KAMAL KRISHNA, BARNIKYA Vs. PEARY MOHON SAHA

JUDGEMENT

(1.) THE facts of this case are a little complicated, but when they are clearly understood there should be no difficulty in deciding the case. As stated in the plaint, 3 Kanis 2 Karas of land, including 1 Kani 14. 5 Gandas, formed a Taluq standing in the names of Mati Bibiand Banu Bibi at an annual Jama of Rs. 17-8. THE predecessor of the plaintiffs took a settlement of the 1 Kara 14. 5 Gandas in Topa interest (which is an under-tenure) at an annual Jama of Rs. 9. That was in July 1854. Subsequently the Taluq was sold by auction and Becha Gazi purohased it. THE predecessor of the plaintiffs purchased a share of that Taluq, i.e., 1 Kani 14 Gandas, from Becha Gazi in November 1862. Defendants Nos. 2 to 4 are the heirs of Becha Gazi and defendant No. 5 is the transferee from defendants Nos. 2 to 4, THE proprietary rights having been sold, and bought by Kamal Krishna Banik defendant No. 1, he brought a suit for rent against the heirs of Becha Gazi and obtained a decree. He threatened to bring the whole Taluq to sale in execution of that decree and the plaintiffs in order to stop that sale, acting presumably under Section 171 of the Bengal Tenancy A.3, paid the amount into Court. THEy then filed this suit in order to set aside the deoree in Kamal Krishna Banik s suit on the ground of fraud and also to obtain refund of the amount which they had deposited in Court with costs, amounting in all to Rs. 146-10-3. THEy asked for a declaration of their title to the land, and they contended that they were in exclusive possession and denied the title of .defendants Nos. 2 to 5. THE Munsif found against the plaintiffs on the ground of fraud. He found in their favour on the ground of title, that is to ear, that they were really co tenants along with defendant No. 5 who had acquired the interest of defendants Nos. 2 to 4. He accordingly decreed the suit declaring the plaintiffs Taluka and Topa interest and giving the plaintiffs also a declaration that the decrees in question were not binding upon them. He disallowed their claim for refund and also refused (very properly) to go into the question of contribution by defendant No. 5. On appeal by the plaintiffs to the learned Subordinate Judge, the decree of the Munsif was varied and the plaintiffs were given a decree for the refund of the money which they had deposited in Court or for repayment of that sum by defendant No. 1 in case he had withdrawn it. Against that decree the present appeal is preferred. Both the Courts have found against the plaintiffs on the question of fraud. That finding is conclusive and neither side attempted to go behind it. THEre cannot be any doubt as to the title of the plaint-its as I have stated it. THE only question really before this Court is whether the plaintiffs are entitled to a refund by the defendant No. 1 of the money deposited by them. It is argued for the plaintiffs that the matter comes under Section 72 of the Contract Act or is so similar as to be governed by that section. Bat that argument overlooks the fact that the plaintiffs were undoubtedly tenants of the defendant No. 1 and were bound equally with defendants Nos. 2 to 5 to pay rent in respect of this Taluk. THEy cannot, therefore, be said to have made this deposit by mistake or under coercion or under stress of legal process. THEy obviously made the deposit under the provisions of Section 174 of the Bengal Tenancy Act. Whatever their rights may be as to contribution from their co- debtors, there can be no question that this money being due to the defendant No. 1 as landlord under the decree, though that decree was not binding against the plaintiffs, they were liable nevertheless for a share of that sum as rent, and liable moreover to the defendant No. 1. It would, therefore, be quite unjust that they should be allowed to deposit the amount in Court simply to s op the sale for the time being and then get their money back again. THE outstanding fact in the case, that they were tenants as well as defendants Nos. 2 to 5 and thus liable for the rent, was overlooked by the learned Pleader for the plaintiff in his argument, but once that fast is made clear, there is no doubt as to what the decision should be. THE appeal must, therefore, be allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with coats in thi3 Court and in the lower Appellate Court.