KISHORI LAL Vs. TODAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellant for his share of the profits of two properties which may be called khata No. 1 and khata No. 2 in mouzah Chiti. The suit relates to the years 1314, 1315 and 1316 Faslis. The appellant was a recorded co-sharer during the years in question. Respondent was lambardar of khata No. 1 during the same period. The claim for profits in khata No. 2 is not before as in appeal and may be disregarded.

(2.) In khata No. 1 there were five co-sharers, each owning a one-fifth share. Bach of them was in possession of separate lands on account of his share. In other words, the whole property was held by them as sir or khud kasht. The actual cultivators of the land were treated as the tenants of one or other of the co- sharers. The whole of the share of one of the co-sharers named Charan Singh excepting ten bighas was sold at execution sales to the appellant in or before 1901. The remaining ten bighas were sold to the respondent. The result was that Charan Singh became ex proprietary tenant of the whole of the lands constituting his share. At the instance of the appellant the Revenue Authorities fixed the rent to be paid by Charan Singh. In August 1904 the appellant sued Charan Singh for the rent of his holding for the years 1309, 1310 and 1311 Faslis and obtained a decree. In July 1905 the appellant had Charan Singh formally rejected from the holding on account of nonpayment of the amount decreed. Bat, as so often happens in such cases, Charan Singh did not give up the land and in January 19C6 the appellant brought a suit against him in the Civil Court for possession and for mesne profits. Charan Singh pleaded that he was tenant of the land and was referred to the Revenue Court which held that he was no longer tenant of the land. The Munsif then gave the appellant a decree for possession and for mesne profits and his decree was affirmed on appeal in June 1907. Shortly after that, the respondent commenced proceedings for partition of the lands comprised in the khata. In the course of those proceedings, in January 1910, the appellant presented a petition to the Court in which he urged that what had been Charan Singh s land was hip, the appellant s, separate maqhuza and should be allotted to him. The present suit was instituted in June 1900. The appellant claims his share of the profits of the land in the khata for the years 1314, 1315 and 1316 Fashis. He admits, or rather his learned Pleader in this Court, admits, that the respondent did not in fact collect the rents of what has been described as the appellant s maqhuza, i.e., the land which was Charan Singh s holding less the 10 bighas above mentioned, but he says that it was the duty of the respondent as lambardar to collect those rents and the respondent is liable for them under Section 164(2) of the Tenancy Act. The respondent has pleaded and it has been found that each of the original co-sharers was in possession of separate lands on account of his share. He urges that Charan Singh became the tenant of the appellant in respect of all the lands constituting that share; that the appellant alone has been in possession of those lands through Charan Singh, and that he (the respondent) has never been in possession or collected the rents thereof. The question whether a co-sharer in a zemindari becomes on the transfer of his share the tenant of the transferee alone or of the whole proprietary body has been discussed before us at length, of Chote Lal v. Ramadhin 13 O.C. 70 : 5 Ind. Cas. 945 Evans J. and I held that the co-sharer becomes the tenant of the transferee alone. In Bhagwandin v. Vehi Prasad 12 Ind. Cas. 630 decided on October 31st, 1911 Griffin, J., held that the co-sharer becomes the tenant of the whole proprietary body, and the Rame view is involved in the decision of Stanley, C.J, and Banerji, J., in Second Appeal No. 538 of 1807 decided on March 19th, 1909. The difficulties pointed out in our judgment in the case of Chote Lal v Eamadhin 13 O.C. 70 : 5 Ind. Cas. 945 are not noticed in either of the decisions in this Court and I cannot say that I am convinced that the view taken in them is correct. At all events, I see no reason why the transferor should not pay his rent to the purchaser alone where, as in the present case, there has been a kind of private partition which no one wishes to disturb. But even if it, is assumed that the correct view is that, taken in the two unreported cases in this Court, I think that this appeal should be dismissed. In the present case, as in the Oudh case, all parties concerned seem to have assumed that the co-sharer became the tenant of the transferee alone. Whether that view was correct or not does not appear to me to be a matter of any importance in the present case. We are asked in effect to hold that the respondent negligently and improperly failed to collect the rents in what was Charan Singh s holding. Before we can do this we must look at the facts. It was the appellant who applied to the Revenue Authorities to fix the rent to be paid by Charan Singh. It was the appellant alone who sued Charan Singh for his rent for the years 1309-1311 Faslis. It was the appellant alone who had him ejected in execution and it was the appellant, alone who brought another suit against him for possession in the Civil Court. The other co-sharers took no interest in those proceedings and allowed the appellant to establish a claim to separate possession of the bulk of Charan Singh s holding. As late as January 1910 we find the appellant laying claim to the holding as his peculiar property. In these circumstances, I do not see how it is possible to hold that the respondent has negligently and improperly allowed the rent of the land to remain uncollected. If the decisions in this Court mentioned above are correct then, as a matter of strict law, the respondent might perhaps have been able to obtain decrees against Charan Singh. He is related to Charan Singh and, therefore, probably was not anxious to bring suits against him, but he would certainly have been opposed by the present appellant had he attempted to compel Charan Singh to pay rent to him. It is quite obvious that the appellant fir years treated Charan Singh as his own separate tenant and tried by every means in his power to recover rent from him. When he failed, he tried to get possession of the land from Charan Singh and when the partition proceedings began he claimed the land as his separate property. It was only when all his endeavours to obtain the profits of the land had failed that he turned round and attempted by the present, suit to get the profits from the respondent on the ground that the latter had improperly and negligently allowed the rent to remain uncollected. It was urged by the respondent that the appellant is not estopped from asserting his strict rights by any action that he has taken against (he respondent. I am prepared to concede that bat, in face of the various proceedings taken by the appellant, is it possible to bold that the respondent should have collected the rent? It seems to me that he cannot have supposed that he was under any obligation to collect the rents. The sale of Charan Singh s share did not necessarily put an end to the private arrangement which bad subsisted for years between the co-sharers whereby each collected his own rents and there was no settlement of accounts between them. If the purchaser of Charan Singh s share and the old co-sharers also were willing that it should continue (and all that has happened since the sale of the share seems to show that they were willing) I see no reason why the lambardar should be bound to put an end to it. Something was said about such an arrangement not being sanctioned by law but such an arrangement is exceedingly common and is certainly not illegal. It is designed to prevent, friction between the co-sharers. On the facts it seems to me impossible to hold that the lambardar has been guilty of negligence in failing to collect the rents of what was Charan Singh s holding. I would dismiss this appeal with costs. Karamat Husain, J.

(3.) The facts of the case are set out in the judgment of ray learned brother and need not be repeated. I he decision of the appeal, in my opinion, turns upon determining whether a co-sharer in an undivided mahal on the transfer of his share becomes in respect of his sir an ox-proprietary tenant of the transferee or of all the co-sharers in the mahal.