LAWS(PVC)-1937-3-2

SOMAR RAM KAHAR Vs. BABU JAGDEO SINGH

Decided On March 02, 1937
SOMAR RAM KAHAR Appellant
V/S
BABU JAGDEO SINGH Respondents

JUDGEMENT

(1.) This is an application under S. 25, Provincial Small Cause Courts Act, arising out of a suit to recover money paid by the plaintiff in satisfaction of a rent decree obtained by the landlord against petitioners who are the recorded tenants of a holding. The point for determination is whether the suit was cognizable by a Court of Small Causes or was exempt from the cognizance of such a Court by Art. 41, Schedule II, to the Provincial Small Cause Courts Act. The holding was Khata No. 131 having an area of 161 acres with a rent of Rs. 32-2-10 dams. It stood in the name of petitioners Nos. 1 and 2 who are uncle and nephew. The plaintiff bought from 1 petitioner, one plot bearing No. 1235 with an area 49 and rent Rs. 9-15 Order At the time of his purchase the plaintiff undertook responsibility for rent to this extent. The landlords of the holding are, to the extent of eight-annas the plaintiff himself and to the extent of the remaining eighth annas Hanif, Umar and Amir. The snare of rent payable to Hanif and Umar was Rs. 13-10-0 and of this the proportionate share payable by the defendants was Rs. 9-7-10 and by the plaintiff Rs. 4-2-10 dams. The decretal amount which was for the rent of four years came to Rs. 89-5-3 dams of which the plaintiff claimed to recover from the defendantsRs. 62-23 dams as their share, that is to say, he made no claim in respect of the remaining Rs. 27-3-0 virtually acknowledging that for this amount he himself was liable.

(2.) The suit, was at first decreed by the Munsif, but the defendants came to this Court in revision: and the matter was rare manded for a decision on the question whether Art. 41; Schedule II, applied to the facts of the case or not: vide judgment in Civil Revision No. 9j of 1935, Somar Ram V/s. Jagdeo Singh. The Munsif on this remand has come to a finding that Art. 41 does not apply because the suit is not really a suit for contribution but one for recovery of money paid by the plaintiff for the benefit of the defendants, and, therefore, he thinks that the Court had jurisdiction to try it as a Small Cause Court suit. Now from the facts that I have just stated, it is manifest that the Munsif was in error in saying that this was not a contribution suit. If the plaintiff had sought to recover the entire amount which he had paid in satisfaction of the rent decrees alleging that no part of the amount was payable by himself, then it might have been said, as the Munsif has said, that the suit was one to recover money paid on behalf of the defendants; but as the figures given show the plaintiff in substance admitted his own liability to the extent of Rs. 27, so it was clearly a contribution suit. But Art. 41 does not apply to every suit for contribution but only to a suit of the nature described in that Art. that is to say, for the purpose of this case, we have to see whether this is a suit by a sharer in joint property in respect of a payment made by him of money due from himself and another co-sharer of joint property. It was settled by the Full Bench decision of the Calcutta High Court in Krishno Kamini V/s. Gopi Mohan Ghose 15 C. 652, that a suit of the nature of a contribution suit might be cognizable in a Court of Small Causes; and in Biswa Nath Saha V/s. Naba Kumar 15 C. 713, it was further explained that suits for contribution which the Small Cause Court had no jurisdiction to try are those specified in Articles 41 and 42 or Art. 44.

(3.) The point, therefore, is whether the plaintiff is a co-sharer with the defendants in respect of the property to save which the payment was made. If he was, then the suit would not be cognizable by a Small Cause Court, as was held in Bhatoo Singh V/s. Ramoo 23 C. 189. In this case the plaintiff had a four annas share in a tenure and the defendant a twelve-annas share. The decree-holder of a decree against the tenure executed it against two-annas of the plaintiff's four-annas share and the plaintiff had to pay the entire amount of the decree. This suit was held to come within Art. 41. On the other hand, in Srinivasa V/s. Sivakolundy 12 M. 349, where the plaintiffs had been granted some lands and the defendants other lands and the plaintiffs were compelled to pay the assessment of both, it was held that as the lands, the assessment of which had been paid by the plaintiffs; were in the exclusive enjoyment of the defendant and the plaintiffs had no right to those lands, therefore, the property was not joint property and the suit was not a suit referred to in Art. 41. That is, in my opinion, a correct statement of the law. But it is pointed out that it was not followed by Chamier, J. in Fatima Bibi. Hamida Bibi 13 A.L.J. 452 : 28 Ind. Cas. 587 : A.I.R. 1915 All. 118. But this was a case in which there had been a single tenancy, and the parties were all descendants of the original tenants and that for purpose of convenience different parties were in the enjoyment of different plots of the holding Chamier, J. said: I cannot hold that the property has ceased to be joint property because for the sake of convenience each party cultivates separate fields.