1. This appeal arises out of a suit for arrears of rent claimed by the lambardar in respect of the years Rabi 1324 to Kharif 1327 F. The sole question for determination is whether the lambardar is entitled to recover.
2. The history of the village has been given in detail by the learned Assistant Collector who decreed the suit. The learned District Judge, in his appellate Judgment, writes that all the facts found by the learned Assistant Collector in his judgment were accepted before him. Indeed, the question is only one of inference to be drawn from admitted facts.
3. The admitted facts appear to be these. The mahal Abu Bakar Khan was divided by an imperfect partition into two pattis, viz., patti Khudaija Bibi and patti Abdullah Khan. The plaintiff-appellant was recorded as the lambardar in the divided mahal as he had already been the lambardar of the undivided mahal. In the patti Khudaija Bibi, Khuadaija Bibi herself had been making collections on behalf of herself and other co-sharers. Abdullah Khan had no share in patti Khudaija Bibi. Khudaija Bibi collected rents up to the year 1324 F. Kharif. Thereafter, she having sold a large portion of her share to the defendants, ceased to collect rent. Abdullah Khan inherited a portion of the patti Khudaija Bibi from a co-sharer. He came up on the scene and began to collect rent from tenants. So far as the present defendants are concerned they were sued by Abdullah Khan in the Settlement Court, for enhancement of rent. The rent was enhanced with effect from 1327 F. Abdullah Khan having brought the suit, it was contested on the ground that he had no right to recover. The defendants did not say that they would not pay rent to anybody and would appropriate it to themselves. But they said that they were paying rent to Khudaija Bibi and would pay rent to her alone.
4. The learned Assistant Collector found that, during the Settlement, a record-of-rights was prepared and the right to collect rent was expressly given to the lambardar in the patti of Khudaija Bibi. The other patti, it appears, belongs to Abdullah Khan in its entirety. The settlement took place in the course of the years 1324 to 1326 F. The Assistant Collector also found that the lambardar had been collecting rent from the other tenants of the patti. It has already been mentioned that the plaintiff-appellant successfully sued the defendants for enhancement of rent. Under these circumstances the question arose, whether the lambardar was entitled to recover rent or not.
5. It has been held in this Court that in the absence of a clear indication to the contrary, the lambardar is the person who would be entitled to recover the rent: vide Mojiz Fatima v. Ali Akbar (1920) 42 All. 414. That is the usual law. In this particular case, the record-of-rights clearly gives the lambardar a right to recover the rent and thereby establishes the fact that the lambardar is the appointed agent of the co-sharers within the meaning of Section 194 of the Tenancy Act.
6. The learned Judge has given the appellant a decree for his share only. This decree is entirely untenable. Either all the co-sharers must join in bringing the suit or the lambardar alone should be entitled to bring it. If the lambardar is not entitled to bring a suit for arrears of rent he certainly cannot recover only his share of it. I hold that, in the circumstances, and on the facts admitted, the appellant is entitled to recover the rent.
7. I allow the appeal, set aside the decree of the Court below, and restore that of the Court of first instance. The appellant will have his costs in this Court and in the Court below.