SRI RAM Vs. JAI KISHAN LAL

JUDGEMENT

(1.) This is a second appeal by the plaintiff and arises out of a suit brought by him for recovery of the defendants share of revenue alleged to have been paid by the plaintiff. The suit was one under Section 222, Agra Tenancy Act, and was brought before an Assistant Collector. The defendants pleaded that the plaintiff's father who was lambardar died in the year 1337-F, when the plaintiff alleges to have paid the revenue in question, that the plaintiff's father was bound to make collections diligently on behalf of all the co-sharers including the defendants, that in consequence of his negligence arrears were not collected from the tenants and that the plaintiff as representing his father was liable to pay to the defendants the tatter's share of the profits of 1337-F, and finally that the revenue paid by the plaintiff cannot be considered to have been paid on behalf of the defendants who had defaulted in paying their share. It was not made clear by the defendants that the revenue paid by the plaintiff had accrued due in the life-time of his father. The Court of first instance decreed the plaintiff's claim in full. The defendants appealed to the District Judge who held that the plaintiff was not entitled to recover the sum claimed by him unless he established that the payment had been made out of his own pooket and not out of funds of the defendants in the hands of the plaintiff. The decree of the Court of first instance was accordingly set aside and the case was remanded for a fresh decision. No appeal is allowed by the Agra Tenancy Act from an order of remand and consequently it remained unchallenged till a later stage.

(2.) The Assistant Collector held after remand that the plaintiff failed to establish by rendering proper accounts that no profits were receivable by the defendants from him and that consequently it could not be said that the plaintiff had paid revenue for the defendants who had defaulted. On that finding, the Assistant Collector dismissed the plaintiff's suit. The latter appealed to the District Judge who concurred with the Assistant Collector in holding that the plaintiff failed to establish that he had paid the revenue now claimed against the defendants out of his own pocket. In that view the plaintiff's appeal was dismissed.

(3.) In the present second appeal, the plaintiff has challenged the ratio decidendi adopted by the District Judge, viz. that the plaintiff must establish by proper accounting that he had no profits belonging to the defendants in his hands when the revenue of the defendants share was paid by him. Learned Counsel for the defendant-respondents strongly argued that the first order of remand in which that principle was laid down between the parties became final and that it operates as res judicata at subsequent stages. In our opinion this contention has no force. The Agra Tenancy Act does not allow an appeal from an order of remand, and there is nothing to prevent such order being questioned by a superior Court when the final decree is appealed from. The Civil Procedure Code is applicable to suits and appeals under the Tenancy Act, except so far as it is inconsistent with the provisions of the Act ( Section 264). Section 105(1), Civil P.C., allows a non appealable order to be challenged in appeal from the decree and is applicable to cases under the Tenancy Act. Section 105(2) is not applicable, as the Tenancy Act does not allow an appeal from an order of I remand.