MAHARAJA SRIS CHANDRA NANDI OF KASIMBAZAR Vs. MAHAMMAD IBRAHIM MEAHMUTWALLI OF THE ESTATE OF NAJU MEAH

JUDGEMENT

(1.) This appeal is by the plaintiff. It arises in connection with a suit for contribution. The appellant deposited the arrears of revenue due on a certain Noabad Taluk in Order to save it from being sold. He claimed contribution on the basis of the shares owned by himself and the various, defendants. The calculation upon which the claim was based was set out in a statement attached to the plaint. There was a further prayer (Ga) to the effect that, if any modification became necessary, the suit might be decreed in accordance with the findings of the Court. The suit was contested by defendant 1 alone. He neither admitted nor denied the share which was attributed to him in the plaint. His case was that contribution should be levied not on the basis of the shares of the parties but upon the assets of the last settlement. Prima facie it is not very easy to see what this means. His case, however, purported to be based upon the decision of this Court in 1. Lalmohan Thakur V/s. Nanda Lal ( 12) 15 C.L.J. 191, From the judgments of the Courts below it appears that his contention is that the assets of the plots in the possession of the various co.sharers at the time of the last settlement should be estimated and the liability of each cosharer for the revenue should be in proportion to those assets. The Munsif gave the plaintiff a decree as claimed. Defendant 1 appealed. The Subordinate Judge accepted his contention and remanded the suit. The terms on which the Order of remand was made were as follows: The suit is sent back to the learned trial Court. The defendant appellant shall produce all the relevant khatians in which the lands of the Noabad taluk have been recorded within such time as may be fixed by the learned Court below and the learned Munsif shall assess the assets in the share of defendant 1 according to the principle which was the basis of fixing the, revenue. He shall determine the assets of all the lands in the khas possession of their undertenants of any degree according to the valuation detailed in Ex. F. The liability of defendants 1 to 9 shall bear the same ratio to the total liability of the taluk as the assets in the share of defendants 1 to 9 thus determined bear to the assets of the entire taluk mentioned in Ex. IT. The judgment and decree as against the non-appearing defendants shall stand.

(2.) Mr. Chowdhury appearing on behalf of the respondent (defendant l) did not attempt to support the form of this order. There was no prayer by either party for adducing further evidence. The only explanation of the Order is that the learned Judge was acting under the provisions of Order 41, Rule 27 (b), Civil P.C. Though he did not record his reasons, on the view which he took, further evidence was undoubtedly necessary. There was, however, no necessity for a remand. The learned Judge should have disposed of the matter himself. Furthermore, the entries in the khatians are merely presumed to be correct, and that presumption could be rebutted. It would, therefore, only be fair that both sides should be given an opportunity to bring such further evidence as they considered necessary. The practical question therefore is whether the lower appellate Court should be directed to proceed further in the matter or whether the decree of the Munsif should be restored. Two main points have been taken in support of the appeal: (1) that the view of the learned Munsif on the point in controversy between the parties is correct, and (2) that the appeal in the lower appellate Court is not in proper form on account of defect of parties. The dispute on the merits raises an important point with regard to the meaning and effect of the decision on which the respondent relies: but inasmuch as in my opinion the appeal succeeds on the other ground it is not necessary to decide it. As there is nothing to show that the other defendants were aware of this contention or what view they would have taken, if they had been so aware, I shall leave the matter open.

(3.) The other defendants did not dispute the plaintiff's method of calculation. The decree has been made against them on that basis and they have not appealed. If the present appeal succeeds there will be an inconsistent decree. There is, therefore, no question that they were proper parties to the appeal and, if an application had been made by the appellant to make them respondents in the lower appellate Court, it would have been bound to succeed. As however, no such application was made, it is now necessary to consider whether they I were necessary parties or, if they were not, whether the appellant should be given an opportunity to have them made parties. In imy judgment they were necessary parties. The learned Subordinate Judge overruled the appellant's contention on the ground that in a suit for contribution the decree has to be executed against each defendant or set of defendants separately. Hence the decree against the other defendants will not be affected by any modification made on appeal in the decree against defendant 1. This is precisely the reason why they are necessary parties. The point of view taken by the learned Subordinate Judge ignores the real substance of the matter. In the lower appellate Court defendant 1 as appellant should be regarded as though he were a plaintiff in Order to see whether he can obtain the relief claimed in the absence of the other defendants. On this point of view, it is necessary to examine the plaintiff's case made in the plaint. I have already set out the alternative reliefs which he prayed for. As he was satisfied with the decree made by the Munsif there was no reason why he should have appealed or filed a cross-objeetion against defendant 1. As soon however as defendant l appeals, it may become necessary for the plaintiff to press his alternative case in para (Ga) against the other defendants.