RAMJANAM SINGH Vs. RAMANAND SINGH

JUDGEMENT

(1.) THE plaintiffs are the petitioner. A rent decree was obtained against them and the opposite parties by the landlord in 1956 in respect of khatas 185, 186, 189, 202 and 207. Defendant No. 1 (opposite Party No. 1) was the original tenant under these khatas, and he had transferred different plots under those khatas to different persons. THE landlord chose to bring a suit for arrears of rent against not only defendant No. 1, but also his transferees including the plaintiffs. THE rent decree was put under execution, and the plaintiffs satisfied that decree. THE present suit was brought by the plaintiffs against the defendant-opposite parties for recovery of money which they had paid in execution of that rent decree which was payable by the defendants. THE trial Court has held that the suit was not maintainable on the Small Cause Court side, as Article 41 of the Provincial Small Cause Courts Act was a bar. I am afraid, this was not a bar. Article 41 does not bar all contribution suits. It only bars such kind of contribution suits which have been enumerated there. A suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a co-sharer has been kept out under this Article, from the cognizance of the Small Cause Court Judge. THE point for decision In the present case will, therefore, be whether the plaintiffs' suit was for contribution by a sharer in joint property in respect of payment made by them of money due from other co-sharers. No doubt, the Jama in respect of the khatas, enumerated above, is joint, but the very fact that the landlord instituted the rent suit against all the transferees of the recorded tenants goes to show that the landlord recognised such transfer and also the transferee-tenants, which will amount to splitting up of the rent, for the purpose of individual liability of the different tenants. It is not a case, therefore, that there was any jpint property held by the plaintiffs and the defendants, in the sense that their respective liabilities were not determinable as far as the landlord was concerned. It is not disputed that the plaintiffs paid the decretal amount, for which there was a Joint liability under the decree against the plaintiffs and the defendants. Learned counsel for the opposite parties relied on a case in Ram Sarup Pathak v. Hazari Mahton, AIR 1920 Pat 506. THEre the plaintiff mortgaged a portion of his holding to the defendant, who agreed to pay a proportionate amount of the rent to the landlord. THE defendant failed to pay his share of the rent to the landlord, and the landlord obtained a rent decree against the plaintiff, as he was a recorded tenant in respect of the whole of the holding. THE mortgage was not recognised by the landlord. In order to save the holding from being sold in execution of the rent decree, the plff. paid off the amount of the decree and then brought the suit to recover the agreed share of the rent from the defendant. In these circumstances, it was held that the suit was barred by Article 41, Schedule 2. Provincial Small Cause Courts Act. THE distinguishing feature to be noticed is that in that case the mortgage, which was for a portion of the property, was not recognised by the landlord. But, in the present case, the landlord had recognised the transfer made by defendant No, 1, the recorded tenant. THE case, which will be more appropriate for consideration on the foots of the present case, will be the case of Somar Ram Kahar v. Jagdeo Singh, 18 Pat LT 637: (AIR 1937 Pat 382). THEre the plaintiff paid the entire amount to satisfy a rent decree and later brought a Small House Court suit for recovering that amount, less the amount for which he himself was liable. It was held that it was contribution suit but it did not come within the purview of Article 41. Other cases in this connection that may be noticed and which support the view that the present case will not be affected by Article 41 are Suraj Baksh Singh v. Raghubar Singh, 24 Ind Cas 28: (AIR 1914 Oudh 385) and Bhagwati Prasad Singh v. Mohd. Abul Hasan Khan, AIR 1918 Oudh 435.

(2.) THE result is that the judgment of the Court below is set aside and the case is remanded to it for disposal, according to law, on the merits of the case. In view of the circumstances of this case, I would direct the parties to bear their own costs of this Court.