MOJIZ FATIMA BEGAM Vs. ALI AKBAR

JUDGEMENT

(1.) This was a suit by three co-sharers against a lambardar for profits. One minor complication we may dispose of at once. While the second appeal was pending in this Court one of the three plaintiffs, by name Musammat Amir Begam, has compromised with the defendant lambardar. In the compromise it is stated that Musammat Amir Begam s, claim on account of the profits of her share has been completely settled out of court and she is content that the appeal, in so far as it relates to her share, be dismissed without any order as to costs. This order will be noted when we come to pass the final decree of this Court. The remaining two plaintiffs, who are entitled each to a one-tenth share in the divisible profits of this mahal, have elected to proceed with their appeal and it will have to be decided in respect of the shares of these two plaintiffs. We have come with reluctance to the conclusion that it is impossible for us to decide the appeal without more specific findings from the court below upon certain issues of fact. In this connection we may point out that the tabular statement filed by the patwari, on the strength of which the court of first instance arrived at certain figures as representing the divisible profits of the mahal, is full of palpable mistakes. We have made an attempt to use it for the purpose of arriving ourselves at a final determination of the suit, but have found it impossible to . do so because of the errors above mentioned.

(2.) We now proceed to consider the questions raised by the appeal. The suit was on account of the profits of the agricultural years 1321,1322 and 1323 Fasli. It is admitted that this is a mahal for which ordinarily a lambardar is appointed to collect renta from tenants and otherwise to act on behalf of the other co-sharers under Section 194 of the Local Tenancy Act (No. II of 1901). The lambardar who preceded the defendant respondent died in the month of July, 1913, that is to say, slightly before the commencement of the agricultural year 1321 Fasli. It is admitted that there was an interregnum. The learned District Judge says at the commencement of his order that the defendant, Saiyid Ali Akbar, was appointed lambardar on the 30th of August, 1914. If we could accept this as a clear finding of fact we should certainly have to recast the account on the basis of which the lower appellate court has framed its decree. It is true that the agricultural year 1322 Fasli had commenced before the 30th of August, 1914, but not a single instalment of rent on account of the Kharif of the said year had fallen due; consequently the realization of all rents falling due during the agricultural year 1322 Fasli would be the duty of the lambardar and there would be no basis whatever for the procedure adopted by the learned District Judge in limiting the lambadar s liability to the Rabi instalment, that is to say, to the second half of the agricultural year 1322 Fasli. When, however, this was pointed out in argument, the learned Counsel for the defendant pressed it upon us that there was nothing on the record, that he could discover, to warrant the learned District Judge s statement as to the date of the defendant s appointment, but that on the contrary the patwari had distinctly stated that Ali Akbar only entered upon his duties as lambardar from the Rabi of 1322 Fasli, that is to say, from the commencement of the second half of the said agricultural year. As the learned District Judge, has recorded a finding of fact in one sense and then worked out his decision in a different sense, we are not prepared to accept either as a finding of fact binding upon this Courf. We must, therefore, in any case, remit the following issue and we do so accordingly. 1. From what part of the agricultural year 1322 Fasli did the defendant enter upon his duties and responsibilities as lambardar? Was it from the commencement of the said year, or from the commencement of the second half of the year?

