1. This is a plaintiff's appeal arising out of a suit for recovery of lambardari dues under Section 159 of the Agra Tenancy Act of 1901. The Court of first instance relying upon two cases of this Court held that the plaintiff was entitled to a decree. The learned Additional District Judge has reversed that decree. He has in no way tried to refer to the cases or to distinguish them.
2. It is not disputed that the plaintiff is the lambardar in this mohal duly appointed by the Board of Revenue. Under the Rules made by the Board of Revenue--paras. 22 and 23--if there is no amount of remuneration fixed by agreement, the lambardar is entitled to get 5 per cent. upon the land revenue payable by the co-sharers. The learned Judge has referred to an entry in the old wajib ul-arz of 1285 Fasli (1878) which according to him is at least not very clear. As proof of any existing agreement between the co-sharers that entry is worthless as the period of the settlement has expired. There is no evidence that there is any special agreement among the co-sharers that the lambardar should not get any remuneration whatsoever; No doubt the Judge has found that during the past such dues have neither been claimed nor paid. But the learned Judge himself concedes that, of course, it does not mean that if they have never been paid they should not be paid if they are due. Nevertheless he has thought that from the fact that they have not been paid it is not unreasonable to infer that they were never due. This, in my opinion, is not a finding of fact but an inference which cannot be justified The present case is not distinguishable from the reported case of Sheo Charan v. Panna Lal 70 Ind. Cas. 917 : 20 A.L.J. 795 : A.I.R. 1923 All. 41 : 45 A. 84. I accordingly allow this appeal, and setting aside the decree of the lower Appellate Court restore that of the Court of first instance, with costs.