LACHHMAN SINGH CHANDER SINGH Vs. MOTISINGH UMEDSINGH

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against a judgment and decree dismissing an appeal from the trial Court's decree which in turn dismissed the plaintiff's claim. The plaintiff sought a declaration that he was entitled to exclusive possession of certain land, alternatively he claimed contribution. In this Court the appellant restricted the matter in dispute to fields Nos. 269 and 270 of mouza Atud. Bhikari. (In the lower Courts those fields the plaintiff had claimed exclusive possession of, alternatively he claimed contribution.) In the result he has been refused any relief. He has even been disallowed a share in those fields. That result has been arrived at on the following facts: The plaintiff and the defendants were co-owners of the village Atud. Bhikari. Defendant 1 was the lambardar. Fields Nos. 269 and 270 were in the possession of a tenant, who we will refer to as X. The plaintiff, though not the lambardar, purported to take a surrender of those fields from X and paid to X the consideration of Rs. 3000. An application was made by the lambardar under Section 13, Tenancy Act, which application ended with an order, dated 19th June 1933 putting the lambardar in possession and directing the, present plaintiff, if he wanted joint possession to apply to the Civil Court. Before the passing of that order partition proceedings were commenced which ended on 5th September 1933. The learned lower appellate Judge in para. 1 of his judgment observes that the possession ordered to be given to the lambardar will of course be a possession of the lambardar Motisingh in his representative capacity on behalf of all cosharers including the plaintiff himself.

(2.) HE has nevertheless held that the plaintiff is not entitled to any share because he has not proved that under the partition he has had allocated to him any such share. The defendants have also failed to prove that under the partition any share in those fields has been allocated to them for the partition award has not been proved. In those circumstances counsel for the respondents faintly argued that the decree as it stands can be supported. We are clearly of the opinion that, the lambardar having been shown to have received possession in those circumstances he receives on behalf of all and unless the contrary is proved the plaintiff is entitled to receive his share in those fields which share is 0-3-9, and the decree will be modified accordingly. There remains the more difficult question of whether there is any equity Which justifies the Court decreeing that the other cosharers, who have obtained vacant possession through the lambardar of a share, shall contribute to the plaintiff a proportionate share of the consideration paid by the plaintiff whereby the tenant was in fact caused to give up possession. It may be material to observe, when considering the equities, that as regards other fields defendant 2, who, like plaintiff, was not the lambardar, paid money in similar circumstances and has received share from his cosharers. The difference between the cases is that defendant 2 and the lambardar are on friendly terms and consequently an arrangement along those lines was come to without resort to Section 13, whereas the lambardar and plaintiff are not on good terms and the machinery of Section 13 was resorted to and it is as a result of the order made under Section 13 and not because of any agreement come to that the lambardar was put in possession of the disputed fields. In point of fact the plaintiff remained in occupation of those fields but after the order above referred to we consider it clear that in law the lambardar must be deemed to have been in possession.

(3.) IF such an application be made, the revenue officer must (subject to certain conditions relating to the fulfilment of duties owed by the tenant) place the lambardar in possession. Such officer has no power to put him on any terms so as to give effect to equities which might be outstanding. To show how clear such equities may be we posed the following case: A and B are cosharers and both claim to be lambardar. Who in truth is lambardar becomes the subject of litigation. In the High Court it is decided that A is and A therefore takes a surrender and pays money for such surrender. Then on appeal to the Judicial Committee B is held to be lambardar. Thus A's act in taking a surrender becomes an unlawful act. B applies before the revenue officer under Section 13 to be put in possession. That officer cannot listen to any question about lis pendens or bona fide mistake and is bound to put B into possession (of course on behalf of A and B) without putting B on terms to return to A half the consideration. Cannot A recover such half in a Civil Court ? That case is a harder case than the present. Here, the plaintiff, so far as we know, had no reason to think he was the lambardar. It is also clear that a tenant should not be permitted to burden his "cosharers with an excessive or unnecessary payment by arrogating to himself rights which belong to the lambardar. But the proposition has been argued that under no circumstances can the person whose money has caused the tenant to vacate claim any share of that money from his cosharers when the lambardar has been put in possession pursuant to the provisions of Section 13.