Mt. Saroor Fatima vs Chaudhury Sheikh Mohammad Safiuddin and Others

Varma, J.—This is an application u/s 25, Provincial Small Cause Courts Act, by defendant 4 in the suit. The plaintiffs claimed Rs. 25-2-5 from defendant 4, the present petitioner, Rs. 54-14-4 from opposite party, Nos. 11 and 12, Rs. 18-8-8 from No. 13 and Rs. 14-4-0 from defendant 14, on the allegation that they had paid their share of the revenue, but finding that the defendants were defaulting payment of their shares, the entire amount of the revenue was paid by them and therefore they claimed contribution.

Mr. Syed Ali Khan, appearing on behalf of the petitioner, urges that the suit was not cognizable by the Court of Small Causes in view of the provisions of Article 41, Schedule 2, Provincial Small Cause Courts Act. Article 41 runs as follows:

A suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a cosharer or by a manager of joint property or a member of an undivided family in respect of a demand made by him on account of the property or family.

Schedule 2 details the class of suits exempted from the cognizance of a Court of Small Causes, and from the wordings of Article 41, quoted above, it is quite clear that the present suit, being one for contribution by a sharer in joint property in respect of a payment made, was not maintainable in a Court of Small Causes. Mr. Rai Indra Bihari Saran, appearing on behalf of the opposite party has referred to the nature of the enjoyment of their respective rights by the cosharers. On this point it is better to refer to the plaint itself with regard to the position taken up by the plaintiffs. The very first paragraph of the plaint begins as follows:

The 16 annas mauza Karisath, pergana and thana Arrah, thana No, 327, tauzi No. 6871, constitutes the proprietary interest of the plaintiffs and the defendants. The names of the plaintiffs and defendants 1, 3 and 4 stand recorded in the Land Registration Department....

In para. 2 it is, however mentioned that the plaintiffs and the defendants have been in possession of their respective shares in the aforesaid tauzi, mentioned in Schedule A to the plaint. Paragraph 3 states:

The Government revenue of all the four kists in respect of the aforesaid tauzi, payable by the plaintiffs and defendants 1 to 5 according to their respective shares is mentioned in Schedule B below, which they are liable to pay accordingly. 5. It is therefore clear from the statements in the plaint that although their shares were divided the plaintiffs and the defendants were jointly liable for the Government revenue.

Mr. Rai Indra Bihari Saran relied chiefly upon the decision of this Court in Somar Ram Kahar and Others Vs. Babu Jagdeo Singh, . In that case the holding stood in the name of two persons. The plaintiff had purchased the share of one of them. The share purchased was a particular plot number with a fixed rental and the plaintiff had undertaken the responsibility to that extent. The landlord of the holding to the extent of 8 annas was the plaintiff himself and of the remaining 8 annas interest there were three other landlords.

It is therefore clear that in that case a specific plot was in the possession of the plaintiff. Rowland J., referred with approval to the decision in Srinivasa v. Sivakolundu (89) 12 Mad 849.

In the Madras case the plaintiffs had been granted some lands and the defendants some other lands. The plaintiffs were compelled to pay the assessment on both the lands. It was held that as the lands, the assessment of which had been paid by the plaintiffs were in the exclusive enjoyment of the defendants and the plaintiffs had no right to those lands, the property was not joint and the suit was not of the nature described in Article 41.

In the present case, upon the wordings of the plaint itself it is clear that the property as a whole is being referred to as a joint property although the parties'' shares are divided.

There was another line of argument attopted by Mr. Rai Indra Bihari Saran, and that was that in a suit for contribution the party who pays and claims contribution must also be liable to pay; but in the present case on the statement of the plaintiffs themselves they paid their own share first but when they heard that the whole tauzi was going to be sold for arrears of revenue they paid also the arrears dua an account of the share of the defendants.

Therefore, the amount paid on behalf of the defendants was not the amount due from the plaintiffs at the time when the payment was made. But at this stage we have to look at it from the point of view of liability. They were all liable to pay, the plaintiffs as well as the defendants, and non-payment of any portion of the revenue would have resulted in the sale of the property.

In my opinion the fact that the payments were made by instalments does not in any way affect the legal position. Looking at the case as a whole, I am of opinion that the suit was not cognizable by a Court of Small Causes.

I would therefore allow the application and order that the plaint be returned to be presented, if so advised, before the proper Court. There will be no order as to costs.