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Kamta Singh Vs. Mukhta Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All287
AppellantKamta Singh
RespondentMukhta Prasad and anr.
Excerpt:
lambardar and co-sharer - suit for profits--nature of liability of two lambardars for the same village--res judicata. - .....the profits of the village. the defence set up was that the plaintiff was wrong in suing both the defendants jointly, and that he should have sued each one of them separately for the amount of the profits which might have been collected respectively by each. now as to that matter our learned brother remarks: 'i would have thought that the office of lambardar, even though exercised by several persons, was a joint office and that the fact that each made separate collections was a mere matter of convenience between themselves.' in this view of the law we entirely concur. when these two defendants were appointed lambardars, they were appointed jointly as lambardars responsible to government for the payment of the revenue of the joint mahal and responsible jointly to the co-sharers for their.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. This is an appeal from a decision of a learned Judge of this Court affirming the decision of the District Judge, which upheld the decree of an Assistant Collector of Etawah. The suit is one by the plaintiff, a co-sharer in the village, to recover his share of the profits of the village from the two lambardars, Mukhta Prasad and Musammat Mohan Kunwar, for the years 1309 to 1310 fasli. The plaintiff owns about 112th of the village and is entitled to that proportion of the profits of the village. The defence set up was that the plaintiff was wrong in suing both the defendants jointly, and that he should have sued each one of them separately for the amount of the profits which might have been collected respectively by each. Now as to that matter our learned brother remarks: 'I would have thought that the office of lambardar, even though exercised by several persons, was a joint office and that the fact that each made separate collections was a mere matter of convenience between themselves.' In this view of the law we entirely concur. When these two defendants were appointed lambardars, they were appointed jointly as lambardars responsible to Government for the payment of the revenue of the joint mahal and responsible jointly to the co-sharers for their shares of its profits. The fact that these two lambardars for convenience sake may have divided the village amongst themselves and one of them may have collected profits in one portion and the other in another portion is a matter with which the other co-sharers have no concern. It is a matter of private arrangement made by the lambardars for their own convenience. It is an arrangement which may be retained or altered from year to year if the lambardars so chose, but it does not compel any one co-sharer to look to any one lambardar as the person responsible to him for his share of the profits.

2. Great reliance is placed on a question of res judicata which arises out of a decision by an Assistant Collector of the first class in a previous suit. That suit was by the same plaintiff against the same defendants. The latter pleaded that they were not liable to be sued jointly and the Court of the Assistant Collector held that that plea was correct and dismissed the suit. The plaintiff did not appeal, but instituted two separate suits. It is contended that the decision of this case is res judicata and governs the present case. In that argument we are unable to concur What was then decided in that case was that the two lambardars were not jointly responsible to the plaintiff for his share of the profits of the year then in suit by reason of the arrangement between the defendants. The present suit has nothing whatever to do with the profits that were in suit then. For all we know the arrangement between the lambardars may have changed completely; but as a matter of law the defendants are jointly responsible to the plaintiff for his share of the undivided profits of the mahal. It is futile for the defendants--and specially the defendant Mukhta Prasad--to say to the plaintiff: 'I have collected a very small share of your profits; therefore you should not sue me jointly with the other defendant; you must sue both separately.' That, we think, is not the correct view of the law in view of the joint responsibility of the respondents. This suit has been dismissed in all the lower Courts on the ground that the decision of the Assistant Collector, to which we have just referred, operates as a res judicata. In our opinion that conclusion, is wrong. We must therefore allow this appeal, set aside the judgment of all the lower Courts as also of the learned Judge of this Court, and as the suit was decided in the Court of first instance on the preliminary point that it was not maintainable against the two defendants, we remand the record through the lower appellate Court to the Court of first instance under Section 562 of the Code of Civil Procedure to be replaced on the file of pending cases and tried on the merits. Costs here and hitherto will abide the event.


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