JOY KRISHNA HAZRA Vs. KALI KRISHNA HAZRA

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Subordinate Judge of Birbhum affirming on appeal the judgment and decree of the learned Munsif of Bolpur in a suit for contribution. The facts out of which this suit arose may be shortly stated thus: Durgadas Kundu and others are eight annas cosharer landlords of a certain holding the original rental of which was Rs. 8-14-3 but which was subsequently enhanced to Rs. 10-2-3 by proceedings under Section 105, Ben. Ten. Act. The plaintiff and defendants 1 to 3 are cosharer tenants of that holding. The landlords obtained an ex parte decree against the plaintiffs and defendants 1 to 3 for arrears of rent for the period from 1335 to 1338 B. S. In execution of that decree the decree-holder attached certain properties of the plaintiff and in order to save those properties from sale the plaintiff deposited the decretal dues and costs amounting to Rs. 35- 4-6. The plaintiff had also to incur costs amounting to 10 annas 3 pies in connexion with payment of the dues into Court.

(2.) In the course of the plaintiff's suit for contribution against defendants 1 to 3, it transpired that the plaintiff and defendants 2 and 3 were brothers, and that they possessed equally a fractional jama, Rs. 2-10-0 out of a total jama of Rs. 8-14.3 and that the balance of the jama to the extent of Rs. 6-4.3 was held by defendant 1. Defendants 4, 5 and 6 were subsequently impleaded. Defendant 4 was the purchaser of a portion of the jama held by defendant 1. Upon the allegation that defendant 4 had paid to defendants 5 and 6 the rent due from her in respect of her share for the year 1338 B. S. the plaintiff claimed that defendants 5 and 6 were liable to refund the amount received by them from defendant 4. In both Courts below the claim of the plaintiff as against defendant 1 has been allowed and a decree for the sum of Rs. 24 passed by the Munsif against defendant 1 has been affirmed by the lower Appellate Court. The plaintiff's claim as against the other defendants was negatived by both the Courts below. In this appeal it has been contended that defendants 5 and 6 should be compelled to reimburse the plaintiff to the extent of the rent received by them from defendant 4 in respect of the year 1338 B. S. As against defendant 4, it is contended that as she is the purchaser of a portion of the jama held by defendant 1 she also is liable to contribute. These contentions may be dealt with at the outset. In my judgment the claim of the plaintiff to be reimbursed by defendants 5 and 6 is not maintainable in a suit for contribution. These defendants are the landlords who, it is alleged, have been paid twice over a portion of the rent payable in respect of the entire jama. Clearly, there is no mutuality between themselves on the one hand and the plaintiff and the other defendants on the other, and it is not possible to say that they come within the provisions of Section 69, Contract Act, which is in these terms: A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it, is entitled to be reimbursed by the other.

(3.) The ex parte decree obtained by defendants 5 and 6 for the rent of this jama has not been appealed against. It is clear that whatever be the remedy the plaintiff may have against these defendants, it cannot be by way of a suit for contribution. As regards defendant 4, it was not disputed in these proceedings that she had paid that portion of rent due from her to defendants 5 and 6. Her interest in the jama was separately recognized by the landlords and she was not a defendant in the suit for rent against the plaintiff and defendants 1 to 3. Having discharged her liability in respect of that portion of the jama which .appertained to herself it cannot be contended that at the time when the plaintiff deposited the decretal dues and costs, she was a person who, within the meaning of Section 69, Contract Act, was bound by law to pay what the plaintiff was then paying. To hold otherwise would amount to declaring, as the Courts below have pointed out, that she was liable to pay the amount of her rent twice over. That branch of the decision of the Courts below which has been most seriously challenged in this appeal is the determination of the plaintiff's claim as against defendants 2 and 3. "Upon certain materials which were placed before the learned Munsif, he found as a fact that there had been a partition of the joint properties of the plaintiff and defendants 2 and 3 as a result of which the fractional jama of Rs. 2-10-0 fell to the share of the plaintiff and that the plaintiff was after the partition in exclusive possession thereof.