1. This is an appeal by a defendant lambardar against a decree of the lower appellate Court awarding the plaintiff-respondent Rs. 2,569-2-9 for the plaintiff's share of the profits under Section 164, Act 2 of 1901. The plaintiff sued for his share of profits for 1328, 1329 and 1330 Faslis. The plaintiff produced as sole witness the patwari. The patwari gave evidence that the total rent for these years was as follows:
F 1328 Rs. 1,207-7-6
' 1329 ' 3,576-6-2
' 1330 ' 1,475-15-6
2. The figures given in the plaint for the rental for these years were considerably in excess of those stated by the patwari and were as follows:
F 1328 Rs. 3,571
' 1329 ' 3,620
' 1330 ' 3,620
3. The lower appellate Court has accepted the figures stated in the plaint as correct with the exception of a slight variation in regard to the rental assessed on khudkasht for which it accepted the statement of the patwari. In the result, therefore, the lower appellate Court accepted rentals of over Rs. 3,000 for each of the years in suit, a total of approximately Rs. 10,000 rental as compared with Rs. 6,260 0-2 stated by the patwari. The ground on which the lower appellate Court disregarded the evidence of the patwari on this point was firstly that the patwari stated in evidence that the rental for 1328 and 1330 was less than that for 1329 because 1329 was an exceptionally good year and the rental being by batai, variations can easily be made in it from year to year: but on a previous occasion in another suit the defendant lambardar stated that the produce of Fasli 1329 was average. The second reason given by the lower appellate Court is that the patwari in a previous suit had stated 'Defendant's mother was not purdah to me and thought me her son.' It was no doubt open to the lower appellate Court to find that the evidence of the patwari was not worthy of credit, but it was not open to the lower appellate Court to find that the rental amounted to Rs. 9,955-8-4 without any legal evidence to that effect. We consider, therefore, that this finding of the lower appellate Court must be set aside. There is, therefore, no evidence to show that the rental was more than that stated by the patwari.
4. The next point is whether the lower appellate Court was justified in reversing the finding of the Court of first instance on the question of alleged negligence by the lambardar defendant. For this finding of negligence the lower appellate Court relies solely on the statement that the defendant had collected only 57 per cent. of the assets in a batai village. Them is no legal evidence to prove that the total of the assets was Rs. 9,955-8-4. Accordingly there is nothing to show that the collections stated by the patwari Rs. 5,701-13-4 was a small percentage of the assets. In fact the percentage of the assets collected given by the patwari was high amounting to over 90 per cent. It was open to the plaintiff to prove negligence of the lambardar by calling certain tenants, of whom there must be a large number in the village, who could have shown, if indeed it had been a fact, that they had paid rent to the lambardar for the years in suit, and that this payment of rent had not been entered by the lambardar in the siaha. But the plaintiff did not call a single witness to prove these points. In regard to the representation of the learned Counsel for the plaintiff-respondent that it is difficult for the plaintiff after a lapse of three years to produce evidence of what was the exact rental for the three years in suit, it is sufficient if we point out that the plaintiff might have brought his suit at an earlier date without waiting for the lapse of three years. Accordingly we set aside the finding of the lower appellate Court, that the lambardar was negligent and that the decree should, therefore, be based on the assets. On this point we restore the decree of the Court of first instance which was that the plaintiff should receive Rs. 1,500-14-1 on collections. We were addressed on two other points in the grounds of appeal, one being in regard to Rs. 61-2-0 diet money for witnesses called by the plaintiff who attended on three occasions but were never produced before the Court.
5. We agree with the lower appellate Court that this sum was correctly charged as costs by the plaintiff because the number of witnesses was not excessive, and because the defendant did not disclose his exact line of defence. A further point on which we were addressed in appeal is in regard to Rs. 155-3-0 costs which the plaintiff charged for documents which he filed in this case. There are 15 such documents, but it was only necessary to produce two or three documents. Moreover the plaintiff quite unnecessarily produced copies of the whole of the khataunis relating to the years in fait, whereas all that was necessary for him to produce were copies of the totals in those khataunis. Details of entries in regard to each tenant in those khatuanis had no bearing on the case. Accordingly we consider that the charge of Rs. 155-3-0 by the plaintiff should rot be allowed in the present case. The result is that we modify the decree with full costs of this Court and with proportionate costs in the two lower Courts and we restore the decree of the Court of first instance that the plaintiff will receive a decree for Rs. 1,500-14-1 and that the item of Rs. 153-5-0 for papers in the list of costs of the plaintiff will be disallowed. Interest as decreed by the Court of first instance will be allowed up to the date of payment.