KALISARAN CHAKRABARTY Vs. BIJOY GOBINDO CHAKRABARTY

JUDGEMENT

(1.) THIS appeal arises out of a suit for contribution. The plaintiff in the suit is a co-sharer of the defendants. Hiscase was that the superior landlord sued him and the defendants for rent for the years 1319 to 1322 and obtained a decree and he satisfied the decree. He, therefore, sued the defendants who were his co-sharers for contribution. The main defence was that the defendants had been kept out of possession of their share of the property during the period covered by the rent-decree which the plaintiff had satisfied and hence they were not liable to contribution. The primary Court decreed the plaintiff's suit. On appeal, the learned District Judge found that so far as regards the years 1319 and 1320, the plaintiff had kept the defendants out of possession and so he was not entitled to any contribution. We decreed the defendant's appeal. Against this decision the plaintiff appeals to this Court and there is a cross-objection on behalf of the defendants with regard to the rent of the year 1321--the defendants contending that they were not in possession of the property during the year 1321 also. The plaintiff would seem to argue that as the defendants were in exclusive possession of some other joint property it is really a question of accounts between the parties and that, therefore, the plaintiff's suit for the years 1319 and 1320 should not be dismissed but that accounts should be taken. He further argued that on the facts fcund he was entitled to a decree for the years 1319 and 1320. With regard to the first contention advanced on behalf of the plaintiff-appellant the simple answer is that this was not the plaintiff's case. His case was that the defendants were in possession of the property during the years for which he had paid the rent, and he did not suggest in his plaint that he had been kept out of possession of any other portion of the joint property and that hence it was a question of accounts. With regard to the last contention that the defendants being admittedly co-sharers they must contribute, the point has been decided in the case of Swarnamoyee Debi V/s. Hari Das Ray 6 C.W.N. 903 where it was held that where a co-sharer was kept out of possession wrongly by another co-sharer a suit for contribution at the instance of the latter for rent paid by him during the period of dispossession did not lie against the former. That this is so in the present case is obvious. The plaintiff has apparently enjoyed the entire profits of the land during the years for which he seeks contribution from the defendants and obviously he cannot be entitled to receive any contribution from the defendants for any rent that he might have paid. The appeal of the plaintiff is, therefore, dismissed with costs. There remains then the cross-objection of the defendants regarding the year 1321. Whether the defendants were or were not in possession during the year 1321 is, no doubt, a question of fact, and possibly the finding of the learned District Judge might be clearer on the point than it is. But, after all, it is a judgment of affirmance. Moreover, the defendants and the plaintiff being co-sharers, it was clearly for the defendants to show that they had been kept out of possession during the year 1321, the finding of the District Judge amounts to this that they have failed to prove this. That being so, the cross-objaction is also dismissed with costs. Mukerji, J. I agree.