ANADA KISHORE CHOUDHURY Vs. PANCHU KAPALI

JUDGEMENT

(1.) This is an appeal under Section 15, Letters Patent, against a judgment of my learned brother Bartley, J.

(2.) It appears that the Maharaja of Tippera sued for khas possession Of certain lands impleading as defendants in the suit, two sets of persons, the first set claiming a right as superior landlords or talukdars and the second set, the tenants claiming to hold under them. The suit was decreed with costs against the landlords and certain tenants who had joined in contesting. It appears, however, that the costs although they were leviable from the landlords and the contesting tenants jointly and severally, were, as a matter of fact, realized from two of the landlords only. These landlords who are the appellants before us, brought a suit for contribution against the other defendants, vie, the other landlords and tenants who had contested with them, the original suit. The Munsif dismissed the suit as against the tenants, being of opinion that they were not liable to contribute. He, however, decreed the suit against the landlord defendants. On appeal by the plaintiffs landlords, the learned District Judge reversed the decision of the Munsif so far as he dismissed the claim of the plaintiff for contribution as against the tenant defendants. The effect of the Appellate Court's decree was that the plaintiffs suit for contribution was decreed, against all the defendants. Against this decision an appeal was taken to this Court and heard by Bartley, J , who reversed the decision of the District Judge and restored that of the Munsif. Against this judgment the present appeal has been preferred under the Letters Patent.

(3.) It is contended on behalf of the appellants that the reasoning on which the learned Judge of this Court has rested his decision, cannot be sustained. The learned Judge of this Court has relied on a decision in the case of Kisto Chandra V/s. Wise 14 WR 70, as an authority for the proposition that a joint decree itself creates no privity or obligation as between co-defendants. He has also relied on two decisions cf the Allahabad High Court in support of the proposition that there can be no right to contribution as between different sets of defendants, where opposite or exclusive defences are set up: Fakire V/s. Tasadduq Hossain 19 A 462 : AWN 1897, 107 and Nand Lal Singh V/s. Beni Madho Singh 47 Ind. Cas. 980 : AIR 1918 All. 328, 40 A 672 16 ALJ 689. He has further referred to the case of Sreepati Roy V/s. Loharam. 7 WR 384 : BLR Sup. Vol. 687, and has relied on certain observations of Sir Barnes Peacock to the effect that if the defendants were acting as the servants of the plaintiff or under his directions as he was the person who claimed the right and derived the benefit, he was the person who should pay all the damages. Applying the principles laid down in the cases referred to above, the learned Judge has arrived at the conclusion that as the joint decree created no privity between the landlords and the tenants who were the cc-defendants, and there having been no contract to reimburse the landlords, the suit for contribution against the, tenants, must fail. It is argued on behalf of the appellants that the principles laid down in those cases cannot apply to the facts of the present case. Here the tenants did not set up any opposite or exclusive defence in relation to the defence set up by the landlords under whom they claim the tenancy. It seems to us that the defence which was set up by the tenant-defenants was substantially the same as the defence set up by the landlord defendants. The tenants were equally interested in defending the title of their landlords in the suit brought by the Maharaja of Tipperah. It is, further, to be noticed that the decision in the Weekly Reporter case, Kisto Chandra V/s. Wise 14 WR 70 which is referred to, was a decision which was given prior to the enactment of the Contract Act of 1872. It seems to us that the matter with relation to contribution must now depend on the two statutory provisions contained in the Contract Act, viz., Secs.69 and 70 of the Act. Section 69 runs as follows: A person who is interested in the payment of money which another is bound by law to pay and who, therefore, pays it, ia entitled to be reimbursed by the other.