Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Nilmani Gountia vs Jogendra Gountia on 25 April, 1910
Equivalent citations: (1910) ILR 37 Cal 694
Author: B A Sharfuddin
Bench: Brett, Sharfuddin


Brett and Sharfuddin, JJ.

1. In support of this appeal, it has first been argued that the lower Appellate Court is wrong in holding that the lambardar is not alone entitled to bring a suit to eject the defendant. It has been argued that as the lambardar is the agent for the purpose of representing the body of proprietors in their dealings with the Government, and as, for that purpose, he has to collect the rents, therefore he must be held to be, as an agent on behalf of the other co-sharers, entitled to bring a suit for ejectment. Reliance has also been placed on a judgment of the Judicial Commissioner of the Central Provinces in the case of Ram Ruttan Ram Gopal v. Hira Laxman (1891) 5 C.P.L. Rep. 47 to support the view that the lambardar must be looked upon as the landlord whose consent under Section 61, Clause (2) of the Central Provinces-Tenancy Act of 1898 is necessary to the validity of a transfer of property, and that, as he can by his consent make a transfer valid, so, if he withholds his consent, he is entitled under the law to sue to eject a transferee. In our opinion these contentions cannot be sustained. No doubt a lambardar represents the body of co-sharers in their dealings with Government for certain purposes, but the duties of a lambardar are explained in Section 138 of the Central Provinces Land Revenue Act. That section does not give to the lambardar power to eject trespassers from lands or to eject tenants. Section 11 of the same Act defines a lambardar as “a person appointed in the manner prescribed by the Act to represent the proprietary body of a mehal in its relations with Government.” The institution of a suit for ejectment against a purchaser is not one of the duties which the lambardar can be held to have to perform as representing the co-sharers in their relations with Government. The learned Subordinate Judge has held that the plaintiff lambardar cannot succeed in the present suit, because he, being only one of several co-sharer landlords, cannot alone sue to eject the defendant as a trespasser. This view has been accepted by the Judicial Commissioner of the Central Provinces in the case of Gopal Ram Krishna v. Govind Pandurang Bangari (1900) 13 C.P.L. Rep. 113. It is true that in that case the persons who brought the suit were co-sharers in a village, and they were not joined by the lambardar as a plaintiff, and the learned Judge, in holdings that those persons were not empowered under the law to bring the suit, accepted the principle which obtains under the Bengal Tenancy Act and other Tenancy Acts that, where an act has to be done by a landlord, and there are several landlords of the village, the act can only be done by all those several landlords acting in concert, and cannot be done by one or two of their number. This is the view which the lower Appellate Court has adopted in dealing with the present case. In our opinion it is correct. It has, however, been argued that even if the lambardar could not sue to eject the defendant from the entire holding, still he was entitled to a decree for joint possession with the defendant. We think that argument is not sound. In the first place, the suit was instituted by the plaintiff against the defendant as a trespasser, and he certainly could not be granted a decree for joint possession with a trespasser; and, secondly, as in the present case, the other co-sharers are not parties to the suit, and as the question cannot be considered and determined whether they are consenting parties to the transfer, it would be manifestly undesirable and impossible that a decree should be granted to the plaintiff for joint possession with the defendant as tenant. We think that the view taken by the lower Appellate Court is correct, and that it has rightly interpreted the provisions of the law as laid down in the Central Provinces Tenancy Act. We, therefore, confirm the judgment and decree of the lower Appellate Court and dismiss the appeal with costs.

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