JUDGMENT Niamatullah, J.
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.
4. The first order of remand passed by the District Judge in the present litigation could not have been challenged by the plaintiff in a second appeal to this Court. It is only when he preferred the present appeal from the decree that the plaintiff could question the correctness of the order of remand passed by the District Judge. We are of opinion that there is nothing in law to debar us from examining the correctness of the view on which the decision of the District Judge proceeds. Our view finds support from the case in Shankar Lal v. Muhammad Amin (1922) 9 A.I.R. All 118 and the case in Kalika Prasad v. Ajudhia Prasad (1929) 16 A.I.R. All. 421. On the merits of the question involved in this appeal, we are unable to agree with the learned District Judge that the plaintiff cannot recover from the defendants their share of the revenue paid by him unless he renders an account of collections made by him and demonstrates that no money belonging to the defendants was in his hands when he paid the revenue of their share. We may note that the plaintiff does not admit that he made any collection for the defendants. The plaintiff was not the lamberdar and it is common ground that after the death of the plaintiff's father, who was the lambardar, till another lambardar was appointed, every cosharer collected for himself. In our opinion the plaintiff is entitled to call upon the defendants to pay to him what they ought to have paid to the Government in respect of their share. Their liability being joint and several, the Government were at liberty to recover it from the plaintiff alone, but as between the plaintiff and the defendants, the former is undoubtedly entitled to contribution.
5. The defendants' plea that the plaintiff has paid out of their profits in his hands or out of what his father ought to have collected and was liable to pay to the defendants is in substance a plea of set-off which cannot be entertained in view of Schedule serial No. 10, Agra Tenancy Act. The only manner in which he may raise it is that he should institute a separate suit instead of taking it in his written statement. The learned advocate for the defendants contended that his plea amounts to a plea of payment and not a plea of set-off. He maintains that since the plaintiff had in his hands moneys payable to the defendants of their share of profits, any payment made by the plaintiff on their behalf should be considered to have been made out of their funds. In the first place, the defendants have not proved by any evidence that the plaintiff had any funds belonging to them in his hands. In the second place we do not think that in the absence of any arrangement between the parties the so-called plea of payment can be distinguished from the plea of set-off which is barred by the Agra Tenancy Act. The view taken by the learned District Judge was supposed to have been laid down by a Division Bench of this Court in Jagmohan Lal v. Ganga Prasad (1930) 130 I.C. 207. On a careful examination of the judgment in that case, we are dearly of opinion that the decision in that case is limited to the peculiar facts of that ease. There was an agreement between the co-sharera that the plaintiff would pay the land revenue of the defendant's share out of the property left with him by the defendant who had retained only a small portion of the mahal. The plaintiff who paid the revenue of the defendant's share claimed it in a suit under Section 222 against the defendant who pleaded that the revenue had been paid out of the profits belonging to the defendant. The learned Judges observed on those facts that it had not been proved that the plaintiff paid the land revenue for the years in suit because the defendant defaulted and that the plaintiff had made the payment out of his own pocket. The learned Judges never intended to lay down the broad proposition that a plaintiff suing the defendant for the latter's share of revenue paid by the former must establish that he paid it out of his own pocket. It is only in cases that the parties have previously arranged between themselves that the plaintiff would pay the defendant's share of the revenue out of funds belonging to the defendant and made avail, able to the plaintiff that the defendant is entitled to say that the plaintiff must have paid it in terms of the arrangement and if he has not done so, and if it was not possible to carry out the arrangement, he must establish that fact so as to render the defendant liable in spite of the arrangement settled between the two. The learned District Judge has not noticed the distinction between the reported cases and the class of cases illustrated by the one before us.
6. A learned single Judge of this Court seems to have taken a similar view in Durga Narain Singh v. Shankar Singh (1934) 21 A.I.R. All. 813. We have carefully read the judgment and find that the essential characteristic in Jagmohan Lal v. Ganga Prasad (1930) 130 I.C. 207 followed in that case was overlooked by the learned Judge. With due deference we are unable to follow that case. For the reasons already explained we think that this appeal ought to succeed. It is accordingly allowed. The decrees of the two Courts below are set aside and the plaintiff's suit is decreed with costs throughout.