JUDGMENT Niamat Ullah, J.
1. This is a defendant's second appeal in a suit for declaration that the plaintiff is entitled to collect rent of certain plots specified at the foot of the plaint, situate in Patti No. 20 of village Kasma Musalmin, and that defendant No. 5, Khan Bahadur Muhammad Hadiyar Khan, is not so entitled. The plaintiffs cause of action, as stated in the plaint, was that defendants Nos. 1.4 cultivated the plots in suit and had been paying rent to the plaintiff, but in April 1927, the plaintiff's suit against them was dismissed on the plea that they had paid rent to defendant No. 5 in good faith. The trial Court dismissed the plaintiff's suit, but the lower Appellate Court has decreed it.
2. It appears that there is a number of co-sharers in Patti No. 20, that there has been a constant scramble between the plaintiff on the one side and two Indies, Musammats Sakina Begam and Alleemun Nissa, and Khan Bahadur Hadiyar Khan, defendant No. 5, on the other. The question mostly arose on suits for arrears of rent being brought by one and the other claimed to have recovered rent from the tenants. The tenants in such cases pleaded that they had paid in good faith to the person who had been realising rent from them in the preceding years. The finding of the lower Appellate Court that the plaintiff is the muhassil lagan is based on three oases. One, decided in 1920, related to the plots now in dispute. The judgment in that case has not been produced, and it cannot be said that the plaintiff definitely recognised to be entitled to collect rent in respect of the plots in suit as between himself and Khan Bahadur Hadiyar Khan. The second suit was brought in 1926 in the Civil Court and, according to the judgment of the lower Appellate Court, Khan Bahadur Hadiyar Khan's right to collect rent in respect of the plots in dispute was negatived. In 1931 the plaintiff sited for ejectment of certain tenants from two plots, none of which is in dispute in this case, on the allegation that he was entitled to eject the occupants. He was opposed by Musammat Sakina Begam sad Alleemun Nissa. The plaintiff's right to collect was affirmed. Some oral evidence was also produced in the case. As to this the lower Appellate Court has remarked that it is open to criticism but as it receives corroboration from the documentary evidence, the learned Judge accepted it for what it was worth. In conclusion, the lower Appellate Court found that the plaintiff has been proved to be the muhassil lagan (rent collector.)
3. It seems to me that the nature of the plaintiff's claim has not been correctly appreciated by the parties or by the lower Appellate Court. The right to collect rent is regulated by Section 265 of the Agra Tenancy Act (No. III of 1926), which provides:
The lambardar in an undivided mahal or in the common mahal, thok or patti of which he is the lambardar is entitled, in the absence of any contract or usage to the contrary, to collect rent and other dues.
4. It is not disputed that Patti No. 20 is a joint patti. It may be that within the joint patti one or more co-sharers is in possession of lands in severalty, in which case no other co-sharer is entitled to collect rent from tenants cultivating such land. Apart from the right to collect rent from the tenants cultivating such land, the lambardar is entitled to collect rent, unless by some contract or usage some other co-sharer is entitled to do so. Defendant No. 5 is the present lambardar, but. he appears to have acquired proprietary rights in this patti only a few years ago and his right to collect rent may not be so clear as it would otherwise have been. At the same time, the plaintiff can prove his own right to collect rent as against the lambardar only by proving a contract or usage over-riding the right of the lambardar to collect rent. In the plaint all that the plaintiff has alleged is that for a long time past he has been the sole rent collector in Patti No. 20. Defendant No. 5 denied this fact in his written statement, and set up his own right as a lambardar. The issue framed by the trial Court was in terms of the plaintiff's allegation and made no reference to any contract or usage. The lower Appellate Court likewise dealt with the case as if the right to collect rent could be conclusively established by evidence afforded by a few instances in which suits for arrears of rent brought by the plaintiff in the Revenue Courts were successful. Whenever the question of right to collect rent arises in suits for arrears of rent, the issue is generally one contemplated by Section 270. It does cot necessarily refer to any contract or custom. The Court, is in such a suit, concerned with the tenant's plea that he paid the rent to a third person to whom he had paid in good faith before the institution of the suit. It is certainly possible to infer a custom or contract from a large number of instances in which the right of a co-sharer was repeatedly recognised in proceedings under Section 270, Agra Tenancy Act, but this class of evidence is rebuttable. Oral evidence of co-sharers in proof or disproof of a custom or contract alleged by the plaintiff will be of value. The precise nature of the question involved in this case was not put in the forefront in the trial Court or in the lower Appellate Court, and I am not satisfied that the vague and indefinite findings arrived at by the lower Appellate Court meet all the requirements of the case. In this state of the record I consider it necessary to remit the following issues to the lower Appellate Court for a finding to be returned within three months:
(1) Whether the plots in dispute have been in separate possession of the plaintiff as his holding in severalty? and (2) If the first issue is found in the negative, then is the plaintiff entitled to collect rent of Patti No. 20 or of the plots in dispute under any contract or usage?
5. Parties shall be at liberty to produce such evidence as they may be advised to adduce. On receipt of the findings ten days shall be allowed for objections.