1. These are two second appeals by a defendant. The respondent is admittedly related to the appellant as an uncle. In 1934 a grant of nayabad land was made to the parties; but they did not reclaim it, and accordingly in September 1936 the patwari made a report recommending that the land be resumed. Notice was issued to the parties and they appeared and asked for an extension of time; and this was granted. The respondent's case is that he thereafter reclaim-ed the land at a cost of Rs. 273 and he instituted this suit for recovery of the appellant's half share of this amount together with interest. The defence was that a considerable area of the land granted to the parties was reclaimed by an outsider, a lady named Miss Lucy Wheeler, who was ultimately compelled by the Court to vacate the land when proceedings were taken against her under Section 145, Criminal P. C. It was further alleged in the written statement that the appellant had himself reclaimed such area of the land as was in his possession and that the respondent has no cause of action.
2. The respondent's case was that he had had the reclamation done on contract by a man named Sobha Ram--who is admittedly his partner in cultivation. Receipts of payment were produced, but these were not accepted as genuine by the trial Court. That Court further held--largely on the basis of local inspection --that the respondent could not possibly have incurred an expense of more than Rs. 100 on the job. The suit was accordingly decreed for Rs. 50 only, the claim for interest being disallowed. Both parties went in appeal and the lower appellate Court has decreed the respondent's suit in its entirety. In the opinion of the learned Judge it has not been proved that Miss Lucy Wheeler reclaimed any portion of the land. The learned Judge sees no reason to doubt the veracity of the respondent's witnesses and he has accepted as genuine the receipts which purport to have been given by the contractor, Sobha Ram. He therefore finds that the respondent did actually pay the sum of Rs. 273 and he holds that, this payment being proved, it follows as a matter of law that the appellant is liable to contribute to the extent of moiety. The learned Judge says:
The point is that unless the defendant can show by cogent and reliable evidence that the agreement and the receipts are fictitious, which he has not done, the plaintiff is entitled to recover half the amount from him.
3. Learned Counsel for the defendant-appellant pleads that it was the duty of the learned Judge to ascertain what was the proper and reasonable amount to pay for the work done; he says--and I think there is force in his contention -- that if, for reasons known to himself, the respondent chose to pay this contractor at an extravagant rate, the appellant cannot in law be held liable for more than a half share of what would have been a reasonable payment. In this connexion learned Counsel has referred to Section 70, Contract Act. Learned Counsel for the respondent objects that this appeal is incompetent under Section 102, Civil P. C., and the question for decision is whether the suit is exempted from the cognisance of a Court of Small Causes under Article 41, Provincial Small Cause Courts Act. The kind of suit which is exempted under that article is
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 payment made by him on account of the property or family.
4. It will be seen that this article is divided into two portions. Learned Counsel for the respondent contends that the first portion has no application inasmuch as no money was due from the cosharer at the time when payment was made to the contractor; and, in this connexion, he has referred me to Fischer v. Turner ('92) 15 Mad. 155 and Mavula Animal v. Mavula Maracoir ('07) 30 Mad. 212. In the last mentioned case at p. 213 the Court observes:
When the payment was made, in respect of which contribution was claimed in the suit, there was no debt due from the cosharer. The debt becomes due by virtue of the payment.
5. In that case the plaintiff had made improvements in a tope belonging to himself and the defendants. In the earlier case the plaintiff had repaired a channel which was the property of the parties. A different view appears to have been taken by the Lahore High Court in Labh Singh v. Qaim Din ('31) 18 A.I.R. 1931 Lah. 748. In that case the petitioner obtained a decree upon a debt owned jointly by himself and another & person and in execution of that decree a shop was attached as belonging to the judgment-debtor. A third person successfully objected under Order 21, Rule 58, Civil P. C. The petitioner then sued for a declaration under Order 21, Rule 63, but failed and had to pay the costs. He then sued the co-owner of the debt for contribution to the extent of half the expenses. A learned Judge of the High Court held that, having regard to the averments in the plaint--which, however, are not set out in the reported judgment--the suit fell within Article 41. I agree with the view taken by the Madras High Court and in the case before me I am of opinion that, having regard to the nature of the claim, the suit was not 'a suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a cosharer.'
6. We now have to see whether the second portion of Article 41 is applicable; that is to say, whether this was a suit by a manager of joint property or a member of an undivided family in respect of a payment by him on account of the property or family. The respondent has nowhere stated in his plaint that he was the manager of the property; and the mere fact that he performed an act of management by entering into a contract for the reclamation of the land would not constitute him a manager within the meaning of the article. The word 'manager' means a recognized manager, not a manager ad hoc. Nor do we know whether the parties were members of an undivided family. The respondent has stated in the plaint that he and the appellant are related as uncle and nephew, but we do not know how near or how distant this relationship is. Learned Counsel for the appellant relies upon the ordinary presumption of Hindu law; but I do not think that this presumption can arise in the absence of any allegation and when the exact relationship is not known. It was held in Ant Ram v. Mithan Lal ('18) 5 A.I.R. 1918 All. 167 that a litigant wishing to come under this article must clearly establish that the suit in every respect conforms precisely with the definition. My conclusion is that these appeals are barred under Section 102, Civil P. C. Learned Counsel for the appellant now asks me to treat these appeals as applications in revision; but the mere fact of the learned Judge having decided the appeals upon a wrong principle will not justify interference in revision. In the result I dismiss these appeals with costs. Permission to appeal under the Letters Patent is refused.