NILKANTH LAXMAN NAIK Vs. VISHWANATH JANARDAN NAIK

JUDGEMENT

(1.) THIS is a Letters Patent Appeal against the decision of Bose J. The dispute is about a site in the abadi of mauza Talodi in which the plaintiff owns a 12 annas share and the defendant 4 annas. The site formerly belonged to one Pancham Singh a tenant in the village who held it under Section 203, C.P. Land Revenue Act. On 28th July 1930 he sold it to the defendant without the consent of the plaintiff, who is the lambardar of the village. The plaintiff sued in his capacity as lambardar for possession of the site; the superstructure had already been dismantled.

(2.) THE learned Judge held that one cosharer could not eject another, basing his decision largely on Ramdayal v. Gulabia Bai ('08) 4 NLR 120. In that case Stanyon A.J.C. held that where a co-owner, acting on his own account, acquires a tenant right in the village under a contract with the tenant, such a transaction is a transfer and not a surrender of the holding and that the other co-owners (a) acting conjointly may either accept him as a tenant of the entire proprietary body or allow him to hold the acquired land exclusively as a co-owner thereof with themselves in pursuance of the mutual arrangement for enjoyment of the undivided estate or (b) acting independently claim joint occupancy or occupancy in common, as the case may be, in the acquired land. With very great respect, it seems to us that that is not an entirely accurate statement of the law as it now stands. As the transaction is a transfer and not a surrender, the tenancy rights continue to exist. If the holding transferred is an absolute occupancy holding, then the transfer is valid but the landlord has a right of pre-emption under Section 6, C.P. Tenancy Act, if the holding is an occupancy holding, the transfer is contrary to the provisions of Section 12 of the Act and the landlord may apply under Section 13 to be placed in possession. The "landlord" here means the lambardar, as provided in Section 188(2)(a), Land Revenue Act. In that way it is, in our opinion, open to the lambardar to obtain possession of the holding even against a cosharer, as was pointed out by Hallifax A.J.C., in Devaji v. Govind 14 AIR 1927 Nag 161 though his possession would be possession on behalf of the entire proprietary body. This was the view taken by the Revenue Courts in Girljabai v. Rukhmabai ('25) 1925 RR 22, and Harbhajan v. Keaheo ('28) 1928 RR 13. On the other hand, the proprietors may accept the cosharer as a tenant of the proprietary body or they may all come to any arrangement they like between themselves.

(3.) THE case turns mainly on the interpretation of Sub-section (4) of Section 203. The "lambardar" is defined in Section 2(6), Land Revenue Act, as the proprietor of a mahal appointed to discharge the duties imposed on a lambardar by this Act and those duties are set forth in Section 188(1), Land Revenue Act. The position therefore is that the proprietor appointed to discharge the duties imposed on the lambardar shall be entitled to allot sites in the abadi. The powers of a lambardar are stated in Section 188(2), and Clause (b) directs that he shall exercise the powers of the proprietors in matters relating to the village abadi. Bose J. took the view that the lambardar in exercising the powers of the proprietors in matters relating to the village abadi under Section 188(2)(b) and allotting sites in the abadi under Section 203(4) acts not as the proprietor of the mahal but as the agent of the proprietors and that an agent cannot turn out. one of his principals. In our opinion it does not follow that the lambardar in exercising the powers imposed on him under Section 188(2) acts not as the proprietor of the mahal but as the agent of the proprietary body. There is a clear direction that the proprietor appointed to discharge the duties imposed on a lambardar shall exercise the powers of the proprietors, and the powers are necessarily given to the person who has to perform the duties. An individual proprietor by himself has no power to allot sites in the abadi; it is the lambardar alone who can do so. Even if it be held that he is the agent of the proprietary body, he is the agent appointed not by them but by Government under the Land Revenue Act and he has the powers conferred on him by that Act. At p. 229 of Barway's "Law of Tenancy in C.P.", 1936 edition, it is stated: The position of the lambardar being no higher than that of a mere agent of the proprietary body, the view propounded by the learned Judge in Devaji v. Govind AIR 1927 Nag 161 appears, at first sight, to be antagonistic to the basic principles of the law governing the relationship between principal and agent, and It certainly looks preposterous that an agent should have the power to turn out one of his own principals. But if each one of the cosharers were allowed to interfere with the village management which is growing more and more complex, the result would be a chaos. It is for this reason that only one member of the proprietary body, namely the lambardar, is put in sole charge of the village management and is empowered to take necessary action even as against a cosharer. No other course is possible to ensure efficient management.