NANDLAL SINGH Vs. RAM KIRIT SINGH

JUDGEMENT

(1.) This appeal is directed against a decision of the Subordinate Judge, Second Court, Gaya, affirming a decision of the Munsif, First Court, Gaya, in a suit for contribution, The appellant was defendant 1 in the suit. In village Dardha, under the proprietress Sayeeda Khatoon, there is a dar-mokarari tenure comprising a share of eight annas Dokhta of the village. It is held in the following shares: (1) Plaintiff's two annas; (2) defendant 1, one anna, and (3) defendants 2 and 3 five annas. The one anna share was formerly held by Tufail Ahmad (defendant 5), from whom defendant l acquired it by purchase in 1345 Fasli. Dar-mokarari rent having fallen in arrears, the proprietress sued and obtained a decree against the plaintiffs for the arrears of rent for the years 1342 to 1345 Fasli. Defendant l was not impleaded in the rent suit. The plaintiffs deposited Rs. 1,945-7.0 towards satisfaction of the decree and the other co-sharer dar-mokararidars having paid their quota of the dues in accordance with their respective shares, brought this suit for contribution against defendant 1. On the allegation that defendant l in his sale-deed undertook to pay the arrears for 1342, they sought contribution from defendant l in respect of that year also, but in the alternative, sought contribution for this year from Tufail Ahmad.

(2.) Defendant 1 resisted, disclaiming liability on the ground that he was not a party to the rent suit, and further that, in the course of the execution of the decree for arrears of rent, his share of one anna was exempted from sale on an objection under Order 21, Rule 58, filed by him. Tufail Ahmad being dead, his legal representatives have taken the defence that defendant 1 having undertaken the liability in the sale-deed, was liable to contribute and not Tufail Ahmad.

(3.) The learned Munsif accepted the defence of the representatives of Tufail Ahmad and, on considerations of equity, found defendant l liable to contribute in proportion to his share in the darmokarari interest. In view of the fact that the rent decree was not passed against him, and that his one anna share was exempted in the execution proceedings, he considered that Sections 69 and 70, Contract Act, have no application. On these findings, he proeeeded to decree the suit in full. The Subordinate Judge in appeal bas baaed the decree against defendant 1 on Sections 43, Contract Act. Like the Munsif, be has relied upon the sale-deed as imposing on defendant l the liability to contribute in respect of the year 1342. He has pointed out that the Munsif inconsistently with his findings decreed the suit against the representatives of Tufail Ahmad, but he found himself unable to interfere as there wag no appeal or cross-objection by them before him.