BABU GOURI SHANKAR BAIJAL Vs. RADHA SOAMI SATSANG SABHA AND RAI SAHIB BABU MADHAV PD. SINHA AND OTHERS

JUDGEMENT

(1.) THIS appeal arises out of a suit for arrears of rent brought by the appellant against the respondents in respect of there plots Nos. 675, 676 and 678. The decree in respect of two of these plots Nos. 675 and 678 has become final and is no longer in dispute in this appeal. In respect of plot No. 676, the suit of the appellant for arrears of rent has been dismissed by the lower appellate court on the finding that, according to a custom prevailing in the village, the appellant, in his capacity as lambardar, was not entitled to realise arrears of rent which could only be realised by the heirs of Kr. Jaswant Singh deceased.

(2.) IT appears that the land in suit was taken on lease by one Shri Binod Bihari Lal vakil on the 23rd of January, 1914, from Kr. Jaswant Singh on a rent of Rs. 4/8/ -'per annum for building purposes. In the counter -part of the lease executed by Shri Binod Sihari Lal vakil, Kunwar Jaswant Singh was described as zamindar and lambardar. In the life -time of Kunwar Jaswant Singh, the rent used to be paid to him and, after him, the rent was paid to his heir, Kunwar Kaushalendra Pratap Singh. Shortly after,' Kunwar Kaushalendra Pratap Singh sold all his proprietary rights in the Khewat in which this land. is situated and the question arose as to who would be entitled to realise rent. The suit was brought by one Lala Tota Ram as lambardar of the Khewat in which the land in suit is situated. He having died. The present appellant, Babu Gauri Shankar Baijal, had himself substituted as lambardar of the same Khewat. The obvious question that arises is whether such a suit for arrears of rent can be brought by a lambardar in his capacity as such. The lease which was taken by Shri Binod Bihari Lal from Kunwar Jaswant Singh as a lease for building purposes. After that lease, the land was no longer let out or held for agricultural purposes and, therefore, the land cased to be agricultural land or 'land' defined in the U.P. Tenancy Act. The powers of a lambardar to act on behalf of the co -sharers are oonfin -.e3i tinder the ,U. P. Tenancy Act, to land has defined under that Act. A lambardar has no right to act on behalf of the proprietary body owing the land which is let out or held for building purposes and Which cases to be land as defined in the U.P. Tenancy Act. Obviously, therefore, in this case the right to realise rent cannot vest in the lambardar. When the lease Was given by Kunwar Jaswant Singh in 1914. he had no right to realise rent from his lessee. The lessee, under Section 116 of the Indian Evidence Act. Would have been estoppel from denying the right of Kunwar Jaswant Singh to lease out the land and was therefore, bound to give rent to him. After Kunwar Jaswant Singh. his could claim the same rights. The covenant embodied in the counter part to the lease of the 23rd January. 1914. makes it clear that it was a covenant between Binod Bihari Lal vakil and Kunwar Jaswant Singh in his personal capacity. The word 'lambardar' was only mentioned incidentally to describe his status. There was no mention in it that the land was being let out by Kunwar Jaswant Singh in his capacity as lambardar. The description mentioned that Kunwar Jaswant Singh was both zamindar as well as lambardar and the later portion of the lease Where Shri Binod Bihari Lal undertook to pay the rent mentioned that the rent would be payable by him Kunwar Sahib and there was no mention that it would be paid to the lambardar. Under this personal covenant, therefore, Kuawar Jaswant Singh and. after him, his hair who would succeed to his personal rights might have realised the rent from the lessee. That right could. in no way. vest in the lambardar.

(3.) THE appeal fails and is dismissed with costs. Leave to appeal is refused.