JUDGMENT

Kisch, J - This is the defendants' appeal arising out of a suit for profits for the years 1334 to 1337 fasli. One of the defendants was the lambardar and the other defendants were cosharers. The suit was brought for the sum of Rs. 87 per annum, total Rs. 348, but the trial Court gave the plaintiffs a decree for Rs. 71-9-3 only and this decree was affirmed on appeal by the lower appellate Court. I am not satisfied that the conclusions of the Courts below are correct. It has been found by both the Courts that each cosharer collects his own share of the profits which includes the assumed rent of the sir land in the cultivation of the respective parties. In none of the years in suit were full collections made of their proportionate share of the rental demand by either the defendants or the plaintiffs. The principle followed by the Courts below has been to ascertain the actual collections made by the defendants and the plaintiffs and to test whether these collections are more or less than their legitimate shares by dividing the total collections in accordance with their respective shares in the mahal., On this test it wag found that the defendants had collected a trifle more than their proportionate share of the collections in each of the years in suit, i. e. Rs. 26-8-6 in 1334 and 1335 fasli. Rs. 18-0-2 in 1336 fasli and Rs. 19-0-1 in 1337 fasli which excess represents the amount de-creed.

2. It is contended on behalf of the defendants-appellants that as long as the defendants' collections during the years in suit were less than the share of the gross rental to which they ware entitled the defendants cannot be called to account in the absence of any evidence to show that there was nothing except the less diligence displayed by the defendants in making collections that prevented them from collecting as large a share of the profits of their own shares as the plaintiffs succeeded in collecting out of the profits of their shares. This argument appears to me to be well founded. There is no evidence to show that the plaintiffs wera prevented by any action of the defendants from collecting a larger portion of the profits of their shares. The amounts collected by the plaintiffs in excess of their proportionate share of the total collections in each year were trifling. There was a considerable volume o arrears of rent of previous years some of which is no doubt included in the actual collections while a considerable volume of arrears is carried forward at the end of the period in suit. In my opinion therefore the plaintiffs were not entitled to a decree. I accordingly allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs in all the Courts.