1. This is a plaintiff's second appeal and arises from a suit under Section 227, Agra Tenancy Act, which provides for suits for settlement of accounts between co-sharers in a mahal. The plaintiff is admittedly a lambardar. He alleged in his plaint that the defendants were in possession of sir and khudkasht lands the estimated rent of which is far in excess of the total amount of profits to which they are entitled. Accordingly the plaintiff claimed the excess. When the case went to trial, the plaintiff made a grievance of the fact that other co-sharers had sued him and obtained decrees for their shares of profits, with the result that the plaintiff had to part with what would have enabled him to recoup himself to the extent of his share in the profits of the mahal. His case was that if the excess payable by the defendants is recovered, he (the plaintiff) would be compensated for the loss of profits occasioned to him; in other words, whatever is payable by the defendants as profits in excess of their shares is due to the plaintiff and not to any other cosharer. How far these allegations are true does not appear from the judgment of the lower Appellate, Court which dismissed the plaintiff's suit on a preliminary ground. The trial Court had decreed the plaintiff's suit for Rs. 129-14-0. The lower Appellate Court did not enter into an account of the profits, but held, relying on Koka v. Chunni : AIR1927All623 , that the plaintiff's suit is not maintainable.
2. We think that there is nothing to prevent a lambardar from instituting a suit for settlement of accounts under Section 227, Agra Tenancy Act. It is clear to us that every lambardar is a co-sharer first and anything else afterwards. The fact that he is a lambardar does not make him any the less a co-sharer. We have carefully examined the case above referred to and do not find that the learned Judges who decided it held that a lambardar is not entitled to institute a suit for settlement of accounts under Section 227, Agra Tenancy Act. Their decision is confined to the facts of that case. It is true that they have acted upon a principle which is applicable in other similar oases, but every difficulty which suggested itself to the learned Judges in the way of granting a relief to the lambardar instituting the suit under Section 227 arose from the fact that the other co-sharers were not parties. The learned Judges observed:
One co sharer is not entitled to claim the whole of the excess la the hands of another co-sharer merely because he is short to that extent of his fractional share in the income of the mahal. All the other co-sharers who are similarly short, are entitled to share in the excess income enjoyed by any one co-sharer and they must be made parties to the suit by the one co-sharer. This fact was ignored by the trial Court.
3. The learned Judges then held :
A suit, under Section 165, (present Section 227), Agra Tenancy Act, must be one for accounts primarily and it must be shown by figures that the other co-sharers have no claim to the excess which the Co-sharer who is plaintiff is claiming. The fact that the plaintiff may have paid off any co-sharer, out of his own pocket any money, will not give the plaintiff a right to recover the money so paid from a third co-sharer.
4. It seems to us that if a plaintiff, whether ho is a lanjbardar or an ordinary co-sharer, impleads all other co-sharers in a suit for settlement of accounts under Section 227, no difficulty can arise and the Court will be in a position to determine which of the co-sharers is entitled to profits and which of them, having collected in excess of his share, is liable to pay. If it appears, as is alleged to be the case between the parties before us, that the only person to whom the excess in the hands of one of the co-sharers should go is the plaintiff, there should be no difficulty in passing a decree in favour of the plaintiff against that particular co-sharer. Even if the plaintiff omitted to implead all necessary parties in his plaint, the Court should, in the exercise of its wide powers under Order 1, Rule 10, Civil P.C., implead all or such other co-sharers as may be considered to be interested in the result of the suit so as to decide once and for all the rights and liabilities of all the co-sharers in the mahal. We think that the case before us is eminently one in which all other on sharers should have been impleaded even at a late stage. Accordingly we set aside the decrees of both the Courts below and remand the case to the Court of first instance for disposal according to law as herein indicated. Costs shall abide the result. Having regard to the nature of the remand order passed by us, we do not think that the appellant is entitled to a refund of the court-fee.