(KHAN) ALI KHAN Vs. MASIHUZZAMAN KHAN

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiff-respondent for a declaration that the defendant, who is the lambardar of the village, is not entitled to collect rent in Patti Masihuzzaman Khan, now belonging to him, the plaintiff, exclusively and for a perpetual injunction restraining the defendant from interfering with the plaintiff's right to collect rent in that patti. It appears that the village was undivided till 1333 F., when by an imperfect partition-two pattis" were made, one being Patti Masihuzzaman Khan allotted to the plaintiff-respondent. The defendant, who was the lambardar of the village before the partition, continued as such thereafter He claimed a right to collect the rent of the whole village, including Patti Masihuzzaman Khan, by virtue of his office as lambardar. This was objected to by the plaintiff-respondent, who brought the suit which has given rise to this appeal.

(2.) The defence was that, by virtue of his-office as lambardar and under a local custom, the defendant was entitled to collect, rent not only in his own patti, but in. Patti Masihuzzaman Khan, in which admittedly he had no other interest than, that of a lambardar. The Court of firs instance upheld the defence and dismissed the suit. The lower appellate Court, on appeal by the plaintiff, took a contrary view and decreed the plaintiff's suit, granting the reliefs of declaration and injunction, as prayed for by the plaintiff-respondent. Hence this second appeal by the defendant.

(3.) Reliance is placed, by the learned advocate for the appellant, on the provisions of the Dastur Dehi prepared in 1305 P., and on a clause in the scheme of partition. It is argued that the conjoint effect of the two is to maintain the status quo ante in the matter of collection of rent by the lambardar. The entry in the Dastur Dehi entitles the lambardar to collect rent payable in respect of joint property and to distribute it among the cosharers. The scheme of partition records that the provision of the Dastur Dehi, already referred to, shall remain intact. It appears to us that the Dastur Dehi entitled the lambardar to collect rent payable in respect of common land or other joint interests of the whole body of cosharers. It did not in terms, at any rate, empower the lambardar to realize rent payable in respect of lands held by any cosharer in severalty. The scheme of partition did not introduce any change in this respect, with the result that if, after the imperfect partition that has since been effected, there are any common lands or joint interests of the cosharers in respect of which rent is payable to them all, it is the lambardar who is entitled to make collections and to pay to the cosharers their shares of the profits. But, in so far as the land held by any cosharer in severalty or as part of his patti, in which no other cosharer has any interest is concerned, the lambardar can have no right of interference with the collection of rent by the owner, who alone is entitled to appropriate the profits accruing therefrom.