JUDGMENT Chamier, J.
1. This appeal arises out of a suit brought by the appellant for his share of the profits of two properties which may be called khata No. 1 and khata No. 2 in mouzah Chiti. The suit relates to the years 1314, 1315 and 1316 Faslis. The appellant was a recorded co-sharer during the years in question. Respondent was lambardar of khata No. 1 during the same period. The claim for profits in khata No. 2 is not before as in appeal and may be disregarded.
2. In khata No. 1 there were five co-sharers, each owning a one-fifth share. Bach of them was in possession of separate lands on account of his share. In other words, the whole property was held by them as sir or khud kasht. The actual cultivators of the land were treated as the tenants of one or other of the co-sharers. The whole of the share of one of the co-sharers named Charan Singh excepting ten bighas was sold at execution sales to the appellant in or before 1901. The remaining ten bighas were sold to the respondent. The result was that Charan Singh became ex proprietary tenant of the whole of the lands constituting his share. At the instance of the appellant the Revenue Authorities fixed the rent to be paid by Charan Singh. In August 1904 the appellant sued Charan Singh for the rent of his holding for the years 1309, 1310 and 1311 Faslis and obtained a decree. In July 1905 the appellant had Charan Singh formally rejected from the holding on account of nonpayment of the amount decreed. Bat, as so often happens in such cases, Charan Singh did not give up the land and in January 19C6 the appellant brought a suit against him in the Civil Court for possession and for mesne profits. Charan Singh pleaded that he was tenant of the land and was referred to the Revenue Court which held that he was no longer tenant of the land. The Munsif then gave the appellant a decree for possession and for mesne profits and his decree was affirmed on appeal in June 1907. Shortly after that, the respondent commenced proceedings for partition of the lands comprised in the khata. In the course of those proceedings, in January 1910, the appellant presented a petition to the Court in which he urged that what had been Charan Singh's land was hip, the appellant's, separate maqhuza and should be allotted to him. The present suit was instituted in June 1900. The appellant claims his share of the profits of the land in the khata for the years 1314, 1315 and 1316 Fashis. He admits, or rather his learned Pleader in this Court, admits, that the respondent did not in fact collect the rents of what has been described as the appellant's maqhuza, i.e., the land which was Charan Singh's holding less the 10 bighas above mentioned, but he says that it was the duty of the respondent as lambardar to collect those rents and the respondent is liable for them under Section 164(2) of the Tenancy Act. The respondent has pleaded and it has been found that each of the original co-sharers was in possession of separate lands on account of his share. He urges that Charan Singh became the tenant of the appellant in respect of all the lands constituting that share; that the appellant alone has been in possession of those lands through Charan Singh, and that he (the respondent) has never been in possession or collected the rents thereof. The question whether a co-sharer in a zemindari becomes on the transfer of his share the tenant of the transferee alone or of the whole proprietary body has been discussed before us at length, of Chote Lal v. Ramadhin 13 O.C. 70 : 5 Ind. Cas. 945 Evans J. and I held that the co-sharer becomes the tenant of the transferee alone. In Bhagwandin v. Vehi Prasad 12 Ind. Cas. 630 decided on October 31st, 1911 Griffin, J., held that the co-sharer becomes the tenant of the whole proprietary body, and the Rame view is involved in the decision of Stanley, C.J, and Banerji, J., in Second Appeal No. 538 of 1807 decided on March 19th, 1909. The difficulties pointed out in our judgment in the case of Chote Lal v Eamadhin 13 O.C. 70 : 5 Ind. Cas. 945 are not noticed in either of the decisions in this Court and I cannot say that I am convinced that the view taken in them is correct. At all events, I see no reason why the transferor should not pay his rent to the purchaser alone where, as in the present case, there has been a kind of private partition which no one wishes to disturb. But even if it, is assumed that the correct view is that, taken in the two unreported cases in this Court, I think that this appeal should be dismissed. In the present case, as in the Oudh case, all parties concerned seem to have assumed that the co-sharer became the tenant of the transferee alone. Whether that view was correct or not does not appear to me to be a matter of any importance in the present case. We are asked in effect to hold that the respondent negligently and improperly failed to collect the rents in what was Charan Singh's holding. Before we can do this we must look at the facts. It was the appellant who applied to the Revenue Authorities to fix the rent to be paid by Charan Singh. It was the appellant alone who sued Charan Singh