1. This appeal arises out of a suit for recovery of Rs. 378-3-0 principal and Rs. 134-13-0 interest, in respect of certain land revenue which had been paid by the plaintiff-appellant by reason of a default on the part of the cosharers of mauza Mohammad pur Gularia, mahal Soem. Mt. Gaura and 34 other persons were cosharers in this mahal. Mt. Gaura had executed a simple mortgage of her share in this property in favour of the plaintiff-appellant. She had also passed a mortgage in favour of one Ujagir Singh. Ujagir Singh put his mortgage into suit, obtained a decree against Mt. Gaura and purchased her interest in the property himself. Plaintiff brought a suit for enforcement of his prior lien by suit No. 136 of 1917 which was directed both against Mt. Gaura, the mortgagor, and Ujagir Singh, the puisne encumbrancer, who had in the meantime already purchased the property. The plaintiff's claim was decreed and in execution of the final decree obtained by him, the interest of Mt. Gaura in the property was purchased by the plaintiff decree-holder on 20th December 1920.
2. Mt. Gaura was the cosharer of this mahal at the time of the auction sale. All the other cosharers who are defendants in the present action including Mt. Gaura, were in arrears of Government revenue to the extent of Rs. 378-3. The factum of the cosharers being in arrears to the above extent was notified at the time of sale, but the property itself does not appear to have been sold subject to the lien in favour of the Government. The Government, however, recovered the entire amount, namely, Rs. 378-3 from the plaintiff at the time of the auction purchase. The present suit has been instituted for recovery of that amount from the cosharers together with interest.
3. The defendants denied their liability and pleaded that the position of the plaintiff was that of a volunteer and he was not entitled to recoup himself by contribution or otherwise from the defendants. This plea found favour with the trial Court which dismissed the suit upon the ground that the payment made by the plaintiff was voluntary and the suit was misconceived. The lower appellate Court has affirmed this decision.
4. We have not the slightest doubt in our mind that the judgments of the Courts below are wrong and must be set aside.
5. Section 142, Land Revenue Act, provides that:
all the proprietors of the mahal are jointly and severally responsible to Government for the revenue for the time being assessed thereon, and all persons succeeding to proprietary possession therein, otherwise than by purchase under Section 160, shall be responsible for all arrears of revenue due at the time of their succession.
6. It is not disputed that the plaintiff is a person who succeeded to the proprietary possession of the interest of Mt. Gaura in the mahal otherwise than by purchase under Section 160, Land Revenue Act. It is equally clear that he was responsible for all arrears of revenue which were due at the time when he succeeded to the property. The position of the plaintiff therefore was not that of a volunteer in any sense at all. The plaintiff did not voluntarily make payment, but the amount was recovered from him at the time of the auction sale. The learned Judge of the Court below was therefore not right in holding that the deposit made by the plaintiff was voluntary. The plaintiff was legally responsible for the payment of that amount. The liability was not of his own choosing or of his own creation. He was held responsible for the revenue which had fallen into arrears by reason of the default of the cosharers before his auction purchase.
7. The next question which requires to be determined is as to whether the plaintiff was entitled to recover this amount from the cosharers. His claim against Mb. Gaura may stand upon a slightly different footing. He has succeeded to the estate of Mt. Gaura which was liable pro tanto to the extent of her liability in the arrears of Government revenue. The plaintiff having succeeded to the estate of Mt. Gaura may be held liable for the amount due to the Government which stood charged upon her share in the property. The position of the remaining 34 defendants was altogether different. They were jointly and severally liable with Mt. Gaura for the payment of Government revenue. The liability was sought to be enforced against Mt. Gaura because she happened to be the lambardar. The plaintiff having discharged this liability is entitled to recover that amount under Sections 69 and 70, Contract Act. The plaintiff was clearly a person interested in the payment of the arrears of revenue which the defendants were bound by law to pay, and the plaintiff having had to pay the amount is therefore entitled to be reimbursed by these defendants. The payment moreover was made by the plaintiff not gratuitously but under a compulsion of law. Where the plaintiff therefore as being the auction-purchaser of this property had to pay the arrears of revenue duo from the co-sharers and not having intended to do so gratuitously, he is entitled to claim compensation from the cosharers under Section 70, Contract Act. The judgment of the Court below proceeds upon a preliminary point and we do not agree with its judgment. The case has not been disposed of on the merits.
8. We set aside the decrees of the Courts 'below and remand the case to the trial Court through the lower appellate Court for disposal of the claim on the merits. The plaintiff is entitled to the costs of this Court and also of the lower appellate Court. The other costs are to abide the event.