JUDGMENT

Sulaiman, J. - This is a plaintiff's appeal arising out of a suit for recovery of the plaintiff's share of profits against a lambardar, u/s 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