for his rent for the years 1309-1311 Faslis. It was the appellant alone who had him ejected in execution and it was the appellant, alone who brought another suit against him for possession in the Civil Court. The other co-sharers took no interest in those proceedings and allowed the appellant to establish a claim to separate possession of the bulk of Charan Singh's holding. As late as January 1910 we find the appellant laying claim to the holding as his peculiar property. In these circumstances, I do not see how it is possible to hold that the respondent has negligently and improperly allowed the rent of the land to remain uncollected. If the decisions in this Court mentioned above are correct then, as a matter of strict law, the respondent might perhaps have been able to obtain decrees against Charan Singh. He is related to Charan Singh and, therefore, probably was not anxious to bring suits against him, but he would certainly have been opposed by the present appellant had he attempted to compel Charan Singh to pay rent to him. It is quite obvious that the appellant fir years treated Charan Singh as his own separate tenant and tried by every means in his power to recover rent from him. When he failed, he tried to get possession of the land from Charan Singh and when the partition proceedings began he claimed the land as his separate property. It was only when all his endeavours to obtain the profits of the land had failed that he turned round and attempted by the present, suit to get the profits from the respondent on the ground that the latter had improperly and negligently allowed the rent to remain uncollected. It was urged by the respondent that the appellant is not estopped from asserting his strict rights by any action that he has taken against (he respondent. I am prepared to concede that bat, in face of the various proceedings taken by the appellant, is it possible to bold that the respondent should have collected the rent? It seems to me that he cannot have supposed that he was under any obligation to collect the rents. The sale of Charan Singh's share did not necessarily put an end to the private arrangement which bad subsisted for years between the co-sharers whereby each collected his own rents and there was no settlement of accounts between them. If the purchaser of Charan Singh's share and the old co-sharers also were willing that it should continue (and all that has happened since the sale of the share seems to show that they were willing) I see no reason why the lambardar should be bound to put an end to it. Something was said about such an arrangement not being sanctioned by law but such an arrangement is exceedingly common and is certainly not illegal. It is designed to prevent, friction between the co-sharers. On the facts it seems to me impossible to hold that the lambardar has been guilty of negligence in failing to collect the rents of what was Charan Singh's holding. I would dismiss this appeal with costs.
Karamat Husain, J.
3. The facts of the case are set out in the judgment of ray learned brother and need not be repeated. 'I he decision of the appeal, in my opinion, turns upon determining whether a co-sharer in an undivided mahal on the transfer of his share becomes in respect of his sir an ox-proprietary tenant of the transferee or of all the co-sharers in the mahal.
4. I have no doubt that under the law as it exists be becomes the tenant of all the co-sharers in the mahal. When a co-sharer in an undivided mahal has some sir in it he is in-exclusive occupation of the entire sir and is a co-sharer of the proprietary interest in the land, his share therein proportionate to his share in the mahal. The ownership of the rest belongs to other co-sharers. If such a co-sharer transfers his proprietary interests in the mahal the ownership of his share passes to the transferee and the transferor by virtue of Section 10 of the Agra Tenancy Act becomes an ex-proprietary tenant with a right of occupancy in his sir. This right is conferred upon him in the sir land and there is nothing in Section 10 to show that any change is made in those who are the proprietors of the sir land. The logical inference, therefore, is that the transferor becomes the tenant of all the proprietors of the sir land. It is not equitable to hold that he becomes the tenant of one of them, i. e, the transferee, to the exclusion of the rest.
5. Why should they be deprived of their proprietary interest in the sir land? The view I take was in Bhagwindin v. Debi Prasad 12 Ind. Cas. 630 d decided on the 31st of October 1911 and the decision in Second Appeal No. 538 of 1907 decided on the 19th of March 1909 rests on the same view. In Chote Lal v. Ramadhin 13 O.C. 70 : 5 Ind. Cas. 945 it, was ruled that a co-sharer on the transfer of his share becomes the tenant of the transferee alone. With due respect to the learned Judges who decided that case, I am unable to agree with them. There are no words in Section 10 of the Agra Tenancy Act to that effect and on principle there is nothing to cut off the relation of landlord and tenant between the other co-sharers and the transferor.
