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Allahabad High Court
Mohammad Ishaq vs Jafri Begam on 10 December, 1928
Equivalent citations: AIR 1929 All 155, 114 Ind Cas 870
Author: Niamatullah


Niamatullah, J.

1. Plaintiff-respondent brought the two suits out of which these consolidated appeals Nos. 1207 and 1208 of 1926 have arisen for recovery of profits from the defendant-appellant for the years 1329-1332 F. She claimed to be a recorded cosharer of khatas 1 to 4, mahals Umri and Ghair Khwastgaran in village Pikhlauni, district Aligarh. The defendant-appellant who is the lambardar admittedly collected the rent of these mahals during the years in suit.

2. The defendant contested the claim on the ground that the plaintiff has no proprietary right left in the aforesaid mahals as by a civil Court decree passed in a suit for partition between her and other cosharers including the defendant a share in village Basti Kazi (not in dispute) was allotted to her in lieu of her share in the mahals in dispute and other properties. That suit related to revenue paying properties and other immovable properties.

3. The Courts below have decreed the suits awarding Rs. 131-11-0 as the plaintiff’s share of profits. Except as regards village expenses to be hereafter noticed, no question has been raised before me concerning the amount of profits decreed.

4. The principal contention in second appeal is that the plaintiff’s rights having been determined by a decree of a competent Court the entries in the revenue records should not be allowed to prevail so as to override the terms of that decree. I may mention at the outset that the parties are not agreed as regards the effect of the decree and as to whether it can prove to demonstration that the existing entries in the revenue record are erroneous. Unless the Court is precluded from going behind such entries it should examine and construe the decree to ascertain if the plaintiff lost her right to recover the profits claimed by her, as contended by the defendant.

5. I think the Courts below have rightly held that the entries in the revenue registers for the years in suit are decisive of the plaintiff’s claim for profits. There was at one time a great divergence of judicial opinion in this Court as to whether the presumption enjoined by Section 201(3), Agra Tenancy Act 2 of 1901, is conclusive and absolute, so as to exclude all evidence to the contrary, or, is only rebuttable, in which case the correctness of entries can be the subject of investigation in a suit for profits. The Full Bench case Durga Prasad v. Hazari Singh [1911] 33 All. 799, heard by all the Judges of the Court, as then constituted, has finally set the controversy at rest and it must be held, as ruled in that case, that entries in the revenue register must be given effect to in a suit for profits, in so far as they record the plaintiff’s proprietary rights, however clear and incontrovertible the proof to the contrary may be. Unless it operates as res judicata a judgment or decree, previously obtained, declaring rights which are inconsistent with the entries, is no more than a piece of evidence rebutting the entries subsequently called in question and as such should be ignored like any other evidence offered to prove the incorrectness of those entries. The decree relied on by the defendant bears the date 25th October 1920(1327F) and was passed in a suit instituted on 10th July 1920. The profits claimed are for 1329-1332 F (1922-1925) for which years the entries record the plaintiff as a cosharer. The decree cannot operate as res judicata inasmuch as the question directly and substantially in issue now is whether the plaintiff-appellant had certain proprietary rights in the years 1329-1332 F., which was not, and could not, be in issue in the suit in which the decree was passed two years previously by a civil Court which is not competent to try the present suit. It is conceivable, (I do not suggest that such is the case) that some events happened in the interval which altered the rights determined by the decree and which justify the entries. If, therefore, the decree be allowed to contradict the entries, evidence relating to what happened since cannot be excluded. Such a course will make the rule contained in Section 201(3) as interpreted in the Full Bench ruling, above referred to, quite nugatory and if once the inquiry is opened the mischief sought to be avoided by the rule will be let in. The learned Counsel for the appellant has referred me to a number of cases bearing on the point. I do not consider it necessary to discuss those decided before the Full Bench case already mentioned. In Mubarak Fatima v. Muhammad Quli Khan A.I.R. 1921 All. 124 the entries existing at the date of suit were accepted as correct and the amendment during the pendency of the suit, which was found to be manifestly erroneous was rejected. Reference was also made to a civil Court decree passed before the institution of the suits for profits but as it did not go the whole length of the controversy in the profits case it was not considered to be of any assistance. It is not an authority for the proposition that the presumption arising from Section 201(3), Tenancy Act, should yield to the force of a decree passed before the suit for profits in so far as the entries were inconsistent with it.

6. In Surjan Singh v. Chatura Kunwar A.I.R. 1922 All. 356 a civil suit was instituted and a decree obtained in the interval between the decision of the Court of first instance (which awarded profits to the plaintiff, a recorded cosharer, on the strength of the entries in the revenue registers) and the hearing of the appeal when the decree of the civil Court was produced and acted upon. The civil suit was directed against the entries themselves and was one contemplated by the proviso to Section 201, Tenancy Act.

7. In the case before me we have only the decree of the civil Court of which mention has already been made. Without being supplemented by other documents, and possibly some oral evidence, it cannot be affirmed with precision that it covers all the khatas in question. There is some reason to believe that it does relate to two at least of the khatas lying in one of the two mahals in question but it is impossible to give effect to it without instituting an inquiry as to what the claim was, how adjustment was made and what was allotted on partition to each. The entries relied on by the plaintiff were not, and could not, be directly and specifically in question in the civil suit. It may hereafter turn out that the plaintiff is taking unfair advantage of the appellant’s omission to obtain correction of entries in the revenue registers in due time, but if such is the cases the appellant has no one but himself to thank for his negligence.

8. Another question raised in the appeal is that the Courts below did not allow any village expenses, including collection charges. In dealing with this matter the lower appellate Court remarked that
there was only vague evidence that a mukhtaram and a ziladar were maintained by the defendant-appellant and their salary was not proved. Lambardari dues were allowed to the defendant.

9. I think this view is not equitable or correct. Lambardari dues have no reference to costs incurred by a lambardar in course of village management. It is a statutory right of a lambardar to recover from his cosharers, 5 % on the Government revenue, wholly apart from what he is entitled to recover as his out-of-pocket expenses in making collections. In many cases the exact amount which he spends in that connexion may not be easily ascertainable, as for instance where a common staff is employed to manage a number of properties of heterogeneous character of which only one is in dispute in a suit for profits or where a lambardar engages no karinda or mukhtar and personally works as such, in which case he is entitled to a reasonable remuneration. Such was the case in Mt. Hira v. Ram Adhin Singh A.I.R. 1923 All. 335 decided by a learned Judge of this Court. In such cases a reasonable percentage ought to be allowed as costs of collection. In Pt. Iqbal Narain v. Pt. Suraj Narain [1914] 1 O.L.J. 156. Sir Benjamin (then Mr.) Lindsay considered 10 % as a reasonable basis of allowing collection charges in the absence of evidence to prove actual costs incurred by the lambardar. There is no hard and fast rule and circumstances of each case have to be considered in fixing the amount. In the case before me the lower Courts have awarded profits on gross rental, that is, on the assumption that the lambardar has managed to collect to the last pie. It is not, therefore, unreasonable to allow him Rs. 11-11-0 so as to reduce the decretal amount to the round figure of Rs. 120-0-0. The cost of collection works out roughly at 10% on the amount collected. I would, therefore, modify the decrees of the lower Courts as indicated above and dismiss the appeal in other respects. The respondent will get nine-tenths of her costs in all Courts from the appellant.

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