SITARAM SADASHIV PARADKAR Vs. VITHAL PADHYE

JUDGEMENT

(1.) The two suits out of which these appeals arise and two other companion suits were filed by four out of five sharers in the sharakati khoti village Choravne in Ratnagiri District, to recover the difference in the survey rates and the mamul rates for the years 1931-32 to 1936- 37 from the knots of the village. A village is called sharakati when Government receives a percentage of the land revenue and in this village Government and the inamdars have each an eight annas share. In 1885 Government introduced survey settlement in the village without the consent of the inamdars. Some of the plaintiffs are the descendants of the original inamdar and the others are alienees. The plaintiffs in these two appeals hold one anna share and three annas share and the plaintiffs in the two suits in respect of which there have been no appeals hold five annas share and two annas share respectively. The remaining five annas share is held by Vinayak Govind Dixit Athalye whose name is entered in the alienation register as the registered holder.of the inam village. Out of the nine defendants defendant No. 9 owns a share of four annas and 20 rcsas in the entire khotki of the village and the other defendants are the mortgagees of the khotki with possession The plaintiffs in each of the four suite claim that they are entitled to recover from the khots mamul rates. During the years in suit 1931-32 to 1936-37 the village was under attachment by Government and the village officers recovered land revenue (jama) from the khots according to the survey rates settled at the survey of 1885. Half the amount thus recovered was paid to the registered inamdar Vinayak Govind and he distributed it among his co-sharers according to their shares. The plaintiffs, however, claim that they are entitled to the mamul rates which are more than the survey rates. The registered holder has apparently not joined them in this claim. The plaintiffs, therefore, brought this suit to recover from the khots the difference between the mamul rates and the survey rates already paid to them through the registered holder. Both the Courts below have dismissed all the four suits on two grounds, viz. that the suits as framed are not maintainable as the plaintiffs should have sued the registered inamdar who was responsible to make recoveries on their behalf and distribute the amount among them and that the survey having been validly introduced in the village the plaintiffs are not entitled to recover anything more than the survey rates which superseded the mamul rates.

(2.) In Narhar Sonajee V/s. Trimbak Shridhar it is laid down, that where the name of a co-sharer of an inam village is not registered as a sharer in village form No. 3 and he is not recognised as a managing inamdar, he cannot bring a suit in a civil Court to recover his own share direct from a khatedar of the village. He must sue the managing inamdar for an account and recover his share in the land revenue which may have been recovered or which may have been negligently omitted to be recovered by the managing inamdar. The managing inamdar is liable to account to his co-sharers not only for the land revenue recovered by him through the village officers, but also by way of damages for whatever he has failed to recover owing to negligence or laches or through his own default, The correctness of that ruling is not disputed, but. it is urged that there is no managing inamdar for this village and in village form No. 3 as given in Anderson's Manual of Revenue Accounts there is no column for the entry of the name of the registered inamdar. But as pointed out in para. 171(2) at p. 142 of Joglekar's Alienation Manual, in every inam village the nearest heir or his assignee according to the tenure in each case is entered in Government account as the inamdar who has the sole right to manage the village, i.e. to recover revenue etc. And in this particular case Exhibit 59 shows that the name of Vinayak Govind Dixit Athalye was entered in col. 4 of the alienation register as the registered holder of the inam. Both the Courts below, therefore, held that he was the managing inamdar and as such was responsible to recover the inam dues and distribute them among his co-sharers. As he was the sole registered holder, Government recovered the survey rates during the period of attachment of the village, kept half the dues and made over the remaining half to him. It is admitted that he distributed that amount among his co-sharers, but did not take any steps to recover the difference between the mamul rates and the survey rates. If he was negligent in doing so, the proper remedy for the co-sharers was to sue him as held in the case cited above. But according to the custom prevailing in! this village the registered holder was not the managing inamdar ; on the other hand on several occasions since before 1388 individual co-sharers filed suits against the khots and recovered their individual shares in the mamul rates (Exhibits 50 to 56 and 58). The learned District Judge has observed that in those suits no objection was taken by the khots to the maintainability of the suit on the ground that they were not liable to be sued and that the suits should have been filed against the managing inamdar. But the fact remains that there was a tacit consent on the part of the khots to allow individual co-sharers in the inara to recover from them their respective shares in the mamul judi. Ordinarily where there are several co-sharers and none of them is a recognised managing co-sharer, all the co-sharers should bring a suit to recover the whole of the amount due to them. This principle was considered in Pmtmda Nath Roy V/s. Ramctni Krnita Roy (1907) I.L.R. 35 Cal. 331 Although that was a case under the Bengal Tenancy Act, their Lordships observed that it was a general rule a rule not derived from the Bengal Tenancy Act, but from quite another branch of law, namely, the general principles of legal procedure that a sharer, whose co-sharers refused to join him as plaintiffs, could bring them into the suit as defendants, and sue for the whole rent of the tenure. It was further observed that where by express or implied agreement between the zemindars and the putnidars, the shares in the putni rent of the several zemindars were to be paid, and so far as they were paid at all, were, in fact, paid separately, each zemindar was entitled to sue separately for his respective share. In that case the evidence of such an implied agreement consisted of certain decrees showing that the shares of the rent had been from time to time separately recovered and their Lordships said that the agreement thus implied by the conduct of the parties might (establish the right to sue separately for the shares of rent receivable by the separate share-holders. Similarly in the present case also an understanding between the co-sharers in the inam and the khots might be inferred from the various decrees individually obtained by them for their respective shares in the rent. That also shows that although there was a registered inamdar, yet he was not recognised as the manager on behalf of all, since he allowed each sharer to bring separate suits to recover his share in the dues without any objection on the part of the khots. In view of this practice we think that the suits as framed must be held to be maintainable.

(3.) The next question is whether the plaintiffs are entitled to recover from the khots mamul rates or only survey rates. Choravne is a sharakati inami khoti village. In such a village we are concerned with four parties, Government, the inamdar, the lihot and the privileged occupants, and it is necessary to understand the mutual relations between them. It must be presumed that the village was a khoti village and Government granted in inam half its rights in the village to the inamdar. Since then the inamdar stands in the position of Government in respect of the village to the extent of one half, subject to the liability of paying judi (if any) to Government. (See Supplement to Anderson's Manual of Revenue Accounts, 1942, p. 16, paragraph 57). "Sharakati" means a partnership, and in this sharakati village Government and the inamdar may be said to be equal partners, possessing cognate rights over the khot andthe occupants. Under Section 4 of the Khoti Settlement Act, 1880, a khot is entitled to continue to hold his village conditionally on the payment of the amounts due on account of the jama of the village. Section 24 of the Act provides : The jama payable to Government by the Khot shall be the aggregate of the survey assessments of the lands of the village minus such percentage of deduction, if any, as Government may in each, case direct. The amount of the said jama shall be from time to time fixed for the same period for which the survey assessments are fixed.