6. It is urged that the view I take reduces the value of the shares of the co-sharers other than the transferor while the view taken in the Oudh case reduces the value of his share only. It is, therefore, more equitable of the two. There is not much force in this. According to the view taken in the Oudh case the transferor is entitled to hold his sir at a reduced rate of rent against the transferee but the other co-sharers lose their proprietary interest in the Hr land. According to the view I take he holds his sir against all the co-sharers but they retain their proprietary interest in it and I have no doubt that if a, co-sharer be given a choice between receiving a reduced rent and giving up his proprietary interest be will elect the former. Moreover, (he right to hold the sir at a reduced rate of rent is not peculiar to the transferor in question; any co-sharer who transfers his share will have the same right. Then again the law gives a tenant under certain conditions the right of occupancy in an undivided mahal against all the co-sharers therein and this to some extent reduces the value of their shares but they cannot plead equity against it. In the same way, if the aw gives a co-sharer on the transfer of his 'hare the right of holding his sir at a reduced rate of rent they cannot complain of any hardship. If there is any hardship it is for the Legislature to remove it, but a Court of Justice has no power to read into Section 10 of the Agra Tenancy Act words which are not there in order to put an end to the hardship. The transferee has no proprietary interest in certain portions of the sir land and it is difficult to hold that he becomes the landlord of the transferor in respect of the land in which he has no interest. For the above reasons I hold that Charan Singh on the transfer of his share in khata No. 1 became the tenant of all the co-sharers in that khata and as the respondent was the lambardar of that khata during the years in suit the duty of recovering rent from Charan Singh, in the absence of anything to the contrary, devolved upon the respondent. The fact that each of the five co-sharers in khata No. 1 separately held 1/5th of the khata as his sir prior to the transfer of Charan Singh's share is not sufficient to destroy the undivided character of the khata. The law of partition prescribes certain procedure which must be followed in order to bring about partition. It empowers certain Revenue officers to make it and no one else can do it. An application for partition is a condition precedent to all that may follow. (Sections 106, 107 of the Land Revenue Act). The Collector at any stage of a partition before confirmation may stay the partition and order the proceedings to be quashed (section 109). He may also allow the parties to make the partition themselves (section 103). All this conclusively shows that the co-sharers in a mahal have no power whatsoever to put an end to the undivided character of a mahal by a private arrangement. The separate occupation of 1/5th by Charan Singh with the consent of the other four co-sharers caused no partition for the purposes of the Rent and Revenue Laws, He simply was in the exclusive occupation of certain plots in an undivided mahal which belonged to all the co-sharers and as soon as? he became the tenant he became the tenant of them all. The objection of the appellant on the 18th of January 1910 in the partition proceedings started by the respondent conclusively establishing that op to that date khata No. 1 was an undivided mahal. The decision in Jagannath Prasad v. Badri Prasad 9 A.L.J. 43 : 11 Ind. Cas. 768 in my opinion, does not touch the point. It does not go the length of ruling that a private agreement of the co-sharers in an undivided mahal can effect partition. It is urged that granting that Oharan Singh on the transfer of his share became the tenant of all the co-sharers in khata No. 1 the steps taken by the appellant against Oharan Singh disentitled him from claiming his share of profits of Charan Singh's sir from the respondent. Those steps are that he successfully applied for the fixing of the rent to be paid by Charan Singh; that he obtained a decree for the arrears of rent and ejected Charan Singh from his sir and that as Charan Singh did not give up possession of the sir the appellant sued him in the Civil Court for possession and mesne profits and obtained formal possession, Charan Singh continuing in the actual occupation of the sir, and that when the respondent applied for partition the appellant in the application dated the 18th of January 1910 asserted that he was in the exclusive possession of Oharn [Singh's sir. In my opinion the above mentioned steps do not debar the appellant from claiming his share of profits of the sir from the respondent. The appellant under Section 36(4) (Act No III of 1901) as a co-sharer directly interested in such matter" had a right to apply for the fixing of the rent payable by Charan Singh. The Revenue Court simply fixed the rent and made no change in the proprietors entitled to receive it from Charan Singh. The decrees for arrears of rent and the ejectment were procured by the appellant against Charan Singh behind the back of the respondent and those steps in no way effected any change in the legal relation of landlord and tenant which came into existence between all the co-sharers in khata No. 1 and Charan Singh. The mere fact that the appellant mistook his legal position towards Charan Singh cannot estop him from claiming his share of profits in the sir from the respondent who was bound to recover rent from Charan Singh but who, according to the finding of the lower Appellate Court, being a near relation of Charan Singh took no action against him. It is plain law that if A. succeeds in ejecting B. a tenant of C. in a suit to which C. is no party, B. in a suit by C. for rent cannot plead ejectment by A. It is to be noted that the respondent did not plead any local custom or special contract by which the appellant was entitled to receive separately his share of the rent payable by Charan Singh as an ex-proprietary tenant of his sir.
7. The civil suit for possession by the appellant against Charan Singh and formal possession against him cannot put an end to the legal duty cast upon the respondent as a lambardar of realising rent from Charan Singh. The respondent was no party to the civil suit and his right to recover rent from Charan Singh cannot be affected by its results.
8. Charan Singh, as a matter of fact, in spite of all the steps taken by the appellant was admittedly in actual occupation of his sir during the years in suit and the assertion made by the appellant in his application dated the 18th of January 1910 may be taken to mean anything else, but it cannot be taken to mean that the appellant was in actual occupation of Charan Singh's sir. That assertion of the appellant, therefore, does not alter the legal relation which sprang up by operation of law between Charan Singh and the respondent as a lambardar. The proceedings taken by the appellant against Charan Singh in the Revenue and Civil Courts to which the respondent was no party do not, in my opinion, affect the position of the respondent as a lambardar of khata No. 1.
9. For the above reasons, I would allow the appeal in respect of khata No. 1 and would send down the case to the lower Appellate Court in order to find the amount of the share of the appellant in the profits for the years in suit on the basis that the respondent had to realise the rent of the sir from Charan Singh. Considering the facts of the case, I make no order as to costs.
10. Order of the Court is that the appeal be dismissed with costs which in this Court will include fees on the higher scale.