1. This second appeal arises out of a suit for arrears of rent brought by the plaintiffs-appellants against the defendants in respect of the years 1328, 1329 and part of 1330 F. The following facts were established. The plaintiffs are four of the co-sharers of the mahal in which the holding in suit is situated. There are several other such co-sharers, and they include three persons who are lambardars, namely, Ajaib Singh, etc. For the three years preceding the years in suit the present plaintiffs brought a suit against the present defendants, and obtained a decree for arrears of rent. There is no evidence on the file to show that the plaintiffs alone out of the body of the co-sharers were entitled to collect the whole rent of the holding, nor is there any evidence to show that there is any custom or agreement whereby the lambardars collected rents or whereby by different co-sharers collected the whole rent in respect of separate holdings. The defence in this suit was that the lambardars Ajaib Singh, etc., have
all along been collecting in respect of the patti in which the fields in question are situated and that the rent for the years in suit was paid to them by the defendants in good faith.
2. The first Court came to a finding that in spite of there being no evidence to show that the plaintiffs alone were entitled to collect the rent of this holding, apart from the previous suit in respect of the years 1325, 1326 and 1327 F., still the effect of this suit was to furnish conclusive proof that the plaintiffs were entitled to collect the whole rent of this holding. It held that the payment of rent to the lambardars by the defendants was not proved, and that even if it were proved, such payment could not in the circumstances be deemed to be payment in good faith.
3. In appeal the District Judge held that the payment of rent to the lambardars during the years in suit must be held proved by the admission of these lambardars that they had received the rent, because such admission was against their interest. He further held that the lambardars were prima facie entitled to collect the rent of the holding, and that the previous decree in respect of the arrears for the three years preceding the years in suit would not rebut the prima facie inference that the lambardars were entitled to receive the rent.
4. It is clear that when the previous suit was brought by the present plaintiffs for rent against the defendants in respect of the years 1325 to 1327 F, the suit could have been successfully resisted by the defendants on the ground that the plaintiffs, who were only three out of a large number of co-sharers could not sue for the rent without joining the other cosharers in the absence of a custom or agreement entitling these plaintiffs to collect the whole rent of the holding. So far from such a plea being raised by the defendants in that suit the suit was allowed to be decreed ex parte. This decision operates as res judicata in respect of the question whether for the years 1325 to 1327 F. the plaintiffs were entitled alone to sue for the rent.
5. It is urged by the respondents' counsel, however, that this present suit deals with a different series of years to that with which the first suit dealt, and that for this reason the first suit cannot operate as res judicata in respect of the present claim. The first suit, is, however, decisive as to the right of the plaintiffs to claim the rent alone up to the period of time immediately preceding the present suit. If the plaintiffs had a right to the rent at that time, it was for the defendants to prove how they lost their right. No attempt was made to do this. From the fact, therefore, established by operation of res judicata in the previous suit the right of the plaintiffs to collect the rent for the years in suit may be inferred. The presumption that a state of things which has been shown to be in existence will continue to be in existence [see Section 114(d) of the Evidence Act] is sufficient to rebut the presumption (if any) arising that a lambardar is entitled to collect rent. I Say, 'if any' because the present rules of the Board of Revenue make it somewhat doubtful whether such presumption in favour of lambardars' right to collect rent is maintained unless there is evidence led of a Custom or agreement authorizing the lambardars to collect rents.
6. Section 198 of the Tenancy Act is as follows:
(1) When, in any suit against a tenant under this Act, the defendant pleads that the relation of landholder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person.
The question of such payment of the rent to such third person shall be inquired into, and, if the question is decided in favour of the defendant, the suit shall be dismissed.
(2) The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the civil Court.
7. At first sight it is difficult to understand how a tenant, who maintained that he had paid the rent of his holding to some person other than his de jure landholder, could at the same time maintain that by reason of this payment the relation of landlord and tenant did not exist between himself and his de jure landholder. But the section is designed to smooth the path of a tenant who, although he has paid rent to some one he believed to be his landholder, is confronted with the contention that the plaintiff was his de jure landholder. In such a case it is permitted to the tenant to set up as his landholder, that is to say, as the person to whom he was liable to pay rent, the person to whom he in good faith believed rent to be due as distinct from the person strictly entitled to it in law. In other words, the section allows the tenant to plead discharge of a legal obligation by his showing the discharge of a moral obligation. The Section could be involved by the defendants in the present case only if they maintained that in good faith they believed that the lambardars were entitled to collect rent. In order to justify any such belief they cannot, however, invoke a misapprehension as to the law. At the beginning of the period in suit they were bound to regard the plaintiffs as their landlords by reason of the decree in the previous suit. They were not, as shown above, entitled to invoke any presumption that the lambardars are entitled to collect rents in view of the decision in the previous case. The lower appellate Court erred in thinking that an ex-parte decree could not operate as res judicata: otherwise its decision would have been correct.
8. For the above reasons, I allow this appeal with costs in the lower appellate Court and in this Court including fees on the higher scale in this Court, and restore the decree of the trial Court.