1. These appeals arise out of two suits for profits Brought by two plaintiffs, Kunj Behari Lal and Baldeo Prasad. In both cases the defendant Abdul Hadi is the Lambardar.
2. It appears from the evidence on record, and is also admitted by Counsel here that the two plaintiffs and the defendant joined together in purchasing the village in execution of a decree. They bought the property for a sum of Rs. 141. It seems that the proprietors were persons whose estate was very heavily encumbered and this probably accounts for the small sum which was paid for the purchase of the property.
3. The plaintiffs came in to Court suing for their share of the profits for the years corresponding to 1916, 1917 and 1918. The defendant joined issue and the result of the trial in the First Court was that the plaintiffs were given decrees, the learned Assistant Collector assessing the sum which was due to them on the gross rental of the village.
4. The reason why the Assistant Collector did this was that in his opinion tie defendant Lambardar had been guilty of negligence and, therefore, not entitled to have the profits assessed upon the actual collections for the years in suit.
5. In appeal the learned District Judge has differed from the Court of first instance and has come to a finding that in the peculiar circumstances of the case the defendant Lambardar was not guilty of negligence which rendered him Table to have the account for profits taken up on the gross rental.
6. The first ground which has been taken in both the appeals (the grounds in both the appeals are identical) is that the learned Judge of the Court below was wrong in his finding regarding this question of negligence.
7. It has been ruled by this Court that in cases of this kind the question of negligence is a question of mixed fact and Jaw which is open to review in second appeal.
8. The reasons given by the learned Judge in support of his finding are (1) that the collections made by the Lambardar amounted to 70 per cent of the present assets, (2) that the situation of the parties was a peculiar one inasmuch as they were recent purchasers of this property and that their tenure of the property was precarious in as much as the estate which they purchased was very heavily encumbered.
9. In these circumstance the learned Judge agreed with the plea put forward by the defendant that the plaintiffs could not reasonably expect him to incur large expenditure in litigation against the tenants of the village without the plaintiffs themselves taking a share and contributing to the costs of bringing suits.
10. There is evidence on the record which appears to indicate that the work of collecting rents in this village is not an easy one, and we further notice that a considerable area of the village is still held by the ex-proprietors who set up the claim that they were entitled to hold these lands as sir lands.
11. Having regard to the admitted facts of the case it seems to us that we ought not to disturb the finding of the lower Appellate Court on this question of negligence. The points which were brought to the notice of the learned Judge are really not in dispute and, in the circumstances, we are not prepared to say that in this case the defendant Lambardar is proved to De guilty of any default which in the circumstances might properly be called negligence. We think that the learned Judge was entitled to say that in the circumstances the defendant has discharged his duty as far as it was reasonably possible for him to do.
12. The next question we are asked to consider in these appeal is with respect to the rents of ex proprietary lands. The learned Judge for certain reasons given in his Judgment was of opinion that in as-sessing the profits divisible between the parties the rent of the lands held in ex-propritary tenure should not be taken into account. According to the Judge it would he unreasonable, in face of the ex zeminida's contention that they were in proprietary possession of these lands, to expect a Lambardar unsupported by his fellow co-sharers to sue the ex-zemindars lot rent. This is not a very good reason which the learned Judge gives. There is, however, a much stronger reason apparent from the facts which are before us. It appears that although mutation had taken place, and the names of the new purchasers of this village had been brought on the Revenue Records, no steps had been taken to obtain the assessment of rent upon the very large holding which still remains in possession of the ex-proprietors.
13. It is useless for the plaintiffs to argue that the Lambardar is solely to blame for this. That is not the case. Under section 36 of the Land Revenue Act the rent of these ex-proprietary holdings ought ordinarily to be assessed at the time of the mutation proceedings and under subsection (4) of the same section it is provided, that if for any reason an order assessing the rent is not passed at the time of mutation then an application can be made either by the landholder or the tenant or any co-sharer directly interested in the matter to have the ex-properietary rent assessed.
14. We do not think it is the exclusive duty of the Lambardar to apply for the assessment of ex-proprietary rent and if this has not been assessed, as it obviously has not been in this case, then the plaintiffs are just as much to blame as the Lambardar. We may further point out that inasmuch as no rent has been assesed on these lands no suit for arrears would He. This disposes of the point regarding the claim for a stare of the ex-proprietary rent.
15. The third point which hat been argued before us is with respect to a slim of Rs. 35. According to what is stated in the judgment of the learned District judge this sum of Rs. 25 in dispute was collected in 1324 F. by a person not authorised to collect it. It appears that the person who got possess-on of this sum of money was a lady named Hassanara who is the wife of one of the ex-proprietors; and it further appears from certain evidence on record that this sum came into her possession by the sale of certain trees situated in the village. If this lady claiming to be a co-sharer sold these trees and pocketed the money, we very much doubt whether for the purposes of a suit of this kind the sum realised in the manner by her ought to be treated as collections for which the Lambardar would be liable to account to the other co-sharers. So far as we can see this lady is not a co-sharer at all and the proper remedy of the present co-sharers would seem to be to join together and bring a suit in the Civil Courts for the recovery of this sum which has been misappropriated by the person in question. We think the Judge was right in not taking this sum of Rs. 25 into account in assessing the profits payable to the plaintiffs in the suits. So far, therefore, as the appeals are concerned we find that there is no reason to interfere with the judgment of the Court below.
16. Cross-objections have been filed by the defendant. One of the points raised is that the Courts below were wrong in their statement of the Government revenue of the village. It seems that the plaintiffs gave one figure and the defendant gave a lower figure, and the patwari, who probably knows more than either of the parties, gave a figure which the Courts below have accepted. We have no reason to believe that the patwari was likely to be mistaken in such an important matter.
17. The other matter which is raised in cross objections is that the' Courts below ought to have allowed the defendant certain costs amounting to Rs. 9-1-0 which had teen incurred in ejecting certain tenants. Copies of the decrees are on tie record which support the case that a sum of Rs. 9 was spent by the defendant Lambardar in ejectment cases against certain tenants. These costs were awarded to him by the Revenue Court but they were incurred all the same. In the circumstances we think the plaintiff in each case is liable to be debited with one-third of this sum, i.e., Rs. 3 in each instance. The result, therefore, is that the appeals fail and are dismissed with costs including in this Court fees on the higher scale, if any. The cross-objections are allowed to the extent that the sum awarded in each instance by the Court below will be reduced by Rs. 3. We make no order as to costs regarding the cross-objections.