Grimwood Mears, C.J. and Piggott, J.
1. This was a suit in which the lambardar of a certain village claimed from the entire body of co-sharers the remuneration, at the rate of 5 per cent. on the revenue payable in respect of their shares, to which he was entitled under the provisions of Section 144 of the United Provinces Land Revenue Act, Local Act No. III of 1901, subject to rules properly made by the Board of Revenue under Section 234 of the said Act. The rules which were so made have been laid before us, and they seem on their wording clear and simple enough. They are reproduced at page 132 and the following pages of Dr. M.L. Agarwala's valuable Commentary on the United Provinces Land Revenue Act, edition of 1919. They appear to have been promulgated in the year 1902. By paragraph 22 of the said rules, where there was in existence on the date on which those rules came into force an agreement between the lambardar and the co-sharers fixing the amount which the lambardar, by virtue of his appointment, was entitled to receive from the co-sharers by way of remuneration, such amount was to continue to be payable, subject to the rule which immediately follows. That rule is in the following words:
(No. 23) 'Where no amount is so payable, or where, upon the expiry of the current settlement of a temporarily settled mahal, the agreement is repudiated by either or both the parties thereto, the lamburdar will be entitled to receive from the co-sharers whom he represents 5 per cent. upon the land revenue payable by them in respect of their shares, or such less amount as may be agreed upon between him and them.
2. On its plain wording this rule seems to mean that the lambardar is always to get some remuneration, either a remuneration the amount of which is to be fixed by agreement between the co-parcenary body generally, or the 5 per cent. prescribed by the rule itself. This is the plain effect of the words 'when no amount is so payable.'
3. On the finding which has been returned, and upon which the decision of the learned Judge of this Court is based, there is no amount payable to the plaintiff lambardar by agreement. The alternative seems to follow; the co-sharers, unless they can persuade the lambardar to come to an agreement, or can come to an agreement amongst themselves before the next lambardar is appointed and secure the appointment of a lambardar willing to come to terms, will have to continue to pay the 5 per cent. on the land revenue prescribed by the rules. This was the view taken by the Assistant Collector who tried this suit in the first instance. The learned District Judge in appeal, and a learned Judge of this Court in second appeal, have construed the words at the beginning of Rule No. 23, above quoted, as if they meant 'where no agreement has been come to as to the amount payable to the lambardar.' Beading the rule in this way, they have held that the parties to this litigation are governed by an agreement to the effect that nothing is to be paid to the lambardar. The criticism which occurs to one on this interpretation of the rule is that, if the Board of Revenue had intended the effect to be what the lower appellate court and the learned Judge of this Court have held, it would have been quite easy to say so. As they stand, the words, 'where no amount is so payable,' do mean that the provisions which follow in the same rule are to come into force in all cases where there is not some ascertainable amount payable to the lambardar by virtue of an agreement.
4. The rule says 'where no remuneration is payable to the lambardar in virtue of any agreement.' These defendants reply: 'In the present case there is an agreement in virtue of which no remuneration is payable.' On the plain wording of the rule, is it not correct to say to the defendants:-- 'Your case falls within the scope of the rule; it is one of the cases in which the rule was intended to operate?'
5. The contention which found favour in the courts below seems to have been, in substance, that the Board of Revenue could not have intended the rule to mean what its words apparently say, because of certain consequences which would follow upon any attempt to apply the rule according to its apparent meaning. The contention is that it would be easy for the co-sharers at any settlement to agree amongst themselves that the lambardar shall receive a merely nominal remuneration. This is perfectly true; but it by no means follows that the Board, of Revenue when it brought this rule into force did not intend to strike at all existing agreements under which the remuneration of the lambardari was to be nil, and so to bring pressure to bear upon the co-sharers to come to reasonable terms, subject only to the condition that the lambardar was to get some remuneration in every case. Eevenue Officers who have had experience of the extreme difficulty sometimes met with in getting any co-sharer to accept the office of lambardar in particular villages where the great bulk of the cultivated land consists of sir and khudkasht, or where an informal partition has in effect divided up all the lands of the village, so that each individual co-sharer practically collects rent equivalent to his own rateable share in the net profits of the mahal, will readily understand that the Board of Eevenue may have had a deliberate purpose to serve in insisting that in all cases the lambardar should receive at least some remuneration. When all is said and done, even when there are no rents for the lambardar to collect as such, and where the co-sharers concerned take it upon themselves to pay in their individual quotas' of land revenue at the Tahsil, instead of making payment through the lambardar (though as a matter of fact such cases must be rare, for it is distinctly against the interest of sound administration that revenue should be collected in small fractions from a number of co-sharers, rather than from the duly appointed lambardar of the mahal), even then the fact would remain that the lambardar by virtue of his office would be the first person against whom coercive process, by way of arrest or otherwise, would issue in the event of any default in the payment of land revenue. In determining this appeal, therefore, we are content to base our decision mainly on the wording of the rule of the Board of Revenue which we have quoted above. The particular facts of this case, however, are deserving of. attention. At the settlement of 1285 F., before the Board of Revenue had issued the rule in question, there was an agreement between the co-sharers that the lambardar should receive no remuneration. At a subsequent settlement (in 1312 F.), the plaintiff contends, this agreement was expressly abrogated. He has failed to prove that it was so abrogated ; but, on the other hand, there is no evidence that it was re-affirmed. Our opinion is that, if the co-sharers as a body desired to contract themselves out of the scope of the Board of Revenue's rule, they ought to have agreed upon some nominal remuneration for the lambardar. The effect of the rule is to place the latter in a strong position; he can bargain with the co-sharers for some reasonable remuneration, under throat of standing upon his extreme rights and claiming his full 5 per cent. on the land revenue. If the agreement of 1285 F. had been, expressly and in terms, renewed in 1312 F., we might perhaps have hesitated as to our decision, though still holding that the plaintiff's claim was within the letter of the rule. As the case stands, we are clearly of opinion that the agreement relied upon by the defendants, even if it survived the enactment of the Board of Revenue's rules of 1902 (which we doubt), came to an end automatically at the close of the settlement for which it was made and could have no effect on the rights of the lambardar thereafter at any rate, unless it were proved that it was expressly renewed.
6. We, therefore, allow this appeal, set aside the decree of the single Judge of this Court and that of the District Judge, and restore the decree of the court of first instance. The plaintiff will get his costs throughout, including those of both hearings in this Court.