JUDGMENT

Ashworth, A J C - This second rent appeal arises out of a suit for profits between co-sharers. The first question is whether the lower Courts were wrong in refusing to allow the defendant appellants, lambardar, a sum of Rs. 216 claimed as expenses incurred in collection of profits. The appellant attempted to prove the expenditure of this sum but failed in the opinion of the lower Courts. He was awarded 5 per cent. but maintains that he should have been awarded 10 per cent. which would amount about to the sum of Rs. 216 claimed. Reliance is placed on a ruling Grish Chunder Lahiri v. Shoshi Shikhareshwar Roy [1900] 27 Cal. 951, where 10 per cent. was allowed for collection in the case of a trespasser sued for mesne profits I hold that this ruling is no authority, as the 10 per cent. in the case referred to was claimed "as a matter of ordinary practice, and supported by the evidence in the case." The defendant having failed to prove any actual expenditure and not having tendered evidence to justify any specific percentage cannot in my opinion be heard to say in appeal that the 5 per cent. allowed by the lower Court was insufficient.

2. The second point is whether the lower Courts were justified in allowing the plaintiff-respondent a share in the profits of some usar planted in the year 1327 Fasli with groves. It is maintained that as the lambardar took the trouble of planting this usar he should not be called upon to pay the co-sharers any profits. In the absence of clear evidence of an agreement amongst the other co-sharers that the lambardar should reimburse himself for any expense in planting the usar by taking the whole profits I am of the opinion that this plea is not maintainable.

3. The third point is that the lower Courts should have credited the lambardar with the expenditure of Rs. 500 on wells. The lower Courts were not satisfied with the evidence as to this expenditure. A thekedar deposed to having been paid this sum by the lambardar for making the wells but he would not swear to two receipts tendered because he said he had lost his eyesight. It suffices to say that the lower Courts have given reasons for distrusting the allegation of the appellant that he paid Rs. 500 in this way or paid any other sum for the wells. Indeed the amin appears to have stated the wells to have been in existence for 10 or 12 years, in which case it would be impossible that the money for their sinking was spent within the period of suit. In second appeal I am not disposed to hold that the lower Courts were wrong in their finding of fact that the expenditure of Rs. 500 on wells was not proved.

4. The fourth point is the pleader's fee. The lower Appellate Court has allowed Rs. 100 on the claim of the plaintiff as decreed by the Court. It is urged by the appellant's counsel that this is higher than the scale allowed by the Board's Circular. The respondent's counsel admits that the sum of Rs. 100 should be reduced to Rs. 45 on this ground. This would be at the rate of 5 per cent. on the sum decreed by the lower Court. The appellant's counsel, however, pressed that only Rs. 300 was originally claimed in the plaint and that the fee should be on this sum claimed and not on the sum awarded. I am not disposed to accept this view. The plaintiff is entitled to get costs on what he was allowed and not merely on the nominal sum which he originally claimed.

5. The result is that this appeal is dismissed except that the costs awarded shall be reduced from Rs. 100 to Rs. 45. The costs of this appeal will be borne by the appellant.