PT GOBARDHAN Vs. PTPREM BALLABH

JUDGEMENT

(1.) These are two second appeals by a defendant. The respondent is admittedly related to the appellant as an uncle. In 1934 a grant of nayabad land was made to the parties; but they did not reclaim it, and accordingly in September 1936 the patwari made a report recommending that the land be resumed. Notice was issued to the parties and they appeared and asked for an extension of time; and this was granted. The respondent's case is that he thereafter reclaim-ed the land at a cost of Rs. 273 and he instituted this suit for recovery of the appellant's half share of this amount together with interest. The defence was that a considerable area of the land granted to the parties was reclaimed by an outsider, a lady named Miss Lucy Wheeler, who was ultimately compelled by the Court to vacate the land when proceedings were taken against her under Section 145, Criminal P. C. It was further alleged in the written statement that the appellant had himself reclaimed such area of the land as was in his possession and that the respondent has no cause of action.

(2.) The respondent's case was that he had had the reclamation done on contract by a man named Sobha Ram--who is admittedly his partner in cultivation. Receipts of payment were produced, but these were not accepted as genuine by the trial Court. That Court further held--largely on the basis of local inspection -- that the respondent could not possibly have incurred an expense of more than Rs. 100 on the job. The suit was accordingly decreed for Rs. 50 only, the claim for interest being disallowed. Both parties went in appeal and the lower appellate Court has decreed the respondent's suit in its entirety. In the opinion of the learned Judge it has not been proved that Miss Lucy Wheeler reclaimed any portion of the land. The learned Judge sees no reason to doubt the veracity of the respondent's witnesses and he has accepted as genuine the receipts which purport to have been given by the contractor, Sobha Ram. He therefore finds that the respondent did actually pay the sum of Rs. 273 and he holds that, this payment being proved, it follows as a matter of law that the appellant is liable to contribute to the extent of moiety. The learned Judge says: The point is that unless the defendant can show by cogent and reliable evidence that the agreement and the receipts are fictitious, which he has not done, the plaintiff is entitled to recover half the amount from him.

(3.) Learned Counsel for the defendant-appellant pleads that it was the duty of the learned Judge to ascertain what was the proper and reasonable amount to pay for the work done; he says--and I think there is force in his contention -- that if, for reasons known to himself, the respondent chose to pay this contractor at an extravagant rate, the appellant cannot in law be held liable for more than a half share of what would have been a reasonable payment. In this connexion learned Counsel has referred to Section 70, Contract Act. Learned Counsel for the respondent objects that this appeal is incompetent under Section 102, Civil P. C., and the question for decision is whether the suit is exempted from the cognisance of a Court of Small Causes under Art. 41, Provincial Small Cause Courts Act. The kind of suit which is exempted under that article is a suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a cosharer, or by a manager of joint property or a member of an undivided family in respect of a payment made by him on account of the property or family.