1. This is a plaintiff's appeal arising out of a suit for recovery of the plaintiff's share of profits against a lambardar, under Section 164 of the Agra Tenancy Act. The plaintiff claimed her share on the basis of the total demand. The defendant pleaded that there was no negligence or carelessness on his part and that the decree should be on the basis of actual collections.
2. The Court of first instance, being of opinion that very little care was taken by the defendant in the collections and that large arrears were allowed to remain uncollected, which indicated a negligence on his part justifying a presumption that what remained uncollected was due to his carelessness, and that there was no explanation or excuse offered by him for the short collections, passed a decree on the basis of the gross rental. On appeal the learned District Judge has modified that decree and reduced the amount decreed.
3. The three years in dispute were 1323, 1324 and 1325 Faslis. The collections by the lambardar in these years amount roughly to 61, 56 and 53 per cent. respectively. Obviously these collections were grossly inadequate and very low and at once call for some explanation by the lambardar. The learned District Judge has agreed with the Court of first instance that the rents in the present case have been considerably in arrears, that during the years in suit the crops were good and the tenants were generally solvent; This was the statement of the patwari which has been assumed to be correct by the lower Appellate Court. These facts in themselves were sufficient to shift the burden at once on to the defendant and call upon him to explain why the realisations were so low. It was laid dow (sic) in the case of Mithan Lal v. Mizajt Lal 17 Ind. Cas. 914 : 10 A.L.J. 529 that, where it was proved by a co-sharer that a very large percentage of the rent had remal (sic) ed uncollected and the lambardar had not produced his account-books, it was, under the circumstances, for the lambardar to explain why such a large sum had remained uncollected. This case was followed by a Division Bench in the case of Shiva Chander Singh v. Ram Chander Singh 30 Ind. Cas. 550 : 37 A. 595 : 13 A.L.J. 851 where it was pointed out that when a co-sharer has given general evidence to show that the rents are greatly in arrear, that the tenants a e solvent and that there are no special circumstances why the rents should not have been collected, the onus is shifted on to the lambardar of showing that, for some reason not connected with his own negligence or misconduct, he was unable to collect the rents. This view has not been correctly appreciated by the lower Appellate Court. If the onus was actually shifted on to the lambardar defendant it would have to be seen how he has tried to explain it. All that has been shown on his behalf is that the plaintiff also made very poor collections in his own patti. Even if that shows that the plaintiff himself was grossly careless and negligent in his own patti that would not justify the defendant in his negligence. The learned Vakil for the respondent has not been able to bring to my notice anything which could be put forward as an explanation showing why the collections have been so poor. The question of negligence is a mixed question of fact and law. The facts found by the lower Appellate Court are binding on me, but the question of the proper inference from those facts as to the negligence on the part of the lambardar is a question of law which can be gone into in second appeal. This was pointed out in the case of Chhabraji Kuar v. Ganga Singh 60 Ind. Cas. 43 : 43 A. 29 : 18 A.L.J. 863 : 2 U.P.L.R. (A.) 272. In my opinion the lower Appellate Court has thrown the burden wrongly and erred in thinking that even under the admitted circumstances of this case there was on the plaintiff the burden of proving not only the defendant's negligence but the amount which remained uncollected owing to his negligence. The learned Judge has not dissented from the findings of fact recorded by the First Court and has only differed as to the inference to be drawn from the admitted circumstances. In my opinion the burden, having been shifted, on to the defendant to explain the low collections, has not been discharged by him. It is noteworthy that the defendant lambardar has not produced any accounts showing the actual amount which he has collected. The result is that the decree of the Court of first instance based on the gross rental was correct.
4. The learned Vakil for the respondent, however, has supported the decree of the learned District Judge on grounds other than those decided by him in his favour. He has urged (I that the nominal rents fixed for the sir and khuakashi lands which were in the possession of the lambardar were wrongly taken into account, and (2) that in any case some amount should have been awarded as collection charges. The respondent is certainly entitled to support the decree on this new ground under the provision of Order XLI, Rule 22 of the Code of Civil Procedure.
5. As to the first point raised, in my opinion, in the absence of any accounts produced by the lambardar showing the actual profits he had made from the and khudkaskt land, the lower Appellate Court was justified in treating the amount of rent which was recorded in the revenue papers as the correct amount of the profits. The amount so entered is obviously nominal in the sense that such an amount has not in fact to be paid to any one, the lambardar himself being in cultivation of sir and khudkasht land. The rent entered in the revenue papers can only represent the amount of rent roughly, and cannot be the exact amount of rent which has to be paid. But in the absence of actual accounts it can properly be made the basis of the calculation.
6. As to the collection charges, however, in my opinion, the Courts below should have given the defendant credit for a sum fixed at a reasonable percentage. The plaintiff had only given the defendant credit for Rs. 22-8-0 as lambardari dues. It is the amount which the lambardar is entitled to get under the Land Revenue Act on the amount of Government revenue paid by him. No credit was given to him for collection charges. It is true that the lower Appellate Court has found that the lambardar has failed to prove that he kept any special karinda or peon or that he incurred any special damages. All that the lambardar seemed to have done was that he himself took the trouble of going from tenant to tenant and making collections and, in my opinion, there is no reason why he should not be given credit for meeting collection charges. The plaintiff's share in the total demand inclusive of interest as found by the Court of first instance came to Rs. 262-7-6 only. In my opinion the sum of Rs. 12-7-6 should be deducted as a rough approximate amount to which the defendant lambardar is entitled on account of the trouble taken by him in making collections. When the decree on the basis of g oss rental is to be passed against him, it is fair that he should be given credit for such an amount.
7. I acco dingly modify the decree of the lower Appellate Court and decree the plaintiff's claim for a sum of Rs. 250 with interest at 6 per cent. That is to say, I give him credit for Rs. 12-7-6 representing collection charges which amounts to less than 5 per cent. The parties will receive and pay costs in proportion to their success and failures.