Full Judgment
Dalal, J.
1. The plaintiff lambardar sued a tenant for recovery of rent and his defence was that he had paid it in good faith to one of the co-sharers Mt. Fatima. The Trial Court of the Assistant Collector accepted the defence and dismissed the suit. On appeal the learned District Judge held that the rent was not paid and even if paid the defendant did not do so in good faith. The learned Judge disagreed with the first Court and found that the defendant was a tenant of the proprietary body in general of the khata khewat in which the land in suit was included. He also disagreed with another finding of the first Court that the defendant was a tenant of Aft. Fatima alone. He then went on to discuss whether the plaintiff as lambardar was entitled to collect the entire rent from the defendant.
2. In the written statement the defendant had specifically pleaded that the lambardar had no right to realise rent in the mahal in suit. The learned Judge found as a fact by reference to entries in the settlement records that in this particular mahal there was a provision that each co-sharer collected his own rents. On this ground the plaintiff's suit was dismissed and he has come here in second appeal.
3. His learned Counsel argued that the point in controversy was concluded by the Full Bench ruling in the case of Gulzari Mal v. Jairam (1914) 36 All. 441. This view does not appear to me to be correct. What was held in that case was that where a lambardar has a right to collect rents from tenants in the village, he is entitled to maintain a suit for ejectment of a tenant without joining the other co-sharers as parties. Their Lordships observed (page 609 of report.)
We think that it is extremely improbable that Section 194 was intended to apply to the case of a lambardari village. If, however, it does apply, in our opinion, where the suit is brought by the lambardar in a lambardari village, strictly as lambardar, then the co-sharers must be deemed to have acted jointly through the person who is declared by law to be their representative.
4. This means that in the absence of any evidence to the contrary, a lambardar must be presumed to have been appointed an agent by the rest of the co-sharers to act; on behalf of them all under Section 194(1) of the Tenancy Act. It cannot convey the meaning that even where the lambardar is specifically debarred from collecting rents on behalf of all the co-sharers, he can against the wishes of the other co-sharers, act as their agent under Section 194(1).
5. In my opinion the point decided is one of presumption. If a lambardar sues a tenant either for the recovery of rent or for ejection, the presumption would be that he is appointed as agent to act on behalf of all the co-sharers. But it would be open to the tenant to prove that in that particular mahal the arrangement between the co-sharers was such that the lambardar cannot be treated as an agent of all the co-sharers. In Mojiz Faitma v. Ali Akbar (1920) 18 A.L.J. 435 Piggot, J., in delivering the judgment of a Bench observed at p. 438.
Under Clause (1) of Section 194 the obligation imposed upon all co-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 ho maintained by the said agent. In a lambardari mahal, the lambardar is from the date of his appointment the agent appointed to act on behalf of the co-sharers and is the only person who under Section 194(1) aforesaid has a right to institute a suit against a defaulting tenant for the recovery of any rent not statute burred.
6. This will be the ease when the contest lies between the lambardar and the tenant and there is no evidence of the appointment of the lambardar by all the co-sharers as their agent. This Court cannot have intended to hold that in spite of arrangements to the contrary between the co-sharers and 'lihd refusal of the co-sharers to appoint the lambardar as their agent, the lambardar should in virtue of his office be entitled to act as agent of principals who repudiate him. In every ease the question will be one of burden of proof. The lambardar in virtue of his office shall be presumed to be mi agent under Section 194(1) until the contrary is proved. The learned Judge of the lower Court was not justified in criticising the reasoning of a judgment of this Court that for a lambardar there was no necessity of specific evidence of his appointment as agent.
7. At the same time I do not agree with the arguments of the appellant's learned Counsel that every lambardar is entitled to act as agent of all the co-sharers of the mahal in spite of a contrary arrangement between the co-sharers, who have agreed to collect rent separately and not to appoint the lambardar an agent on their behalf.
8. It was suggested to me on behalf of the appellant that an issue should be remitted to discover whether the lambardar in this particular mahal had a right to collect rents or not. I think, however, that this point has been carefully gone into by the Judge of the lower Appellate Court and decided against the appellant.
9. There is an arrangement in this village that every co-sharer shall collect his own rent. Under the circumstances in this particular case the lambardar is not an agent of all the co-sharers.
10. The plaintiff may be entitled to recover his share of the rent but that question has not been brought into issue here, nor is it one of the grounds of appeal. Under the circumstances I am not prepared to remand the suit for a trial of that issue.
11. I dismiss this appeal with costs.