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Collector of Aligarh Vs. Sm. Ram Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1927All239
AppellantCollector of Aligarh
RespondentSm. Ram Devi and ors.
Excerpt:
- - but if it was held in that case that in circumstances like those of the present case, the lambardar, who has paid the entire revenue assessed on the mahal, is entitled to a joint decree against all the co-sharers i am, with all respect, unable to agree with the decision. 6. for the reasons given above in my judgment the decision of the lower appellate court is perfectly correct and i dismiss the appeal with costs......estate of a particular lambardar under section 159 of the tenancy act, for recovery of arrears of revenue paid to government by that lambardar on account of the revenue due from the remaining co-sharers of the mahal, all of whom were arrayed as defendants to the suit. the fact that the revenue was paid to government by the lambardar and that the revenue so paid was due on account of the share of the defendants admits of no doubt. over and above the revenue paid, the claim was also for lambardari dues at the rate of 15 per cent. on the revenue payable in respect of the share of the defendants. the suit was decreed by the trial court and it passed a decree against all the defendants for the entire amount claimed.2. on appeal by the defendants the lower appellate court has modified the.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit brought by the Collector of Aligarh as Manager of the Court of Wards which is in charge of the estate of a particular lambardar under Section 159 of the Tenancy Act, for recovery of arrears of revenue paid to Government by that lambardar on account of the revenue due from the remaining co-sharers of the mahal, all of whom were arrayed as defendants to the suit. The fact that the revenue was paid to Government by the lambardar and that the revenue so paid was due on account of the Share of the defendants admits of no doubt. Over and above the revenue paid, the claim was also for lambardari dues at the rate of 15 per cent. on the revenue payable in respect of the share of the defendants. The suit was decreed by the trial Court and it passed a decree against all the defendants for the entire amount claimed.

2. On appeal by the defendants the lower appellate Court has modified the decree of the trial Court in two respects: firstly, it has awarded the lambardari dues at the rate of Rs. 5 par cent. instead of Rs. 15 per cent. allowed by the trial Court; secondly, it has worked out the proportionate revenue payable by each of the defendants to the suit and has passed a decree specifying the liability of each of the defendants for the amount for which he was liable.

3. The decree of the lower appellate Court has been assailed before me on two grounds:

Firstly, it is argued that the interpretation put by the lower appellate Court on Section 144 of Act 3 of 1901 is not correct and that Court has erred in holding that, notwithstanding any rules to the contrary made by the Local Government in pursuance of the power vested in it by Section 234 of the Act, the lambardar is not entitled to Lambardari dues at a rate exceeding Rs. 5 per cent. of the revenue payable. It is urged that the words 'subject to rules made under Section 234' govern the latter provisions of the section including the provision, fixing the maximum of the lambardar's fee at Rs. 5 per cent. I am unable to agree with this contention. It appears to me that by Section 144 of the Act the Legislature fixed the maximum of lambardar's fee at Rs. 5 per cent, of the revenue, and all that was left to the Local Government, by rules framed under Section 234; was to fix the scale of such fees provided the scale so fixed did not exceed Rs. 5 per cent. The phrase 'subject to rules made under Section 234' has to be read with the words 'as the Local Government may prescribe,' If the argument of the learned Government Advocate were to prevail, the necessary consequence would be to hold that the Legislature, while fixing the maximum of the lambardar's fee at 5 per cent, of the revenue, and leaving it to the Local Government to prescribe different scales with respect to different mahals, provided the maximum did not exceed Rs. 5 per cent, of the revenue, also subjected the maximum fixed by itself and the scale fixed by the Local Government to any rules to the contrary made by Section 234. This I find myself unable to do. The rules under Section 234 are made by the Local Government and it is those rules, which have to govern the scale of lambardar's fees, but those rules to be valid must be consistent with the provisions of Section 144 and as such the scale fixed by those rules cannot exceed Rs. 5 per cent, of the revenue. For these reasons, I am in agreement with the view taken by the learned District Judge on this point.

4. The second point urged by the learned Government Advocate is that the learned District Judge was wrong in holding that the plaintiff was not entitled to a joint decree against all the defendants. It is said that, though the share of each co-sharer is defined in the khewat, but as the revenue has not been distributed and as the patti is joint, the lambardar having paid the revenue was entitled to a joint decree against all the co-sharers for their shares of the revenue. I cannot accept this argument. True it is that all the co-sharers of a mahal including the lambardar are jointly and severally responsible to the Government for the entire revenue assessed on the mahal bat once the revenue has been paid to or has been realized by the Government from one of the co-sharers, who may or may not be the lambardar, the joint and several responsibility comes to an end and the remedy of the co-sharer, who has paid the revenue is to realize from each co-sharer the revenue payable by him. The mere fact that the revenue of each co-sharer has not been separately specified in the khewat is no ground for holding that as between the co-sharers themselves, there is not a specification of revenue payable by each. The revenue payable by each co-sharer though entered in the khewat in a lump sum can be worked out by apportioning the same in proportion to the respective shares of the co-sharers.

5. The Government Advocate has placed reliance on a passage at page 430 of Dr. Agarwala's Tenancy Act, 9th Edition, wherein the learned author has quoted the view taken in the Selected Decisions of the Board of Revenue No. X of 1884. That book is not available in the Library of the High Court and as such I have not had the benefit of looking into that decision; but if it was held in that case that in circumstances like those of the present case, the lambardar, who has paid the entire revenue assessed on the mahal, is entitled to a joint decree against all the co-sharers I am, with all respect, unable to agree with the decision. I cannot distinguish the present case with those cases in which, though certain debtors may be jointly and severally liable to a creditor and as such the creditor has a right to a joint decree against every one of them and to enforce that decree by executing the same against one or more of them, the moment that debt is discharged by one of the debtors, the joint and several responsibility comes to an end and then the only right of a particular debtor, who paid the entire debt, is to claim contribution from the remaining debtors in proportion to their respective liabilities. In the present case, the moment the entire revenue payable to the Government was paid, the joint and several responsibility of the co-sharers came to an end and the only remedy of the lambardar was to claim from each of the co-sharers such portion of the revenue as was payable by him.

6. For the reasons given above in my judgment the decision of the lower appellate Court is perfectly correct and I dismiss the appeal with costs.


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