GOVINDA SUNDAR SINGH CHOWDHURY AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES HARERAM SINHA CHOWDHURY Vs. MOHESH CHANDRA GOPE

JUDGEMENT

(1.) This appeal arises out of a suit which has been described as one for contribution. The fasts out of which the suit arose appear to be these:--The defendant, becoming the purchaser of an occupancy jote, was recognised as the tenant and paid the rent to the present plaintiff as his landlord. A rival landlord brought a suit against both for recovery of possession of the land comprised in the jote, on the ground that the said land did not belong to the present plaintiff or appertain to his Zemindari; but on the contrary appertained to the Zemindari of the plaintiff in that title suit. The suit was contested by both the present plaintiff and the present defendant; resulting in a decree in favour of the then plaintiff. His successor-in-interest next brought a suit and obtained a decree for mesne profits in the sum of Rs. 107. The decree was against both the present plaintiff and the defendant. When the decree-holder put his decree in execution, the plaintiff paid the sum of Rs. 107 and satisfied the decree. He now seeks to recover this sum of Rs. 107 from the defendant, on the allegation that the defendant had fraudulently made false representation to him and so persuaded him to contest the previous title suit.

(2.) Both the Courts below have found that there was no misrepresentation by the defendant and that in withholding possession from the true owner and in contesting the suit to which we have made reference, the plaintiff acted with his eyes open, knowing well that the land in question did not belong to him. Both the Courts below have, there fore, found that the plaintiff was not entitled to recover from the defendant. In the first Court there is no finding against the good faith of the defendant, while on the other hand in the Court of first appeal the learned District Judge appears to hold, though his judgment is far from being clear, that the defendant also knew that his landlord had no title and that ha also was a tort feasor.

(3.) A preliminary objection is taken to this appeal on the ground that this being a suit of a Small Cause Court nature and the value of it being under Rs. 500, no second appeal lies. The appellant contends that the suit is one which may be regarded as falling within Article 41 of the Second Schedule to the Provincial Small Cause Courts Act. We are unable to accept this contention, and it is not suggested that the suit was one falling within any other Article of the said Schedule. We must hold, therefore, that no second appeal lies and the appeal fails on that ground. Having further heard the learned Vakil for the appellant at some length, we are of opinion that it having been found that the plaintiff is a wilful tort-feasor, his suit on that ground should also fail.