1. This appeal arises cat of a suit brought by co-sharers against a Lambardar for profits of 1323 Fasli plus arrears of 1321 and 13 2 collected in the year 1323. In the plaint there is no allegation whatsoever of negligence against the Lambardar but in the claim at the foot of the plaint the decree sought for is bared on the gross rental for 1323 Fasli plus the arrears of 1321 and 1322 collected in the year 1323. The only defence with which we are now concerned is raised in the second paragraph of the written statement and that appears to have been made to meet the claim on the gross rental. It is there stated; 'The claim for profits on the basis of gross rental is not correct. It ought to be on the basis of realisation'. The Trial Court on these pleadings fixed an issue 'should profits be allowed on jamabandi or collections?'. It held that no negligence had been proved against the Lambardar within the meaning of Section 164(2) of the Tenancy Act. It therefore, decided to give a decree on the actual collection and it found that the plaintiffs' share out of the collection amounted to Rs. 458-12-8 and gave a decree accordingly with interest.
2. The plaintiffs appealed and therefor the first time in the grounds of appeal it was stated that negligence on the part of the defendant-respondent was fully proved from the facts on the record and that plaintiffs' claim ought to have been decreed with reference to gross rental. We have not been able to understand fully the judgment of the learned District Judge, but we find that he has given the plaintiffs a decree based on gross rental for 1323 and included in it arrears collected in 1323 for the years 1321 and 1322. This he was not entitled to do. The point is completely covered by a ruling of this Bench in Chhabraji Kuar v. Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 18 A.L.J. 863 : 2 U.P.L.R. (A.) 272. The plaintiffs can only get a decree for their share on the actual collection unless they can came within Section 164(2), in which case they are entitled to a decree on the gross rental. They are not entitled to a decree on the gores rental of 13(sic)3 plus collections made for arrears of previous years. On the question as to whether the learned Judge was correct in giving a decree based on gross rental, as we have said in the case of Chhabraj Kuar v. Ganga Singh 60 Ind. Cas. 643 : 43 A. 29 : 18 A.L.J. 863 : 2 U.P.L.R. (A.) 272, to which we have already referred, it is a mixed question of law and fact. Assuming that the Court below was entitled to go into the question of negligence, seeing that it had not been raised in the plaint, we have very great doubts as to whether it should have allowed that question to be opened in appeal for the first time. It is true that the issue was fixed in the Trial Court as to whether profits should be allowed on jamabandi or collections, but that was on the pleadings of the parties and the plaintiffs had not even alleged negligence. Having raised the plea decree could only be passed on gross rental if the plaintiffs proved negligence. This the Trial Court held had not been done. The main ground, it teams us, to which the learned District Judge found that the Lambardar had been guilty of negligence was that whereas the demand for 1323 was Rs. 2,464 odd, the realisations for that year were only Rs. 664-5-3. The learned Judge has omitted to notice that in fact the total collection for that year was much more, namely, Rs. 1,614-10-8. The fast that even a large proportion of the profits of the years of 1323 remained unpaid does not necessarily lead to the inference that the balance would not be recovered in subsequent years, and that the deficit in that particular year was due to the negligence of the Lambardar. Evidence must be given before such an inference can be drawn. In our opinion, therefore, it has not been shown that the Lambardar failed to collect any amount in 1323 owing to his negligence.
3. The result is that we allow the appeal, let aside the decree of the Court below and restore that of the First Court with casts including in this Court fees on the higher scale.