ADHAR CHANDRA MONDAL Vs. DOLGOBINDA DAS

JUDGEMENT

(1.) The plaintiff whose suit for contribution has been dismissed by the Subordinate Judge of Murshidabad has preferred this appeal. The facts on which his right of contribution is founded lie within a narrow compass and may be briefly stated: Estate No. 199 of the Murshidabad Collectorate belongs to a lady Daibakumari and to the Nawab Bahadoor of Murshidabad in the shares of 12 annas and 4 annas respectively. On 2 September, 1907 the Nawab Bahadoor granted a patni lease in respect of the 4 annas share of his said zemindari to Daibakumari, the proprietor of the 12 annas share. On 29 April 1905 Daibakumari granted a darpatni to Tarini Dhar in respect of 4 annas share of the zemindari. On 9 August 1905 Tarini Dhar created a sepatni in favour of Adhar Chandra Mandal, the plaintiff, of some mouzas comprised in his darpatni and he granted sepatni of the remaining mouzas to defendants 4 to 11. On 20th February 1923, Tarini sold the darpatni interest to Nirod Barani (defendant 2) as benamidar for her husband Dolgobinda who is defendant 1 to the suit. From 1332 B.S. onwards the darpatnidars used to pay the superior (patni) rent to the zemindar under the terms of the darpatni kabuliyat which regulate the rights between the patnidar and darpatnidar to which detailed reference will be made hereafter. The patni rents for 1335 to 1336 B.S. fell into arrears and proceedings under Regn. 8 of 1819 were taken to sell the property on 1 Baisakh. 1336. In order to avert the sale the plaintiff had to pay Rs. 1173-9-6. The Patni rents for 1336 and 1337 B.S. fell due and two other Astam proceedings were taken for the sale of the patni under the regulation, and in order to avoid the sale the plaintiff sepatnidar had to pay a further sum of Rs. 2,602-10-0 to the zemindar.

(2.) The plaintiff has sued for recovery of the aggregate sum of Rs. 3,77 6-3-6 and as neither the patnidar nor the darpatnidar paid the said sum on demand by the plaintiff, the plaintiff has impleaded in the suit both the patnidar and the darpatnidar and has sought for relief in the first instance against the darpatnidar (Nirod Barani, defendant 2, and her husband, defendant 1), and in the alternative against the patnidar's (Daibakumari s) adopted son who is defendant 3 to the suit. The case made in the plaint is that defendant 1 remained bound to pay the zamindar, the Nawab Bahadoor, the patni rent payable by Daibakumari Bibi according to the terms of the darpatni kabuliy at executed by Tarini Dhar and actually made amicable payments. The gist of the action is stated in para. 7 of the plaint where it is stated that defendants 1 and 2 were bound by law to pay the rental aggregating Rs. 3,776-3-6, and as they did not pay, the plaintiff was forced to pay alone the entire sum and hence the suit in which this appeal arises.

(3.) The defence of defendant 1 to the suit is that he had nothing to do with the patni which had been purchased by defendant 2 with her own money and that the suit against him should be dismissed and costs awarded. The defence of defendant 2 Nirod Barani is that she purchased the patni with her own money, that the payments made by plaintiffs were voluntary payments and that the defendant was not bound to pay the amount of patni rent to the zamindar, and further that the plaintiff was not bound and had no right in law to pay the amount under the Regulation. Defendant 3 stated in his defence that he was the adopted son of Daibakumari and pleaded that he had sold away, on the basis of a registered deed of sale, the 4 annas patni interest which he owned in the Mahals in Touzi No. 199 to defendant 6 Serowgi on 20 Magh 1335 to the full knowledge of the plaintiff, and that he was not liable. On these pleadings several issues were framed and arose for decision. It is necessary to state only two issues for the purposes of the present appeal. They are issues 5 and 6. Issue 5 is as follows : Were defendants 1 and 2 bound to pay the money which was paid by plaintiff? Issue 6 is in these terms: Can the plaintiff recover the amounts claimed? If so, from whom?