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1948 DIGILAW 127 (ALL)

Banarsi Lal v. Jagannath Prasad

1948-08-17

body1948
JUDGMENT Bhargava, J. - This appeal arises out of a suit for profits, under S. 230, U.P. Tenancy Act, instituted by Jagannath Prasad (since deceased and now represented by his son Ram Saran and his widow Shrimati Gana) and Kedar Nath, two of the cosharers in mohal Indumati of village Baraimau, in the district of Farrukhabad, against Banarsi Lal, the lambardar, who is the appellant. The suit relates to profits realisable during the years, 1847 to 1349 Faslis and the claim was made up of three items--(1) Rs. 199-9-5, representing the plaintiffs' share of the profits for the years in suit, (2) RS. 46-13-3, on account of his share in the rent of khudkasht and sir land and (3) RS. 153-2-9, in respect of his share of the arrears of rent for previous years. 2. There is no longer any dispute in regard to the first two items. As far as item 3 of Rs. 153-2-9, is concerned, the Revenue Officer of Farrukhabad, who tried the case, disallowed it on the ground that there was no evidence of actual collections. On appeal, the District Judge of Farrukhabad, however, allowed this item also and decreed the suit in its entirety. He was of opinion that, as the lambardar had admittedly made collections, he was bound to produce his accounts and as he had failed to produce the accounts under S. 232, Tenancy Act, it must be presumed that along with the current demand he had also collected the entire amount of arrears. 3. It was not disputed in the Courts below nor has it been disputed in this Court, that even when a decree on the basis of gross rental was passed in respect of the current demand, a decree for share in the arrears of rent for previous years realised during the years in suit could also be passed. The Full Bench case of Lala Sheo Ghulam Vs. Salik Ram lays down that in a suit under S. 164, Agra Tenancy Act (which corresponds to S. 230, U.P. Tenancy Act), a cosharer is entitled to a decree for his share of the arrears collected on account of previous years, as well as his share of the gross rental for the year in suit, in case the negligence or misconduct of the lambardar is proved. Therefore, there can be no doubt that the plaintiffs were entitled to sue for their share of the arrears of rent for previous years. 4. The sole point for consideration in this appeal is whether, in the circumstances of the case, the learned District Judge was justified in raising the presumption which he did, under S. 232, Tenancy Act. The learned counsel for the appellant has strenuously argued that the learned Judge could not raise the presumption that the entire amount of arrears had been collected. 5. Section 232, Tenancy Act, lays down : If in a suit under the provisions of S. 230 or S. 231 it is claimed that either part has made collections, such party shall be bound to produce his accounts, including the books of the counterfoils of receipts issued by him, and if he does not do so the Court may make such presumption against him and pass such orders as to costs as it thinks fit. 6. The defendant lambardar having admittedly made the collections was, therefore, bound to produce the accounts and as he failed to do so, the Court was entitled to raise such presumption as it thought fit. The lambardar not only failed to produce the accounts, but he also did not dictate the collections made by him to the patwari: nor did he go into the witness-box to prove what he had actually collected. A lambardar is expected to collect the entire demand and every reasonable and prudent lambardar would try to do so. If for any reason he is unable to do so, he must show the reason for his failure to collect the entire demand and also the amount actually collected by him. If he fails to do so the Court is entitled to raise the presumption that he had collected the entire demand because it cannot presume that he was able to collect only a certain percentage thereof. 7. The learned counsel for the appellant has pointed out that the plaintiffs ought to have proved the actual collections by producing the tenants That might have been possible; but it was not practicable and the Court could not have on its basis arrived at any satisfactory conclusion, as it would have been difficult to get hold of all the tenants and to make them depose or produce receipts about the payments made by them after so many years. The lambardar was the best person to show the amount actually collected by him and if he had produced the account, the position would have been clear. 8. The learned counsel for the appellant has further argued that the lambardar was not liable to pay any share in the arrears as the claim had become time-barred. The period of limitation for a suit for the recovery of share in the arrears runs from the 1st of August following the year in which the arrears are realised. That was the view taken in the full Bench case cited above. In this particular case the arrears were not realised before the years in suit. Therefore, it cannot be said that the arrears had become time-barred. 9. Under cl. (2) of S. 230, Tenancy Act, the Court could award to the plaintiff a share not only of the amounts actually collected but also of such sums as had remained uncollected owing to the negligence or misconduct of the lambardar. The lambardar was undoubtedly negligent when he allowed a large sum of money to fall into arrears. If he had not maintained the accounts of collections he was negligent. If he had maintained the accounts and had withheld them in that case also be would be deemed to be negligent. His failure to dictate the siyaha to the patwari would also point to the same conclusion. It was pointed out that the siyahas during the years in suit could not be dictated as the patwari was absent from the village; but I am not prepared to accept the statement of the patwari to that effect. Moreover, the lambardar does not say that he could not dictate the siyaha for that reason. He has not entered the witness-box. 10. The lambardar could not be allowed to take advantage of his own negligence or omissions. In the circumstances of the present case, therefore, the learned District Judge was perfectly justified in raising the presumption that the entire amount of arrears had been collected during the years in suit and there is no reason to interfere with his decision. The appeal fails and is dismissed with costs.