The main legal point established in the judgment is the applicability of the Bench decision regarding the recoverability of Lambardari Huqq and the competency of the appeal despite a final decree.

Kinkhede, A J C—The defendant who is admittedly a Sadar Lambardar and Lambardar has come up in second appeal against the remanding judgment of the learned District Judge of Jubbulpore and challenges the correctness of the decision only in so far as it relates to the disallowance of his claim for Lambardari Huqq. It is admitted that his appointment was made: in Samat 1975, i.e., after the new Land Revenue Act 1917 came into force and that the revenue officer has not yet fixed the remuneration payable to him in one capacity or the other. The first Court disallowed the claim for Lambardari Huqq and the District Judge has upheld the said decision in this respect. Hence this appeal by him.

2. In second appeal, the respondent has taken a preliminary objection to the effect that no appeal lies against a mere finding embodied in the remaining judgment and secondly that since the date of remand the Court of first instance passed a final decree which has not been appealed against and that the result, therefore, is that the. present appeal is rendered nugatory. The appellant's learned pleader says that or the basis of the remanding judgment the lower appellate Court has passed a decree and that a perusal of para. 8 of the judgment will show that the District Judge-intended that certain matters should be treated as finally settled between the parties. The adjudication as embodied in. the said judgment clearly adjudicates the rights of the parties in regard to certain matters and the disallowance of Lambardari Huqq is one of the matters finally decided. The decision has, therefore, all the force of a decree and is appealable as such.

3. I am not prepared to subscribe to the other contention that the present appeal has been rendered nugatory by reason of a final decree having been passed and not being appealed against. That decree was, admittedly passed after the present appeal was preferred, and following the view taken in Kanhaiya Lal v. Tirbeenisahai, 1914 36 ILR(All) 532, I hold that the present appeal is competent : cf. First Appeal 80-B of 1925.

4. As regards the merits: I think the matter must be considered as concluded by the decision of the Bench of this Court in Anandrao v. Daulat, 1926 AIR(Nag) 274 which lays down, that in all appointments of lambardars the remuneration of that post unless fixed by a revenue officer, is not recoverable by suit. Here the defendant does not sue to recover the remuneration, but he seeks to retain to himself a portion of the income; and, therefore the matter may not be strictly covered by the Bench decision, but if a suit is not maintainable, on the same analogy a defence also may mot be available. I am supported in this view by the principle underlying the decision of Bose, A.J.C., in Chatur Bhuj v. Chandirmool,1910 6 NLR 27, where the defence was also held to be barred see observations at p. 29. The appeal, therefore, fails and is dismissed with costs.

Final Result : Dismissed