(3.) When this point has been finally settled a further question will arise with regard to the arrears of rent due on account of the period preceding the defendant s appointment as lambardar. There was, as we have already pointed out, an interregnum during which the mahal was not in charge of any lambardar. The duration of this interregnum was either one year or one year and a half. During that period there was a dispute as to the right of succession to the share of Saiyid Amir Haidar, the lambardar who had preceded the present defendant: as might be expected under the circumstances, collections during this period of interregnum were low and considerable arrears of rent accumulated. The earned District Judge has found, though we are unable to say on what precise evidence, that the defendant Ali Akbar as a matter of fact realized Rs. 300 on account of arrears of rent which had fallen due before his appointment as lambardar. He has very properly treated this sum. as part of the divisible, profits and framed his account accordingly. The contention of the appellants is, however, that from the date of his appointment it became the duty of the new lambardar to realize all arrears of rent due from tenants which had accrued due during the period immediately preceding his appointment and the right to recover which was not yet barred by limitation. Further, the applicants contend that if the defendant respondent was guilty of negligence or misconduct, in consequence of which these arrears still remained uncollected, he is liable to account to the co-sharers for the same by reason of the second clause of Section 164 of the Local Tenancy Act (No. II of 1901). The learned District Judge has disposed of this matter by holding that the lambardar, after the date of his appointment, could not have maintained a suit against any single tenant in respect of arrears of rent which had fallen due prior to the date of the defendant s appointment. If this is a correct proposition of law it is obvious that no duty lay upon the defendant in respect of these arrears and that it cannot be said that he had been guilty of any negligence in failing to realize the same. We are satisfied, however, that the learned District Judge is wrong on this point. This is a lambardari mahal, in which a lambardar is ordinarily appointed, not merely to collect rents from tenants, but, as is stated in the Board of Revenue s Circular on the subject, to act on behalf of the other co-sharers under Section 194 of the Agra Tenancy Act. Under Clause (1) of this Section the obligation imposed upon all cc- sharers to sue jointly for any arrears of rent due to them jointly is made subject to this exception, that if they have appointed an agent to act on behalf of them, the suit may be maintained by the said agent. In a lam-bardari mahal the lambardar is, from the date of his appointment, the agent appointed to act on behalf of the co-sharers, and he the only person who under Section 194, Clause (1), aforesaid, has a right to institute a suit against a defaulting tenant for the recovery of any arrear of rent not statute-barred. To hold otherwise would involve practical consequences of a very undesirable nature. In the present case, for instance, assuming for the sake of argument that the appointment of the defendant Ali Akbar as lambardar took effect from the middle of the agricultural year 1822 Fasli, and that arrears of rent were due from a tenant on account of the first half of that year, the result would be that before that tenant could be compelled to discharge his just liabilities, there would have to be separate suits, by the co-sharers for the first half of the year and by the lambardar for the second half of the year. It does not seem" to us that any such intention on the part of the Legislature is to be deduced from the wording of section . Section 194 of the Tenancy Act. Under the former Tenancy Act the contrary was clearly held by a Bench of this Court in Ganga Sahai v. Ganga Baksh Weekly Notes 1890, p 3. In a recent case, that of Bharat Indu v. Syed Muhammad Mustafa Khan (1919) I.L.R. 41 All. 316, this Court in remitting an issue to the court below clearly implied that a lambardar could obtain decrees under the Tenancy Act on account of arrears of rent which had accrued due prior to the date of his appointment. We are satisfied that this is a correct view of the law. As regards the present case, however, it requires to be considered what sort of evidence of negligence or misconduct on the part of the defendant lambardar would be required to discharge the burden of proof laid upon the plaintiff co-sharers by Section 164, Clause (2), of the Tenancy Ac t. It is easily conceivable that a distinction might require to be drawn in many cases between the degree of responsibility attaching to -a lambardar in respect. of arrears of rent which had accumulated during an interregnum prior to his appointment and his responsibility for the realization of the current demand as it fell due after the date of his appointment. If there were no other reasons for drawing such a distinction, it would be a sufficient reason to note that during the interregnum the power to realize rerts, and consequently the responsibility for doing so, had rewrted to the entire body of co-sharers. It will be necessary for us, therefore, before this appeal can be determined, to remit two further issues. We want to know, what were the accumulated arrears due from tenants of this mahal on the date on which the defendant assumed the office of lambardar and we must also have a finding from the lower appellate court as to whether any of those arrears, and if any, what portion, remained uncollected owing to negligence or misconduct on the part of the defendant. At present we have no real finding of fact on this point by the lower appellate court, because the learned District Judge has brushed the question aside upon his view of the law as to the rights of a lambardar to maintain suits for arrears of rent, from which we have been compelled to dissent. We, therefore, remit the following further issues: 2. What arrears of rent were due from tenants of this mahal on the date on which the defendant entered into possession as lambardar? The arrears referred to in this issue are rents not paid by the tenants to any person). 3. What portion, if any, of the said arrears retrained uncollected owing to negligence or misconduct on the part of the defendant?