. It was alleged that the defendant lambardar had not paid to the plaintiff the plaintiff's due to him and he claimed in this suit that he should be paid profits for the years in suit on the basis of gross profits. The defendant contested the suit on a number of grounds. In the first place, he denied that the plaintiff was entitled to profits for any part of the year 1337 Fasli or for part of 1338 Fasli, because during that period he was not recorded as a co-sharer. The defendant has also contended that during the years in question, crops had been bad and that the tenants were wholly unable to pay any rent to the lambardar. In short, it was the lambardar's case that he had realized as much rent as could possibly have been realized from the tenants of this village during the years in question. Both the Courts below have come to the conclusion that the plaintiff was entitled to sue for profits for the whole of the period in question, though he was not recorded as a co-sharer for a part of such period. Both the Courts have also held that the defendant lambardar was guilty of negligence and that, therefore, lie must account for profits upon the basis of gross rental.
2. Both the Courts allowed the lambardar a deduction of 8 per cent, only in respect of collection expenses. Against the decree of the lower Appellate Court confirming the decree of the Court of first instance the defendant has preferred this second appeal and has urged before me the same contention as were urged before the Courts below. In the first place, it has been contended that the plaintiff could not possibly recover profits for any portion of the year 1337 Fasli or for a part of the year 1338 Fasli. The plaintiff was an auction-purchaser who purchased the share of an admitted co-sharer in this village on April 23, 1930. The sale was duly confirmed and mutation was made in the name of the plaintiff-purchaser on September 30, 1930. It is the defendant's case that the plaintiff could not recover any profits for the period between April 23, 1930, and September 30, 1930, during which he was not recorded as a co sharer but on the contrary his vendor was so recorded. The 1337 Fasli year ended on June 30, 1930, and if the defendant's contention be correct, then the plaintiff could not recover any profits for the year 1337 Fasli. Further, if the defendant's view be correct, he could not recover any profits for 1338 Fasli for the period July 1, 1930, to September 30, 1930. It is conceded that after September 30 1930, the plaintiff was entitled to sue for profits.
3. This denial of the plaintiff's right to sue for profits for 1337 Fasli and part of 1333 Fasli was raised in the Court of the Assistant Collector and he in accordance with Section 271, Agra Tenancy Act, framed an issue and sent the same to the Civil Court for determination. The Civil Court held that the plaintiff was entitled to sue for profits for 1337 Fasli and 1338 Fasli and the Revenue Court accepted this finding as it was bound to do. On appeal, the learned District Judge also held that the plaintiff was entitled to sue for profits from the date of the sale and, therefore, could claim profits for 1337 Fasli and the whole of 1338 Fasli. It has been urged before me that the view taken by the lower Appellate Court cannot be sustained, and reliance has been placed upon the case in Mohammad Abdul J alii Khan v. Ubaid Vllah Khan : AIR1932All169 . In that case it was held that no suit for profits against a lambardar lay at the instance of an owner who had been dispossessed by other people whose names were recorded in the revenue papers) Such owner was bound to obtain possession through the Civil Court against the trespassers before he could maintain a suit for profits and the lambardar was bound only to pay him profits from the date when he obtained possession in execution of a Civil Court decree, as the lambardar's liability to pay profits was to the persons who were in possession and whose names were recorded in the revenue papers. In my judgment, the present case is clearly distinguishable from the case of Abdul Jalil Khan v. Ubaid Ullah Khan : AIR1932All169 to which 1 have referred. In the present case there is no question of the plaintiff having been dispossessed by any one and no other person has made a claim to the profits. The present plaintiff is an auction-purchaser and his rights are governed by Section 65, Civil Procedure Code, which provides:
65. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
4. This sale having been completed, the property vested in the purchaser from the date of the sale, namely April 23, 1930. Having regard to the terms of this section, I am bound to hold that all the rights of the previous co-sharer vested in the present plaintiff from April 23, 1930, the date of the actual purchase and sale. In those circumstances it would be somewhat hard on the plaintiff if he could not recover profits of his share from that date However, it has been urged that as the vendee's name remained in the revenue papers until September 30, 1933, the lambardar was bound to pay him the profits, but with that view I do not agree. If the whole of the previous owner's rights in the properly had vested in the plaintiff on April 23, 1930, then it was the plaintiff and the plaintiff only who could recover these profits. Once the previous owner had been divested of his interest; in the property he had no right whatsoever to any profits. Under the old Tenancy Act where a person was recorded as a co sharer, the Revenue Court was bound to presume that he had a right to claim profits and the decree had to follow automatically, but that is no longer so, as the provisions of Section 202, Agra Tenancy Act of 1901, have been repealed and there is no similar provision in the present Act of 1926. In my view the plaintiff as the purchaser of a share in this property was entitled to sue for profits from the date of the sale, because on that date the rights of the previous owner were vested in the plaintiff and the previous owner was divested of all his rights. In my judgment the learned Civil Judge who decided this issue came to a right conclusion and that being so, the finding of the lower Appellate Court upon this aspect of the case cannot be disturbed.
