JUDGMENT

Ghulam Hasan, J - The only question arising in this appeal is whether the Courts below were justified in decreeing the suit for profits on the basis of gross rental. The plaintiffs admittedly owned three annas share in the property in suit while twelve annas share is held by the defendant-appellant, who is also a lambardar. The suit related to the share of the plaintiffs for the profits for the years 1341 to 1344 Fasli. No accounts were produced by the defendant-appellant, but a statement was prepared by the patwari showing both the gross rental and the actual collections. The patwari was also examined by the plaintiffs on their behalf. The learned Assistant Collector held that the defendant owed a duty to his cosharers to try every possible means to realize the rent and having failed to perform his duty he was under the circumstances responsible for payment of the profits on the basis of gross rental and not on the basis of the actual collections. The suit was, therefore, decreed on the basis of the gross rental as the lambardar had been grossly negligent. The learned District Judge in appeal upheld the view taken by the Assistant Collector. In his judgment, the figures prepared by the patwari have been shown to be wrong. The learned District Judge was of the opinion that the collections were less than half the demand, that the lambardar had not produced any accounts of his collections nor had he examined himself nor any servant of his to show that he did his utmost to make collections. He also took into consideration the fact that the lambardar had brought no suits for arrears of rent and had taken no distraint proceedings.

2. In the second appeal, it is contended on behalf of the defendant-appellant that the finding of negligence recorded by the two Courts below is erroneous in law. It appears from the statement filed by the patwari that the gross rental was Rs. 2450-8-4 and the actual collections were Rs. 1279-12-4 for the years in suit. This shows a percentage of about 52 per cent. It is argued that according to the statement given by the patwari the tenants were hard pressed and indebted and that even if suits had been brought or distraint proceedings had been taken, no more amount could have been realized. I am of opinion that the finding of gross negligence arrived at by the Courts below against the defendant lambardar is perfectly justified and cannot be disturbed in second appeal. A reference to para. 7 of the written statement will show that the defendant, appellant claimed that he had realized the profits of his own share and that he had no objection to a decree being passed against him, if it was proved that he had realized anything in excess of his own share of the profits. The plaintiffs admittedly did not make any collections and whatever collections were made, were made by the defendant-appellant as lambardar.

3. He produced no accounts of these collections and the plaintiffs had no other alternative in the circumstances but to produce the patwari, who prepared a statement showing the amount of the gross rental and the actual realizations. There was an obligation cast upon the lambardar to do his best to realize the profits of the property. It was equally his duty to keep clear accounts of the collections made by him, and it is not open, to him, in a suit for profits brought against him by a cosharer, to plead, in the absence of any accounts, that the suit should be decreed against him only, on the basis of actual collections proved by the patwari. In a cage where the defendant lambardar does hot produce accounts of the actual collections and does not give any adequate explanations for not producing the accounts, it is not competent for him to rely upon the patwari's statement in proof of the collections dictated by him and to plead that he did not realize more than what was contained in the patwari's statement. There is no reason to think that if the lambardar had been diligent in the performance of