A co-proprietor who sells his share and becomes an occupancy tenant is primarily entitled to claim the rent, not the lambardar, based on the interpretation of relevant legal provisions.

Findlay, J C—The plaintiff Santosh Rao, the lambardar malguzar of mouza Pangar Mahal 2, sued the defendant-appellant Babu for rent of his occupancy field. The defendant denied his liability to pay rent to the plaintiff on the ground that the village share in question, including the sir field, had been sold to one Vithoba through the civil Court and that the latter was, therefore, the proprietor of the field and he only had the right to demand rent. Apparently its was admitted in the first Court that the sir field in question had been previously held in severalty by the defendant who had a proprietary share in the village. The first Court accordingly dismissed the plaintiff's claim. The plaintiff appealed to the Court of the District Judge who decreed the plaintiff's claim on the ground that the present case differed from the facts of Dhondba v. Vishwanath,1902 15 CPLR 143, and was also contrary to the view taken by the Chief Commissioner in a revenue appeal. The District Judge was further of opinion that the matter was settled in any event by Section 188(2)(a), Land Revenue Act, and he accordingly reversed the judgment of the first Court and decreed the plaintiff's claim. The defendants has now come up here on second appeal.

2. The decision of the District Judge was given before a Bench of this Court had considered precisely the point at issue in the present one. The Bench in question, Baribahu v. Ganesh Singh, 1928 AIR(Nag) 39, have held that where a co-proprietor of a village sells his share to a third party and becomes an occupancy tenant of his sir-held in severalty, such an ex-proprietor is the tenant of his vendee and that the vendee is primarily entitled to claim the rent and not the lambardar. Having regard to the definitions of ''landlord'' and ''tenant'' in Section 2(7) and (11) respectively of the Tenancy Act, I think this conclusion is inevitable, Section 188(2)(a), Land Revenue Act does not, in my opinion, exclude the cosharer concerned in a case like the present from demanding rent from his tenant. The advocate for the respondent has urged that there has been no proof that the sir land here was previously held in severalty. That seams to have been assumed and admitted by all concerned in the case, and, if the plaintiff's plea in the lower Courts had been otherwise, I should have expected to find a distinct mention thereof. The whole bone of contention in the lower Courts is precisely the point on which the Full Bench decision quoted above has been given, and that decision, in my opinion, applies proprio vigore to the facts of the present case. It follows, therefore, that the payment of rent by the present appellant to his landlord, the purchaser, was a valid one and that the plaintiff's present claim must fail.

3. The judgment and decree of the lower appellate Court are accordingly reversed and instead a decree will issue dismissing the plaintiff-respondent's suit. The latter must bear the defendant-appellant's costs in all three Courts.