1. This order will cover the above ten applications for revision which have been made against the judgment and the decree of the Judge of the Small Cause Court of Aligarh. The plaintiffs in all these cases are various bodies of tenants who hold land from two cosharers and have paid rent twice' over, i.e. to each of these cosharers, for the same period. One of the cosharers is 'the lambardar and. he has not joined in the present applications. In all the suits it was admitted by both the defendants that the tenants had paid the rent twice over and that the amount was recoverable. The chief question for decision by the Court below was from which of the cosharers the amount should be recovered. The decision was that it should be recovered from the applicant, and the reasons given are as follows:
The two cosharers are not on good terms, and the applicant had been collecting the rents for some years. The lambardar appears to have acquiesced in this arrangement, but as he could not get his share of the profits from the applicant he filed a suit against' him in a Revenue Court for his share of the profits. It is also admitted that he made some collections himself and it is on this account that the tenants paid their rents twice over. In the suit for profits the trial Court gave the plaintiff, i.e. the lambardar, a decree, but did not set off from the amount decreed the sum that the lambardar had collected from the tenants. The applicant went up in appeal to the High Court and one of the grounds of appeal was that this amount had not been deducted. The appeal was allowed in toto. When the present suit was being tried in the Small Cause Court the decision of the appeal in the High Court had not been pronounced or at any rate had not been officially communicated to the Court. The Judge however on being satisfied that the present applicant would recover or had recovered this amount from the lambardar in the suit for profits came to the conclusion that the applicant and not the lamhardar must make the amount good to the tenants. There was never any doubt that the tenants, i. e. the plaintiffs in these suits, had a right to recover the amount from one of the defendants or both of them.
2. I am asked to hold in revision that this decision was not in accordance with law. In the first place it is argued that the applicant had a right to collect the rents, and that the lambardar had not, and that for this reason the tenants must recover the amount from the lambardar and not from the applicant. In support of this it is pointed out that the lambardar admitted in his written statement in the profit suit that the applicant had been collecting rents for a good many years, and also that there is no law or rule under which the lambardar had the exclusive right of collection although of course he is responsible for the revenue. The reply to this however is that although the applicant had been collecting rents for a number of years it has not been shown that he had an exclusive right to do so. There is nothing on the record to show that both the cosharers were not entitled to collect rents, and the admission made by the lambardar in the suit for profits, viz., that the amount of these collections might be deducted from his share of the profits, merely amounts to an admission that as lie had already received the amount from the tenants he had no right to recover it again from 'the applicant.
3. The second point taken is that as a matter of fact the applicant did not recover the amount from the lambardar in the. suit for profits, and that the Court below had no justification for making the inference that he would do so or that he had done so. I have heard counsel at considerable length on both sides, and it is not clear whether the amount has been recovered or not. What has been proved however is that if it has not been recovered by the applicant from the lambardar, that is the fault of the applicant. As I have already remarked, the fact that the trial Court in the-profits suit had not made allowance for these collections was made one of the grounds of appeal, and the appeal was allowed in toto. The appellate judgment of the High Court does not, it is true, show in so many words that the! amount had been deducted from the lambardar's share of profits. The matter is complicated by the fact that, while the appeal was pending before the High Court, a decision was pronounced by their Lordships of the Privy Council in which the lambardar's share in the joint property was shown to be less than had hitherto been believed, and consequently his share of the profits was reduced on that account too. If however this particular amount, than had been collected by the lambardar from the tenants, and was admitted by him to be liable to be deducted from his claim against the applicant, was by accident not taken into account in the final order of the High Court, or if it was omitted from the decree, it was open to the applicant to have the error corrected. I am only concerned here with one consideration and that is whether the Judge of the Small Cause Court acted illegally in making the inference that he did make and on the evidence before him I am by no means convinced that he acted illegally.
4. At the end of the argument a question of jurisdiction was raised on behalf of the applicant, viz. that the? plaintiff's suit was misconceived and that it should have been framed under Section 48, Agra Tenancy Act, so that,, reading that section together with Section 230 of the same Act, the Court of Small Causes had no jurisdiction to try it. This objection was not raised in the Court below and has not been mentioned in the grounds of the application for revision. But it cannot be denied that a question of jurisdiction may be raised at any stage, at any rate, of an appeal. Section 48, Agra Tenancy Act, relates to 'any sum or produce' which is exacted from a tenant
by his landholder in excess of the amount recoverable from him as an arrear of rent under this Act.
5. The section in fact relates to a. wrongful exaction, and it provides for a penal compensation not exceeding double the amount exacted. In the present case there was no wrongful exaction from the' tenant, but by istake or owing to some confusion the rightful amount of rent was collected |by two different persons. There is no question of penal compensation, and the section does not therefore appear to me to be applicable to the present suits. It has been pointed out that the Court directed the costs of the lambardar to be paid by the applicant. Apparently this was because the Court considered that it was owing to the applicant's negligence that the lambardar was taken into Court. It appears that the lambardar did all that he could in the suit for profits to adjust the matter of these collections as between him and the applicant. If the adjustment has been made, the plaintiffs have a straightforward case-against the applicant, and the lambardar need not have been taken into Court. If it has not been made, it is on account of the negligence of the applicant. I cannot therefore hold that the Court exercised its discretion un-judicially in awarding the lambardar his costs as against the applicant. The result is that the applications all fail and arc dismissed with costs.