ANGAD SINGH Vs. ZORAWAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought in the Revenue Court for profits. One of the plaintiffs happened to be the Lambardar, but we think that this fact ought to be left out of consideration for the purposes of the case. The plaintiff is not suing as Lambardar. He is suing as one of the co-sharers. The learned Assistant Collector at the commencement of his judgment says: "The peculiarity of this case is that one of the plaintiffs is the Lambardar; and the defendants being only pattidars have so much land as sir and khudkasht that the Lambardar instead of distributing profits has been reduced to the position of a sharer claiming profits." The defence to the suit was that the defendants were not in the habit of making any collections, and that any profits that they had in their hands were the profits from their own sir and khudkasht, and that they bad not more sir and khudkasht than represented their share in the village. Another defendant pleaded much the same thing but also alleged that the plaintiffs, particularly the Lambardar plaintiff, had purposely allowed land to go out of cultivation. The Court of first instance gave a decree in the plaintiffs favour for the following sums, for

(2.) The lower Appellate Court dismissed the appeal of the defendants. In the course of his judgment the learned District Judge says, "The first point for determination is on what basis the liability, if any, of the defendants-appellants should be calculated. I decide that the calculation ought to be made on the basis of actual collections made, including of course nominal rental of sir and khudkasht," The defendants have appealed and it is urged on their behalf that in a general way the real issue between the parties has not been decided. It would rather seem as if the expression "basis of actual collections" was not very appropriate, because the defendants have all along alleged that they make no collections at all and there is nothing in the finding of either the Court of first instance or the lower Appellate Court to show that they did. So far as we can gather from the findings arrived at in the Court below, the defendants have been in possession of a considerable amount of land and such profits as they have in their hands are the profits derived from land which they have been cultivating themselves or by sub-tenants. We think that if the different co-sharers are entitled to different portions of the mahal as their sir and khudkasht, each co-sharer would be entitled to the profits of his own sir and khudkasht and he would not be obliged to account for those profits to the other co-sharers. It would seem to be only common justice that if one co-sharer was industrious and made a considerable profit out of his sir and khudkasht, he should not be obliged to share that profit with another do-sharer, who neglected or was less fortunate with his sir and khudkasht. On the other hand if any co-sharer had in his hands and in his own cultivation an excess of land, over and above his proper share of sit and khudkasht, he should certainly account for the excess. The share of each co-sharer in sir and khudkasht need not necessarily be identical in area, because a larger share or inferior land might be given to one co-sharer where the others had land of superior quality. We must also point out that if the plaintiffs were entitled to certain land as their sir and khudkasht and for any reason they neglected to cultivate it, they would not be entitled to call upon the defendant to account for the profits of his sir and khudkasht unless the latter was in excess of what the plaintiffs were to cultivate. After these general remarks we think it advisable to refer certain issues to the Court be-low before deciding the appeal: (1) Was the land divided between the co-sharers as sir and khudkasht? (2) Was the sir and khudkasht of each co-sharer in proportion to his share in the village? (3) Were the defendants in possession by themselves or through sub- tenants of sir and khudkasht in excess of their share, and if so, to what extent? In considering this issue the Court will have regard to the quality of the land. (4) Having regard to the findings on the above issues, have the defendants realised anything, and, if so, how much in excess of what they were entitled to?

(3.) The parties may adduce further evidence relevant to the above issues. On return, of the findings the usual ten days will be allowed for filing objections.