1. This is a suit under Section 159 of the Tenancy Act to recover revenue paid to the Government by the plaintiff as lambardar on behalf of the defendant who is a co-sharer under his lambardari.
2. The facts of the case are unusual. The lambardar is the person primarily responsible under Section 144 of the Land Revenue Act for paying the revenue into the tahsil. It is the duty of the co-sharers to pay their quota through the lambardar. If the revenue is not paid, it is the lambardar who in the first instance will be subject to coercive process. In this case the revenue in dispute relates to the years 1325 and 1326 fasli. The revenue of 1325 was paid by the lambardar into the tahsil in two instalments on the 5th February, 1918 and 7th June, 1918 respectively.
3. A week later, on the 11th February, 1918, the defendant paid into the treasury direct her share of the first instalment which had already been paid by the lambardar. The second instalment was Similarly paid by her on 2nd July, 1918, nearly a month after the payment by the plaintiff. The defendant in making the payment did not state that it was being made on account of the share held under the lambardari of the plaintiff. She wrongly entered her own name as lambarar, and instead, of recognising that the payment was being made twice over, the tahsil officials by mistake credited the revenue to the account of two other lambardars, this being a village in which there is more than one lambardar. In 1320 the plaintiff paid the revenue due from him, including the defendant's share, in three instalments, on 1st February, 8th July and 16th August, 1919 respectively. The defendant paid in two instalments, on 3rd March and 27th June, 1919. The plaintiff, when he paid his second and third instalments, had not been informed and was not aware that any payment had been made by the defendant.
4. The defendant again failed to inform the tahsil officials that the money was being paid on account of the share held under the plaintiff's lambardari, and the tahsil officials again made a mistake in entering the amount to the credit of another lambardar. In the lower Court a reference was made to Rule 13 of the Board of Revenue Circular 1-III reprinted by Dr. Agarwala on p. 347 of his Land Revenue Act, 6th edition, which says that, though it is the duty of the co-sharers to pay through the lambardar, any payment made direct into the treasury by a co-sharer shall be credited to the account of the lambardar and be deemed to have been made through him.
5. The learned Additional Judge rightly held that this rule does not affect the case. It is primarily a direction to the Revenue Officials and any rules made under the Act must under Section 234 be consistent with the Act and cannot in any way affect the duty of a co-sharer to pay through the lambardar as provided by Section 144.
6. The money having been paid into the tahsil twice over, the question is who is to suffer, the plaintiff who complied with the law in every respect, or the defendant, who made the payments irregularly contrary to Section 144, did not inform the lambardor and gave incorrect information to the tahsil officials, which may have been partly responsible for their error in crediting the amounts. Under these circumstances there can be no question that if any one has to suffer it must be the defendant. The plaintiff has paid in good faith and in accordance with law the money flue from him on account of the defendant's share, and he is entitled to recover it under Section 159. I must, therefore, and hereby do, dismiss the appeal with costs including in this Court fees on the higher scale.
7. At the same time I see no reason why it should not be -within the power of the Revenue Officials to repay to the defendant the excess payment made by her. It is purely due to the mistake of the tahsil officials that the money has been credited to a wrong khata. I direct that a copy of this judgment be sent to the Collector with a recommendation that steps should be taken to give the defendant a refund of the money paid by her which had already been paid on her account by the lambardar.