KOKA Vs. CHUNNI

JUDGEMENT

(1.) This second appeal, which came up before a single Judge of this Court, has been referred to a Bench of two Judges on account of the apparent conflict between the case of Bishambhar Nath V/s. Bhola [1912] 34 All. 98, on the one side, and Ganga Singh V/s. Ram Sarup [1916] 38 All. 228 and Kundan Lal V/s. Basant Rai A.I.R. 1924 All. 935., on the other hand. The whole question involved is whether a lambardar can sue as lambardar any co-sharer who has occupied land bringing in an estimated yearly income in excess of the sum due to that co-sharer according to his fractional interest in the mahal.

(2.) An attempt has been made by the plaintiff-lambardar's counsel in this second appeal to show that the suit was not one of this description; and secondly that it was not treated by the lower Courts as one of this description. The former attempt must fail in view of the account filed by the plaintiff with his plaint. That account does not show the plaintiff's share in the mahal as a co-sharer. It claims from the defendants the whole of the excess in value of their khudkasht and sir land over the amount due to the defendants by reason of their fractional share in the mahal. It also credits the plaintiff with lambardar haq, It is, therefore, quite clear that the plaintiff is suing as a lambardar.

(3.) The trial Court, of which the decision has been upheld by the lower appellate Court, does appear to have treated the suit as one by the lambardar in his capacity as a co-sharer. The trial Court has ascertained the plaintiff's individual share and worked out what sum was due to him as an individual co-sharer. This involves a change in the nature of the suit from that actually brought. We might have been disposed to permit of such a change being made and uphold the decree of the lower Courts, if it were not open to objection on another ground than that the plaintiff's case had been changed in the course of hearing. But the lower Courts have, in our opinion, erred in one material point. They have allowed the plaintiff to claim the whole of the excess income in the hands of the two defendants because the plaintiff's share in the total profit of the mahal does not exceed (except by a few rupees) that excess. One co-sharer is not entitled to claim the whole of the excess in the hands of another co-sharer merely because he is short to that extent of his fractional share in the income of the mahal. All the other co-sharers, who are similarly short, are entitled to share in the excess income enjoyed by any one co-sharer, and they must be made parties to the suit by the one co-sharer. This fact was ignored by the trial Court. It was perceived by the lower appellate Court which attempted to meet it in the following way. The District Judge has stated that four of the other co-sharers admitted as witnesses (not as parties) that there was nothing due to them, and later on he states that the plaintiff's case is that he has paid off the other co-sharers what was due to them. This will not, however, satisfy the requirements of Section 165, of the Tenancy Act. A suit under Section 165 must be one for accounts primarily. It is necessary that there should be accounts showing that the plaintiff is entitled to the sum claimed. For this purpose it must be shown by figures that the other co- sharers have no claim to the excess which the particular co-sharer, who is plaintiff, is claiming. The fact that the plaintiff may have paid off another co-sharer out of his own pocket any money, will not give the plaintiff a right to recover the money so paid from a third co-sharer under Section 165. Section 165 is confined to a claim for a share of money collected in excess which is due to the plaintiff on the ground of its being so collected. One co-sharer cannot claim on behalf of another co-sharer merely by reason of making a payment to that other co-sharer without some transfer of the actionable claim which would be valid in law. No such transfer is set up in this case. So far, then, as the decree appealed against may be regarded as a decree in favour of an individual co-sharer, it may be impugned on the ground that the plaintiff respondent was not shown by the accounts prepared by the trial Court to be entitled to the sums decreed him, inasmuch as the claims of the other co-sharers were not included in that account. We are unable, therefore, to uphold the decree of the lower Courts.