CHANDRADAYA SEN Vs. BHAGABAN CHANDRA SEN

JUDGEMENT

(1.) This appeal arises out of a suit for contribution.

(2.) A preliminary objection has been taken to the hearing of the appeal on the ground that the suit is of a nature cognizable by the Court of Small Causes, and does not come within Article 41 of the Second Schedule of that Act. It is pointed out that the plaintiff s case was that he was a tenant under the defendant No. 1, and he sued to recover from the defendants the whole amount paid by him to save the property a portion of which was held by him as a tenant under the defendant No. 1; in other words, he denied any common liability with the defendants which is the foundation of a suit for contribution. That no doubt was the plaintiff s case, but there was an alternative case, viz., that if the plaintiff was held liable to contribute then a decree for proportionate amounts might be passed against the defendants.

(3.) The Court of first instance held that the plaintiff was a co-sharer and liable to contribute and on that footing gave a modified decree to the plaintiff. The plaintiff did not appeal against that decree. Under the circumstances we are of opinion that the suit is one for contribution by a sharer in joint property in respect of a payment made by him of money due from a co- sharer, and is exempted from the cognizance of Small Cause Courts under Article 41 of the Second Schedule of Act IX of 1887. The preliminary objection is accordingly overruled.