1. This and the connected appeals arise out of suits for profits against the lambardar. The plaintiff, Musammat Rafi-un-nissa, in the first appeal which arises out of Suit No. 2 of 1909, sues for certain arrears of profits as vendee of the share of her husband, Abdul Jail. The other first Appeal No. 334 arises out of Suit No. 3 of 1909. In that suit, the plaintiff claimed merely as assignee of the profits, the profits being originally due to Abdul Alim. The connected second appeals also arise out of suits for profits under similar circumstances. All the appeals can be conveniently disposed of by a single judgment.
2. The first point taken by the learned Advocate on behalf of the appellant is grounded on the following circumstances. It appears that a suit was brought in the year 1905 to which the present defendant was a party for the partition of certain property including the property in respect of which the profits are claimed in the present suits. It would appear that that suit, which was commenced in the year 1905, has got only as far as the filing of the written statement. Who is to blame for this gross delay does not appear, but it is a matter for which both parties must to some extent be accountable. The Judge, in whose Court the case is pending, himself ought to have taken some steps to prevent a case remaining pending for such an unreasonable period. However, all that we have to consider in the present appeal is, whether or not the pending of that suit is a bar or ought to prevent a decree being given in favour of the plaintiff assuming her to be otherwise entitled thereto. We entirely agree with the Court below that it is no bar and that it ought not to interfere with the decrees being granted in the present suits.
3. The next ground was the suggestion that the plaintiff by bringing a suit for profits in respect of the share of which she was owner and being also entitled to the profits which she claimed in the second suit as assignee, has split her cause of action and that the second suit way barred by the provisions of Order II, Rule 2, of the Code of Civil Procedure. Reliance was placed on the cases of Shafkat-un-nissa v. Shib Sahai 4 A. 171 and Murti v. Bhola Ram 16 4.165 In our opinion, the circumstances of these two cases are quite distinguishable from the present. In the present cases, the plaintiff's cause of action is quite distinct, in one case she is the absolute owner of the property in respect of which she claimed profits, in the other case the is merely the assignee of the profits, due to her vendor. In addition to this, the vendor in each case was different.
4. The third ground was that the Court below was wrong in allowing 12 per cent interest. There is no actual provision of law regulating what interest ought to be allowed to a successful plaintiff suing for profits against a lambardar. The Court below appears to have acted on the analogy of what is allowed in favour of a landlord against a defaulting tenant. We think that this is not an unreasonable analogy and we see no sufficient reason to interfere with the discretion of the Court below in the amount of interest allowed. In some cases, there might be special circumstances which would render it inequitable to give a high rate of interest, but no such special circumstances have been brought to our notice in the present case and, furthermore, the question of the rate of interest distinguishable from giving interest at all, does not appear to have been raised in the Court below.
5. The fourth point was that the Court below decided the case without hearing certain witnesses of the defendant. We are referred to an order on the order sheet, dated the 26th of September 1910. It does not appear from anything to which our attention has been called that any application was made to the Court below to adjourn the hearing of the case upon any reasonable grounds and that such application was refused. Furthermore this ground of appeal has not been supported by any evidence which would lead us to the conclusion that the Court below had acted unfairly or improperly. In our opinion, this ground of appeal has no force whatever.
6. The fifth ground was hardly pressed and, in our opinion, has no force whatever. It is suggested that because there is a clause in the wajib-ul-arz that no division of profits was necessary, that, therefore, the profits could not be sued for. It is quite clear that this provision in the wajib-ul-arz dealt with the period when the owners of the property were joint in food and business, a circumstance which has long since ceased to exist.
7. There were certain other minor grounds which were mentioned in the course of the argument which has been fully dealt with in the judgment of the Court below with which we agree.
8. The result is that the appeal fails and is dismissed with costs.
9. Some objections were filed on behalf of the respondents as to the amount allowed against the lambardar. We think that the Court below dealt with the case fairly and justly upon such evidence as the parties on both sides thought fit to adduce. We think there is no force in the objections and accordingly dismiss them with costs.