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Chatar Sen Vs. Mitter Sen and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in155Ind.Cas.653
AppellantChatar Sen
RespondentMitter Sen and anr.
Cases ReferredAngad Singh v. Zorawar Singh.
Excerpt:
agra tenancy act (iii of 1926), sections 227, 226(2) - co-sharer--whether can be held accountable for profits not collected by him--collecting co-sharer--liability of. - - but even if the plaint were amended, it does not appear that the plaintiff's claim is well-founded......the lower appellate court in regard to this claim states that the plaintiff in the plaint did not claim arrears for the period prior to 1331 fasli. the claim in the plaint was limited to the years in suit and was based on the full rental of those years. there is no provision in section 227 for a co-sharer being held accountable for profits that he has not collected and that applies in section 226(2) only in the case of a lambardar, the reason being that a co-sharer has no duty to collect for other co-sharers. when the amount of the plaint claim therefore was reduced by the courts, the plaintiff put forward this claim for the collections in the years in suit for previous years. such a claim would require an amendment of the plaint which was not made in the present case. but even if the.....
Judgment:

Bennet, J.

1. This is a second appeal by a plaintiff against a decree of the lower Appellate Court which modified the decree of the Court of first instance allowing certain sums to the plaintiff under Section 227 of Act III of 1926. There were two sets of co-sharers in the khewat in question, the plaintiff on the one hand and the two defendants on the other. The plaintiff brought a suit against the defendants for rendition of accounts and his share of profits The suit was for the years 1331 to 1334 Fasli. There were certain arrears collected in the years in dispute for the period prior to 1331 Fasli. The plaintiff claims in second appeal that because the defendant Mitter Sen is the sole collecting co-sharer, and has paid profits of previous years on the basis of collection, he was bound in law to, pay to the plaintiff his ratable share of the arrears of the past years realized during the years in question. The lower Appellate Court in regard to this claim states that the plaintiff in the plaint did not claim arrears for the period prior to 1331 Fasli. The claim in the plaint was limited to the years in Suit and was based on the full rental of those years. There is no provision in Section 227 for a co-sharer being held accountable for profits that he has not collected and that applies in Section 226(2) only in the case of a lambardar, the reason being that a co-sharer has no duty to collect for other co-sharers. When the amount of the plaint claim therefore was reduced by the Courts, the plaintiff put forward this claim for the collections in the years in suit for previous years. Such a claim would require an amendment of the plaint which was not made in the present case. But even if the plaint were amended, it does not appear that the plaintiff's claim is well-founded. The lower Appellate Court has held that the plaintiff could not be allowed arrears so realized by defendant co-sharers unless it was proved that it was in excess of shares, and that there is nothing to show this. Learned Counsel argued that the collecting co-sharer is liable to share these arrears ratably with co-sharers who do not collect. I do not consider that Section 227 is intended to convey such a meaning. The language of the sub-section has not been altered from the language of the previous Section 165(1) of Act II of 1901. Under the previous section a co-sharer has been held to be liable to the extent of what he has collected beyond his own legitimate share and out of the plaintiff's share: see Angad Singh v. Zorawar Singh. 44 Ind. Cas. 542 : 16 A LJ 146 I do not consider that there is anything wrong in the decision on this point of the lower Appellate Court The second ground of appeal stated that a reference to a copy of a decree for profits for previous years and filed in the record and the statement of account filed by the Patwari, do show that there was an excess amount realised by the defendant, and that the Court below was under some misapprehension in holding otherwise. This ground of appeal does not state in what way there was an excess realised and to what extent there was an excess. Possibly learned Counsel meant that the collections were in excess of the shares of defendants. In any case it is not the function of this Court in second appeal to re-examine the evidence and to come to conclusions of fact on such evidence. I dismiss this second appeal. The opposite party was not represented and so no costs are allowed. Leave for a Letters Patent Appeal is granted.


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