1. This appeal arises-out of a suit for arrears of rent brought by the appellant, professing to act as 'lambardar' of 'mahal' No. 3 in village' Chaurihanpur, District Shahjahanpuiv It is not disputed that this 'mahal stands subdivided by an imperfect partition into a number of 'pattis' one of which is patti Peru Singh. It is also-not in dispute that the plaintiff-appellant has no proprietary interest in Patti Pem Singh. The land for which rent is claimed from the defendant-respondent. Subedar Singh, who is alleged to be the-tenant, is in its entirety situate in Patti. Pem Singh. The suit was contested inter alia on the ground that the plaintiff-appellant is not empowered to collect rent in Patti Pem Singh. Both the lower Courts have dismissed the suit, holding that the plaintiff-appellant is not entitled to sue the defendant-respondent for rent, assuming it is payable by him, in respect of the holding in dispute-which is also in controversy.
2. In second appeal by the plaintiff-appellant, it is contended on his behalf that the 'lambardar' of a 'mahal' is the only person authorized to collect rent in respect of land within that ' mahal ' though it may be situated in a 'patti ' in which the 'lambardar' himself is no eosharer and has no proprietary interest. We are clearly of opinion that this contention is not warranted by the language of Section 265, Agra Tenancy Act, on which the contention is based. Sub-section 1 of that section runs as follows:
The lambardar in an undivided mahal or in the common land of the mahal, thok or patti of which he is the lambardar is entitled in the absence of any contract or usage to the contrary to collect rents and other dues.
3. The plaintiff-appellant is not a lambardar in an undivided mahal. It is argued that he is entitled to collect the rent payable in respect of land in Patti Pem Singh, which is ' common land ' so far as cosharers of that patti are concerned, and that it is not necessary that the lambardar should be one of the cosharers qua such land. In our opinion,, a lambardar is not entitled to collect rent, unless the land for which rent is claimed belongs to all the cosharers of the mahal, if he is the lambardar of the mahal, or to all the cosharers of the patti if he is the lambardar of the patti. In every case it is necessary that the lambardar should have a community of interest Svith other cosharers in the land for which rent is claimed. If the lambardar has no proprietary interest in such Hand, as is the case before us, he is not empowered, by Section 265(1), Agra Tenancy Act, to collect rent in respect of such land. Another Division Bench of this Court has taken the same view of Section 265 in All Khan v. Masihulzaman Khan : AIR1932All152 . Accordingly we uphold the view on which the decree of the lower appellate Court proceeds.
4. Reliance is also placed on Section 132 of Act 3 of 1926. That section however merely provides that arrears of rent shall be recovered
by suit, or by distraint, or by notice through the tahsildar, in accordance with the provisions of this Act, or in any one or more of such ways.
5. It doss not enable the lambardar to (free himself from the trammels of Section 265 ialready referred to.
6. The plaintiff-appellant claimed rent for years 1332 to 1334 Fasli. The present Tenancy Act (No. 3 of 1926) was passed in September 1926, that is to say, after the commencement of the Fasli year 1334. The learned advocate for the plaintiff-appellant argues that he is at any rate entitled to collect rent for the period preceding the passing of Act 3 of 1926 inasmuch as under the law as it existed before that enactment a lambardar was entitled to sue in the circumstances like those of the present case. The plaintiff-appellant obtained decrees against the defendant-respondent for arrears of rent in respect of past years before Act 3 of 1926 was passed. These decrees are relied on as concluding all questions in respect of the plaintiff-appellant's right to sue for arrears of rent. In view however of the procedure laid down by Act 3 of 1926 in Sections 265 and 266 for the collection of rent, decisions under the previous enactment cannot operate as res judicata. The suit which has given rise to this appeal, was instituted on 31st October 1927, long after the passing of Act 3 of 1926. Any authority which the lambardar might have had before the passing of this Act became subject to the limitations imposed by Sections 265 and 266, Agra Tenancy Act, regardless of the fact whether arrears were in respect of a period subsequent to the passing of that Act or prior to it. We are concerned with the extent of his authority when he attempts to collect rent and not when he could have exercised it but failed to do so. In this view, the plaintiff-appellant was not empowered to institute the present suit for recovery of rent for the years 1332 to 1334-F.
7. The result is that the appeal fails and is dismissed with costs.