- (1.)This is an appeal in a suit for contribution in which the learned; Judge of the lower appellate Court has held that the plaintiff has not made out his case. The facts are that the head landlord sued both the plaintiff and defendant jointly for a rental of Rs. 99 in respect of a particular holding. The present defendant did not defend that suit and the landlord got a decree and the whole amount of the decretal money was paid by the present plaintiff who is now the appellant before us. The Judge of the lower appellate Court has dismissed the suit of the plaintiff on the ground that the plaintiff did not produce any rent receipts and did not establish the fact that Rs. 81 only represented his liability to the, head landlord, and the lower appellate Court has found that the defendant No. 1 is nut liable at all. We think that the Judge of the lower appellate Court did not properly consider the effect of the rent decree obtained by the head landlord. The present defendant No. 1 did not defend the landlord's action, and the circumstance that he submitted to a judgment jointly with the present plaintiff seems to me to be the very strongest; evidence that in fact he was jointly liable for, the rent with the present plaintiff. If the case, as presented now, is true, namely, that he had nothing to do with the holding in question and was not liable, for any rent thereof, then, I think he would certainly have set up that case in answer to the head landlord's action. The fact that the defendant submitted to this judgment seems to me to establish that he was in fact jointly liable with the plaintiff. That being so it becomes a question as to the amount for which the respective parties are liable. That was sought to be proved in the lower Court by the production of the Khatian. The Judge of the appellate Court has discarded the Khatian as being incorrect. We have perused the agreement by which, it is said, the parties agreed that it was incorrect. It says nothing whatever about the rent set forth in the Khatian as being incorrect, and it is, in our opinion, an agreement which appears to be this, namely, an arrangement by which it was agreed that the persons who signed the agreement should consent to each of them cultivating a particular plot out of the land as his own. There is no mention of the rent for which they are jointly responsible and there is no suggestion that they should, pay the rent separately.
(2.)We, therefore, set aside the decree of the lower appellate Court and remand the case to that Court in order that it may determine in what proportions the present plaintiff and defendants are liable to pay the rent for the holding in question to the head landlord. When the Judge has ascertained the correct amount, judgment will be given accordingly.
(3.)The appellant is entitled to the costs in this appeal.