SAROJ RANJAN SINHA Vs. JOY DURGA DASSI

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for contribution which was instituted on the 6 December, 1921. The parties are co-sharers in a patni taluq and the suit was in respect of a sum of Rs. 3,440 paid by the plaintiff to the landlord of the tenure on the 8 December 1918. On this date the rent of the tenure was in arrears and in the previous month the latter had been sold under the provision of Regulation VIII of 1819. The learned Subordinate Judge who tried the suit has found that this payment was not, as the plaintiff alleged, a payment of arrears of rent made on behalf of herself and the defendants but a payment made in fraud of the defendants in order to induce the landlord to resettle the tenure with herself alone. On this find-ling the plaintiff could not recover contribution, since the payment was not "lawfully" made within the meaning of Section 70 of the Contract Act; and the learned Subordinate Judge rightly dismissed the suit. This was on the 26 August 1922.

(2.) An appeal was taken to the District Judge. By the time that it was heard the sale of the patni tenure had been set aside and the landlord has sued the parities for arrears of its rent. In so doing he gave credit for the Rs. 8,440 just now referred to and other sums, claiming the balance of rent due. The suit was decreed some time in the end of 1922 on an admission by the present parties. Mention has been made by the learned advocate for the respondent of a petition of compromise put in by them but it is not upon the record. This transaction changed, in the opinion of the learned District Judge, the aspect of the case altogether and on the footing that the landlord: gave credit for the said sum of Rs. 3,440 paid by Joy Durga and with the consent of all the parties a decree for the balance was passed he has allowed the appeal and given a decree to the plaintiff.

(3.) The transaction can however, have no bearing on the nature of the payment of the 8th December 1918, which was the cause of action upon which the suit was founded; and the findings of the trial Court as to that nature have not been disturbed. The learned Judge has, in effect, then, given the plaintiff a decree upon a cause of action which arose only after the suit had been determined and was totally different from that pleaded. I do not think that the circumstance justified such an unusual course; and for this reason we set aside the judgment and decree of the District Judge and restore that of the Subordinate Judge. The appellants will get their costs throughout. Graham, J.