1. This is a revision under Section 25 of the Small Cause Courts Act and arisen under the following circumstances : Them is a joint Khata of three tenants, Lekhraj, Jawahir and Puran who are occupancy tenants paying a sum of Rs. 238 as the rent of the holding to the Zamindar. By mutual consent these three tenants have divided the land for purposes of cultivation. Jawahir let out out of the land which fell to his share, 7 bighas odd to Lachhman Sarup. Lachhman Sarup in his turn, sublet A. bighas 5 biawas of land constituting the plot No. 438 to the applicants before us. The Khata being joint and the rent payable for the whole Khata being in arrears, the Zatnindar distrained the crops of plot No. 438 and realized a sum of Rs. 180. Thereupon the applicants before us brought the suit out of which this revision has arisen in the court of Small Causes at Bulandshahr, seeking to recover the amount realized from their crop. The defendants to the suit were the three principal tenants, Lekhraj, Jawahir and Puran as also Lachhman the immediate landlord of the applicants. No relief, however has been claimed against Lachhman.
2. The learned Judge of the Small Cause court held that the suit fell within the purview of Section 180 of the Agra Tenancy Act of 1926 and thereupon directed that the plaint be returned to the plaintiff for presentation to the proper court. Before us it is contended on behalf of the plaintiffs that this order is wrong and the suit was cognizable by the learned judge of Small Causes.
3. It is conceded that if the suit were against Jawahir alone it would be cognizable by the Revenue Court and the Revenue Court alone. The contention, however, on behalf of the applicants is that Lekhraj and Puran also having been joined in this suit as defendants, the case did not come within the purview of Section 180 of the Agra Tenancy Act. We cannot accept this contention. Section 180 gives two remedies to the person from whom arrears of rent are realized by means of distraint of his crops. Under Sub-section (1) the cultivator is allowed to deduct what he has paid out of the rent payable by him to his immediate landlord. The other remedy that he is given is to sue the defaulter for recovery of the rent that he has paid. It is the second remedy contained in Sub-section (2) of Section 180 that has been sought for. There can be no doubt that Lekhraj, Jawahir and Puran are all defaulters. The Khata is joint, the Zamindar does not recognize the private partition among them. It is however, urged that if the plaintiffs had proceeded in the manner mentioned in Sub-section (1), they could have recovered the amount from Lachhman and Lachhman could have recovered the amount paid by him to the applicants from Jawahir alone. This may or may not be so, but the fact remains that the case falls within the clear language of Sub-section (2) of Section 180. All the first three defendants are defaulters.
4. If we look for the principle on which Sub-section (2) is based we shall find that, in this particular case, Jawahir let oaf; the land to Lachhman with the implied consent of Lekhraj and Puran. The mutual partition among the tenants implied that Jawahir would be allowed to let out what was really the common property of himself and Lekhraj and Puran. The zamindar was entitled to realize his rent out of the produce of any portion of the holding and the man who actually pays the rent either by cash payment or by allowing his produce to be sold is entitled to recover the amount from the defaulter. It does not matter if Jawahir alone was the person who let out the land to the landlord of the applicants.
5. In our opinion the application must fail and it is hereby dismissed with costs.