1. This is a defendant's appeal arising out of a suit for arrears of rent brought by Kallu Ram against Mt. Kesar Kuar. The suit was dismissed by the Assistant Collector, but on appeal it was decreed by the District Judge. His findings on some of the points were not clear. Accordingly a former Bench of this Court framed three issues and remanded the case with direction that the learned Judge should dispose of the case on the lines indicated by the issues. The learned District Judge has upheld his former decree.
2. The plots in dispute were recorded as the tenancy of one Sri Ram, and on his death were recorded in the name of his widow Mt. Kesar Kuar. Kallu Ram was recorded as the lambardar and the proprietor of the mahal in which these plots are situated. In 1917 there was a dispute between the parties in the civil Court and the matter was referred to the arbitration of three arbitrators and an award was pronounced on 31st May 1918, followed by a decree of the civil Court. Under this decree Mt. Kesar Kuar was given a half-share in the proprietary interest in the mahal.
3. The learned District Judge has found, and his finding is one of fact, that the defendant has failed to prove that she had any proprietary interest in the mahal prior to the award of 1918. She must, therefore, be treated as a tenant of the plots prior to that date. Since then, however, she has become a cosharer entitled to an equal share with Kallu Ram in the proprietary interest in the mahal.
4. The learned District Judge, in referring to the judgment of this Court delivered on the former occasion has remarked that there was a mistake inasmuch as it was stated that the award was delivered in 1325 Fasli. The learned District Judge, has without checking the record, made this remark for we find that the 31st May 1918, the date of the award, fell in 1325 Fasli, and therefore the High Court's statement was quite correct and has been wrongly objected to. The learned District Judge has given the plaintiff a decree for half the amount of rent due on account of these plots, holding that the tenancy to the extent of one-half has become merged in the proprietary interest acquired by Mt. Kesar Kuar since the award.
5. The point which has been urged before us on behalf of the appellant is that having become a proprietor in the mahal she has ceased to be a tenant and the only remedy now open to the plaintiff is a suit for profit in which the rent could be taken into account and adjusted. It is further urged that a person cannot both be a zamindar and a tenant in one and the same mahal. But there cannot be a complete merger of two rights unless the two are co-extensive. We are of opinion that this point is concluded by a series of authorities, which it is not now possible to disturb. We may refer to the case of Mahabir Singh v. Ashanullah  A.W.N. 53 followed subsequently in S.A. No. 303 of 1918, decided on 28th February 1918, and Abul Hasan Khan v. Bhura  A.W.N. 226. We may also mention that the Board of Revenue has accepted the same principle as shown by the case of Jamna Prasad Rai v. Damri [Vol. I, Unpublished Decisions of the Board of Revenue (1925 p. 77)]. All these cases are authorities for the proposition that there is nothing in law to prevent a cosharer in a coparcenary mahal from having tenant rights of any kind and being liable to the payment of rent either to another cosharer or to the general body of cosharers, and that if a tenant subsequently acquires proprietary rights in the land his tenancy does not automatically come to an end in its entirety.
6. In view of these authorities we are of opinion that this appeal must be dismissed. The result, therefore, is that this appeal is dismissed with costs including in this Court, fees on the higher scale.