1. This appeal raises a point of law under the Bundhelkhand Eand Alienation Act. A decree had been passed against Jwala Prasad, one of the plaintiffs, on a mortgage in favour of the defendants, Prag Narain and Beni Prasad. The decree is not-before us but it appears tha it was transferred tothe Collector under Section 17 of the Act, inasmuch as the mortgagees were not members of an agriculture tribe The first plaintiff, Jawala Prasad, was owner of an undivided share in a 5 annas 4 pie; patti. The rents, of the entiiepatii were collected by the Lambardar who, as it hajppenec: was at that tittie Jwala Prasad himse lf, The share mortgaged was a 10 pie undivided share out of this patti. The Collector, purporting to act under the provisions of Section 6 of the Act. Elected certain specific plots which he considerd to be the equiva-lant of a 10 pie share and gave the defendants a usufructary mortgage of these plots 'for a term of 20 years. The present suit was brought by Jwala Prasad and the two other co-sharers in the patti, Sukhnandan and Sheo Dayal, for a declaration that the mortgage executed by the Collector so far as it purported) transfer possession of specific plots and to give the mortgagees the right either to cultivate these plots or to collect the rents of them was ultra vires. The suit has been decreed by the Court below. The defendants appealed to this Court on two grounds :
(1) That the mortgage was within the powers vested in the Collector bv the Act.
(2) That the Civil Court is precluded by Section 22 of the Act from entertaining the present suit.
2. Two of the plots in Suit Nos. 19 and 195 were in the actual possession of Jawala Erased as khudkashi. The first Court dismissed the suit as regards these plots. We are unable to appreciate the reasons which led the learned District Judge on a cross-objection by the plaintiffs to set aside this portion of the Trial Court's decree. It seems to us that it was perfectly open of the Collector to transfer to the mortgagees the possession of lands which were in the actual possession of the mortgagor.
2. Section 22 of the Act lays down that no Civil Court shall take cognizance of the manner in which the Local Government or any Revenue Officer exercises any powers vested in it or in him by or under this Act. The appellant treats this as meaning that the Civil Courts have no jurisdiction to question anything done by the Collector which purports to be done under the Act. The lower Courts have met the objection by holding, first, that what was done in this case was in excess of the powers conferred by the Act, and, secondly, that it is clearly .The to third parties whose interests are affected, the challenge the validity of a mortgage which interferes with their rights. In this case the second and third defendants were no parties to the proceedings before the Collector in the course of which the mortgage was executed.
3. Section 6 of the Act provides various ways in which the Collector can exercise the powers given to him by the Act. It is entirely within his discretion which of those ways he shall adopt, and no Civil Court can question the exerciseof his discretion in this matter. It is clear, however, from the language both of Sub-section (1) and of Sub-section (2) of Section 22 that the effect of that secton is not to cover any act which is done in excess of powers conferred by the Act. If, therefore, the Collector in granting the lease was acting illegally and in excess of his powers, Section 22 will not have, the effect of ousting the Civil Court's jurisdiction.
3. The position taken up by the parties in the first issue is this. The plaintiffs rely on the fact that the defendant was not in actual possession of any particular plots in the pztti and that his only right was to receive his share of the profits. The Collector has, therefore, given to the mortgagees a right which the mortgagor himself did not possesss. It is true that Jwala Prasad was himself the lambardar but as lambardar he was merely acting as agent of co-sharers and not on his own behalf, and he was liable to be oasted from the position of lambardar at any time. On the other hand, the respondents contend that the only right of the second and ihird plaintiffs was to receive their 23rds share of the profits of the patti. This right has in no way been impaired by anythingthat the Collector has done. The mortgagees are entitled to profits equivalant totter profits of a 10 pie share and it makes no difference to the other plaintiffs whether the mortgageesare realising these profits direct from the cultivators or whether they are paid over to them by the lambardar.
4. In our opinion the plaintiff's contention is correct. What the Collector has done is to make a partition of the patti behind the backs of other co-sharers for the benefit of the mortgagees. There is nothing in the Act which authorises him to do this. The Collector could only mortgage the right which the judgment debtor has andexcept as regards the plots in tispos session as khudkasht, that right was aright to receive his share on a distributior of the profits of the patti. The fact that he happened to be a lambardar at the time is irie-levant. The lambardar is the agent of the co-sharers for purposes of collection, lit the fact of his being lambardar in no way increases or alters his personal rights as proprietor. The argument that the other, co-sharers are in no way prejudiced is fallacious. It is true that their income at the time of the execution of the mortgage might not have been decreased. The mortgage, however, is to last for 20 years. During that time they are deprived of all control over these particular tenants, of the right of ejecting them or enhancing their rents, and should th'-re at any time be a partition, the co-sharers to whom these lands are assigned would be unable to obtain possession from them.
5. For these reasons we allow the appeal in part and setting aside the decree of the learned District Judge, restore the decree ef the Trial Court. As the appeal h as partly succeeded and partly failed the parties will bear their own costs.