1. This is a plaintiff's appeal. She is an assignee of land revenue in respect of certain zamindari property and the defendants are cosharers in the same property. She brought a suit under Section 223, Agra Tenancy Act, Local Act 3 of 1926 against the defendants for arrears of land revenue in respect of the years 1334, 1335 and 1336 fasli. So far as the present appeal is concerned the only question, which is in controversy is the question whether a joint decree should be passed against the cosharcrs for the entire-claim or whether the separate liability of the various defendants should be apportioned and a decree fixing the separate liability of the various cosharers should be passed.
2. When this point was taken before the assistant collector for the first time he held that the suit could be filed against the cosharers collectively and. the decree should be passed against them jointly. On appeal the learned District Judge was of the opinion that the 'liability of the defendants should be specified in the decree' and he therefore remanded the case to the learned Assistant Collector. On remand the trial Court apportioned the liability and passed a decree fixing the share of each cosharer. On appeal the learned District Judge confirmed the decree of the trial Court and, when the point was taken before him that the order of his predecessor in office directing that each defendant was liable separately only to the extent of the revenue due from him was wrong, he held that he could not sit in appeal over the order of his predecessor and he could not grant any relief on that point to the plaintiff.
3. The plaintiff has therefore come to this Court and urges this plea before me. A preliminary objection is taken by the respondents that by reason of the provisions of Section 105, Clause 2, Civil P.C., the plaintiff is precluded from disputing correctness of the order of remand, but there is no force in the preliminary objection because the prohibition exists only if an appeal lay from the order of remand and under Section 249, Agra Tenancy Act, no appeal lies from any order passed in appeal. The plaintiff is therefore not debarred from urging the point after the decree of the lower appellate Court on the second occasion.
4. Coming now to the merits of the case I am of the opinion that the original decree of the learned Assistant Collector before remand was correct. Under Section 142, U.P. Land Revenue Act, all the proprietors of a mohal are jointly and severally responsible to Government for the revenue for the time being assessed thereon. The liability of the proprietors is therefore joint and several and the plaintiff being an assignee of revenue, when she sues the proprietors for arrears of revenue due from them, is entitled to enforce this joint and several responsibility. The learned Assistant Collector also sought some strength from Section 228, Tenancy Act. That section says that in any suit under Sections 221, 222 or 227, the plaintiff may sue any number of cosharers collectively, but in such case the decree shall specify the extent to which each of the defendants is affected thereby. It is worthy of note that Section 223 is not one of the sections mentioned in Section 228 and the learned Assistant Collector was of the opinion that if the cosharers in a suit under Section 223 were also to be liable separately then Section 223 would also have been included in Section 228, Agra Tenancy Act. The learned District Judge on appeal has noticed this argument and while confessing that he was not able to find out why the Legislature made a distinction between suits under Sections 221, 222 and 227, on the one hand and Section 223 on the other has, also attempted to answer it. He says that Section 228 definitely gives the plaintiff a right to sue the cosharers collectively in suits under Sections 221, 222 and 227 and then enacts that the extent of the liability of each of the defendants shall be specified in the decree. There is no provision for a muafidar or an assignee of revenue suing the cosharers collectively and therefore it was not necessary to say that the separate liability of the various defendants shall also be specified. The learned Judge then proceeds to discuss Order 1, Rule 3, Civil P.C., which points out as to what persons can be joined as defendants and then to Order 1, Rule 4 which says that the respective liabilities of the defendants will have to be determined. The reasoning of the learned District Judge does not appeal to me. Sections 221, 222 and 227 ordinarily speak of a chsharer who is a defaulter and the ordinary suit under these provisions would be a suit by the plaintiff against a single cosharer and it was therefore thought necessary to enact Section 228 in order to give the plaintiff a right to join several persons as defendants if several cosharers were in default. Section 228, Agra Tenancy Act, is only a branch of Order 1, Rule 3 and Order 1, Rule 4, Civil P.C.
5. In the case of a muafidar or assignee of revenue if there are several cosharers liable to pay revenue, the right of the assignee to proceed against all is obvious and there was no necessity to make a provision that he could sue the coharers collectively. The only point that one has then got to see is whether in the suit the liability of the defendants has got to be specified or whether the liability is joint and several, and in this case under Section 142 the liability is joint and several and there cannot be an apportionment of the liability unless specially provided for and there is no such special provision in the case of Section 223.
6. The learned District Judge noted Section 142, Revenue Act, but he said that the provisions contained therein are for the Government alone and:
the position of the assignee of the Government is not the same. There are rulings of the Allahabad High Court to that effect.
7. It would have been better if the learned District Judge had taken me into his confidence so far as these rulings are concerned because it was conceded at the bar before me that there were no such rulings which could be of use in connexion with the present case. It may be that the position of the assignee is not the same as the position of the Government so far as their respective rights are concerned because it is conceded that it is not open to an assignee to proceed under Section 146, Land Revenue Apt, for recovery of the revenue. But it is not the right of the plaintiff that has got to be considered, but the corresponding duty of the defendants. The assignee is given the right to sue under Section 223 for arrears of revenue and under section 142, Land Revenue Act, it is provided that the proprietors of a mohal are jointly and severally responsible. It is true that they are jointly and severally responsible to Government, but I can see no reason why they should not be burdened with the same liability in the case of an assignee of revenue.
8. For the reasons given above I am of the opinion that this appeal ought to be allowed. It is conceded by parties that if I hold that the liability of the various defendants is not to be specified the decree of the Court of first instance dated 25th September 1930. is to be restored. I therefore allow this appeal, set aside the decree of the lower appellate Court dated 19th January 1933, the decree of the Assistant Collector dated 28th September 1931, the order of the learned District Judge dated 23rd June 1931, and restore the decree of the learned Assistant Collector dated 25th September 1930. The plaintiff is entitled to her costs in all Courts. Leave to file an appeal by way of Letters Patent is granted.