PANDAY BISAMBHARDEO NARAYAN SINGH Vs. HITNARAYAN SINGH

JUDGEMENT

(1.) These appeals arise out of a suit for contribution instituted by the respondent under the following circumstances: The defendants first party in the present action being proprietors of mahal Pipra Jaipal instituted a suit (Title Suit No. 106 of 1914) in the year 1914 for a declaration that they were entitled to raise boro (a kind of pady) in a jaikor known as Panchdah which according to them appertained to their mahal. Their case was that a small river known as the Gangi branched itself into five streamlets which were known by the name of Panchdah and although these streamlets flowed through different villages, the jaikar right in the Panchdah had been recognised as a separate estate and being assessed with a separate revenue had been attached to mahal Pipra Jaipal. Title Suit No. 106 of 1914 was resisted by the plaintiff and a number of other persons who had been impleaded as defendants, these being mostly persons through whose estates the river flowed. The subordinate Judge who tried the suit held that the plaintiffs in that suit (defendants first party of the present action) were entitled to the boro produce of 11 bighas only. From the decision of the Subordinate Judge two appeals were preferred to this Court, one (Appeal No. 35 of 1917) by the plaintiffs of Title Suit No. 106 (defendants in the present action) and the other (Appeal No. 31 of 1917) by the present plaintiff and certain other defendants of Suit No. 106. Appeal No. 35 was allowed with costs against the contesting respondents excepting one of the respondents who was held to be entitled to recover his costs from the plaintiffs (the defendants-first party in the present action) and the other appeal (Appeal No. 31 of 1917) was dismissed. Subsequently the defendants-first party executed their decree for costs against the present plaintiff alone and realized from him the sum of Rs. 2,732. The plaintiff thereupon brought the present suit for contribution against some of the defendants in Suit No. 106 of 1914 or their heirs whom he described as defendants-second party. These appeals are preferred by some of the defendants against whom the suit has been decreed. I shall first deal with Appeal No. 1207 which has been preferred by defendant 5 who was defendant 79 in the suit of 1914. Only two points have been urged in this appeal and these are: (1) that the present suit is not maintainable because the plaintiff has not joined certain necessary parties in the suit and (2) that a defendant cannot by suit enforce contribution for costs against a co-defendant.

(2.) The first point does not require any elaborate examination. The lower appellate Court has considered the point fully and has held that all the necessary parties have been joined in the suit as defendants. I find that certain persons were specifically named in the written statement filed by defendants 5, 6 and 7 as persons who ought to have been made defendants and in the grounds of appeal which have been filed in this Court it is reiterated that those persons were necessary parties to the suit. The trial Court on the basis of this contention disallowed the plaintiff's claim as to the costs of the original Court. In appeal however the learned District Judge admitted in evidence the order-sheet of the case and held that all the contesting defendants had been made parties and as no costs had been allowed against the non-appearing defendants, they were not necessary parties. It was not stated in this Court that any of the persons specifically named in the written statement were among the contesting defendants; but at a late stage of the argument it was suggested that one Kalika Prokash, an heir of original defendant 77, and defendant 115 of the suit of 1914 should have been impleaded in this action. This argument has been fully met by the learned Advocate for the respondent on its merit; but the short ground on which it may be disposed of is that these names should have been mentioned in the Court below and new facts cannot be investigated in second appeal.

(3.) The second point raises a difficult question of law. It is now a well recognized principle that ordinarily there is no right of contribution between joint tort-feasors and relying upon this rule it has been held in some cases that a defendant cannot realise from a co-defendant his quota of costs for which both the defendants were held jointly liable. In Dearsly V/s. Middlewick (1881) 18 Ch D 236, Fry, J., observed: I shall follow the dictum which has been cited to me from the Court of Appeal in Real and Personal Advance Co. V/s. McCarthy (1881) 18 Ch D 362 and hold that la defendant cannot proceed against a co-defendant for contribution in respect of costs to which both are equally liable.