1. This appeal arises out of a suit brought by the plaintiffs who are co-sharers against the defendant (who is the lambardar) for profits. In the events which have happened the only point which we are called upon to decide is 'whether the lower Appellate Court was correct in directing that in estimating what was due to the plaintiffs the sir and khudkasht held by the other co-sharers should be taken into account. The lower Appellate Court held that it should. The defendant contends that it should not. If the sir and khudkasht should be left out of consideration the defendant's appeal should be allowed. If, on the other hand, it should be taken into consideration the appeal should be dismissed.
2. The appellant's contention is that having regard to the ruling in Bishambhar Nath Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 the Court below was wrong in directing that the sir and khudhasht should be taken into account. In that case it was held that a lambardar could not bring a suit to recover profits due to him and other co-sharers from some of the co-sharers who held sir and khudkasht in excess of their proper shares. The argument is that inasmuch as the lambardar could not sue for the profits of sir and khudkasht he cannot be made liable, and it is sought to extend this doctrine still further by getting the Court to hold that in a suit under Section 164 sir and khudkasht must be totally disregarded. To illustrate the question under consideration we will suppose a case. A the lamhardar has in his hand Rs. 1,000 representing rents which he has collected. He is sued by B, who holds a two-anna share in the mahal, for Rs. 125, out of the Rs. 1,000. The lambardar admits that he has the Rs. 1,000, and admits that the plaintiff has a two-anna share in the mahal, but says that the plaintiff holds sir and khudkasht in excess of the other co-sharers and that he objects to pay the plaintiff his proportionate share in the Rs. 1,000, without taking into consideration the sir and khudkasht which he holds. According to the contention of the appellant on the authority of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A.L.J. 1245 : 34 A. 98 the lambardar would have no answer and would be obliged to pay the plaintiff the whole Rs. 125, It is not quite clear that such an inequitable result really follows from the decision of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98. The case was considered in the case of Gulzari Mal v. Jai Ram 24 Ind, Cas. 178 : 36 A. 441 : 12 A.L.J. 606. The argument in Bishambar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 and the ground upon which the judgment proceeded was that the lambardar was not the agent for the co-sharers so as to enable him without joining the other co-sharers to bring a suit against a co-sharer in respect of the profits of sir and khudkasht. The Court held that he was not the agent for the co-sharers. It seems to us that if the, case of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 8 A L.J. 1245 : 34 A. 98 was rightly decided, it follows that the lambardar could not even sue a tenant for rent without joining all other co-sharers. There is no special section in the Tenancy Act which provides for a suit by a lambardar as such against a tenant, and yet we know that it is the regular practice in lambardari villages that the lambardars sue the tenants for rent, and that it is frequently made a ground for making them liable upon the gross rental that they have neglected to bring such suits. If the lambardar is the agent of the co-sharers to bring a suit for rent, he seems to be equally their agent for the purpose of bringing a suit against co-sharers who hold sir and kudkasht in excess and who have refused to allow the sir and khudkasht which they hold to be taken into account. In the case of Gulzari Mal v. Jai Ram 24 Ind Cas. 178 : 36 A. 441 : 12 A.L.J. 606 the learned Judges refer to the definition of 'lambardar' in the Land Revenue Act. 'Lambardar' in the Tenancy Act is declared to have the same meaning as in the Land Revenue Act. In the Land Revenue Act the expression is defined to mean 'a co-sharer of a mahal appointed under this Act to represent all or any of the co-sharers in that mahal.' In the lambardari villages in these provinces the duties of the lambardar are fairly well understood and recognised. Beyond all doubt he has the power of collecting rents. The following extract from a judgement of the Board of Revenue in our judgment fairly describes the position of the lambardar in a lambardari village: 'Speaking generally the lambardar is the manager of the common lands entitled to collect the rents, settle tenants, eject tenants, procure enhancement of rents, and do all necessary acts relating to the management of the estates for the common benefit.' It is contended that the only remedy which the plaintiffs had in a suit like the present was a suit under Section 165 against all the co-sharers for a settlement of accounts, and it is further contended that sir and khudkasht rights can never be satisfactorily taken into account except in such a suit where all the co-sharers are parties. It is to be noticed that Section 165 does not specifically refer to a suit by the lambardar as such. No doubt the lambardar is a co-sharer and would be entitled like any other co-sharer to bring a suit for settlement of accounts. Section 165 does not provide that all the co-sharers must necessarily be parties to the suit, although, no doubt, in very many cases it would be convenient that they were. The objection that may be made as to want of parties is met by this answer that it is open to any party to a litigation in a proper case to ask the Court to add parties. The Court also can do this of its own motion. It has a jurisdiction which the Court ought not to hesitate to exercise in a fit and proper case.
3. We think that the decision of the Court below was correct and should be affirmed. We accordingly dismiss the appeal with costs.