5. The point which I am called upon to decide arose in Hashmat Ali v. Special Manager, Mahewa Estate 45 Ind. Cas. 248 : A.I.R. 1918 Oudh. 9 : 5 O.L.J. 31 where it was held by the learned Judicial Commissioner of Oudh that an auction-purchase of a share in a village is entitled to claim profits from the date of the sale and not only from the date when mutation is effected in his name in the village papers. If this view is not the true one, an auction-purchaser of a share in zamindari property must always lose a portion of the profits. It would be impossible for an auction-purchaser to obtain mutation of names on the date upon which he purchased property at an auction, and that being so, there would inevitably be a period of time between the date of the sale and the date of mutation. Unless p. 85, Civil Procedure Code, gives the auction purchaser a right to sue for profits from the date of the sale, such auction-purchaser must inevitably lose his profits for a period of time after his purchase. In my judgment that would be an intolerable position and I find myself in entire agreement with the view taken by the Court of the Judicial Commissioner of Oudh in the case which I have cited. In my view an auction purchaser is entitled to sue for profits from the date of the purchase, though his name is not recorded in the revenue papers until some later date. That being so, I hold that the plaintiff in this case was entitled to sue for profits from April 23, 1930, that is, he was entitled to profits from 68 days in 1337 Fasli and not for the whole of 1338 Fasli.
6. It has been further contended before me on behalf of the appellant that the lower Court were wrong in coming to the conclusion that the lambardar had been guilty of negligence. The lower Appellate Court points out that even if the lambardars accounts be accepted, they only show collections amounting to 60 per cent. However, both the Courts below were not satisfied that these accounts were accurate. It has been held in this Court that where the collections are below 75 per cent, there is a prima facie case of negligence, and it might well be said in this case that the onus was upon the lambardar to show that he had not been negligent as on his own showing he had collected considerably less than 75 per cent, of the rent. According to the statements prepared by the patwari, the collections were extremely low, namely Rs. 171 out of Rs. 863 for the year 1337 Fasli and Rs. 257 out of Its. 756 for the year 1338 Fasli. It is true that the defendant lambardar challenged the accuracy of those figures and alleged about 60 per cent, collections, but as I have stated, his accounts were not accepted by the Court below. It is clear that the collections by the lambardar certainly fell far short of what would be expected in an ordinary year and it was for him to show that there was something abnormal during the period in question. The lower Courts have not accepted his case that tenants were defaulters and that this was a bad season. Having regard to the circumstances of this case, I am unable to hold that there was no material before the lower Court upon which it could properly come to the conclusion that the lambardar had been negligent. That being so, the lower Appellate Court was entitled to hold that the defendant should account on the basis of gross rental.
7. It has further been contended before me that the lambardar should not have been made to account on the basis of gross rental because after the year 1338 Fasli he had ceased to be a lambardar and was unable to realise any arrears. I may observe that this point is taken in this Court for the first time and there is no finding of the Court below upon this aspect of the case. As the matter stands, it is quite impossible for me to bold that he has ceased to be a lambardar, and before I could deal with this question I should have to frame issues and direct the lower Appellate Court to return findings upon them. It has been held time and again in this Court that it is not open for an appellant in second appeal to take a new point which requires further findings of fact before such point can be determined. If I could determine this question upon the' materials before me, I would have done so, but having regard to the fact that it is impossible for me to decide this question without calling for further findings of fact, I hold that this new point cannot be taken by the appellant at this stage.
8. It was further contended by the appellant that in any event he should have been allowed not 8 per cent, for collection, expenses, but the customary rate of tenancy. There can be no question that the customary rate is 10 per cent, and this has been approved of by their Lordships of the Privy Council in Secretary of State v. Sarjkumar Acharjkya where it was held that profit always means the difference between the amount realised and the expenses incurred to realising it; and 10 per cent, on account of collection charges being the customary allwance for mesne profits, it is unnecessary for a defendant to adduce any evidence on this subject. Apart from this case it has been held frequently in this Court of recent years that 10 par cent, is a reasonable allowance for collection expenses in ordinary cases. There was nothing to show in this case that 10 per cent, was too much and in my view the lower Appellate Court should have granted the defendant the customary allowance of 10 per cent. No other point has been taken by the defendant in this second appeal. For the reasons which I have given this appeal must be allowed in part and the decree modified to this extent; that the defendant is allowed 10 per cent. for collection expenses instead of 8 per cent, given to him by the lower Appellate Court. In all other respects the decree is to remain unaffected. The parties will pay and receive costs in this Court and in the Courts below in proportion to their failure. Leave to appeal under the Letters Patent is granted.