JUDGMENT Kanhaya Lal, J.
1. Basant Rai is the sola respondent in this appeal. The question for consideration in this appeal is whether a lambardar can sue the other co-sharers of the village, who hold sir or khudkasht land, for a refund of such profits as they may have realized in excess of their share.
2. The suit was filed by the lambardar in this instance against two co-sharers Kundan Lal and Misri Lal, who have been found to have held khudkasht land in excess of their share. The Court of first instance confined its decree to the share of the lambardar in such excess. The lower Appellate Court allowed the decree for the entire excess. One of the defendants-appellants died during the pendency of this appeal and his heirs did not apply for substitution within the time allowed by law, his appeal, therefore, has abated. The other appellant wants to contest the right of the lambardar to realise anything in excess of his share, as a co-sharer, under Section 165 of the Agra Tenancy Act II of 1901). Alambardar is not merely a co-sharer but also the agent of the other co-sharers and he is authorised to represent them in all transactions appertaining to the administration of the mahal and the collection of its profits. Section 4 of the U.P. Land Revenue Act (III of 1901) defines a lambardar as co-sharer of a mahal appointed to represent all or any of the co-shares in that mahal. If he were not authorised to collect the rents from all the tenants he would obviously not be in a position to render accounts to his co-sharers under Section 164 of the Agra Tenancy Act in such a manner as to close the determination of his and their liability for the period in question with any finality. If he is entitled to collect the rents from the co-shares, he is equally entitled to charge any of the co-sharers who may hold khudkasht land in excess of their share, with a liability for the excess. On behalf of the surviving defendant-appellant, reliance has been placed on the decision in Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 34 A 98 : 8 A.L.J. 1245. But the correctness of that decision has been questioned in a later decision in Ganga Singh v. Ram Sarup 33 Ind. Cas. 119 : 38 A 223 : 14 A L.J. 252 where, referring to the above decision, the learned Judges who decided the latter case observed (page 225 page of 38 A.--[Ed.]):-- "It seems to us that, if the case of Bishambhar Nath v. Bhola 12 Ind. Cas. 920 : 34 A 98 : 8 A.L.J. 1245 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 rents, 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 khudkasht in excess and who have refused to allow the sir and khudkasht, which they hold to be taken into account." It is well-recognised that in an undivided mahal a co-sharer is entitled as against the lambardar to have taken into account the profits of the sir and khudkast land held by the other co-sharers in the village; and, if he is so entitled, the lambardar ought to have the right to collect such profits as any of his co-sharers may have realized in excess of their share either from the tenants or from the sir and khudkasht land in thei possession taken together. Section 165 of the Agra Tenancy Act (II of 1901) does not exclude the general authority, which the lambardar possesses to represent his co-sharers in such a litigation.
3. It is also urged that the claim about 1324 Fasli is barred by limitation. The suit was filed on the 30th July 1920. It ought to have been filed within three years from the date when the right to accounts accrued and the share of the profits became payable. According to the dastur dehi the accounts are to be rendered in Asarh, which ended in that year on the 4th of July 1920. The suit for 1324 Fasli was, therefore, barred by limitation.
4. The appeal is accordingly allowed in so far that the claim for 1324 Fasli will stand dismissed as far as it affects the surviving defendant-appellant, with proportionate costs appertaining thereto. The rest of the decree of the lower Appellate Court will stand confirmed. The successful defendant-appellant will get one-third of his costs from the plaintiff-respondent who will get two-thirds of his costs from the surviving defendant-appellant in this Court.