1. This is a reference made Under Order 46, Rule 7, Civil P.C, by the learned District Judge of Birbhum. It refers to a suit filed before the Sadar Munsif of Suri. It appears that certain patnidars had filed a rent suit and got a decree against the plaintiff and his brothers as well as . others. The plaintiff's contention in the present suit is that he had no possession in any of the lands of the jote in question, because he and his brothers had separated a year before the period for which the rent was claimed and the joint properties had been divided, as a result of which the plaintiff ceased to have any interest in the jote and his brothers were liable for the entire rent. The patnidars however executed the rent decree against the plaintiff and as they were about to attach his moveable properties, he had perforce to satisfy the decree. Accordingly he has brought this suit for reimbursement of the amount with costs which he had to pay in respect of the patnidar's decree. The Munsif however decided that it was a suit for contribution and not reimbursement and therefore in accordance with the provisions of Article 41, Schedule 2, Provincial Small Cause Courts Act., 1887, he was not competent to try it and he directed the plaint to be returned in order that it might be filed in the proper Court. Hence this Reference.
2. The learned District Judge is of opinion that the Munsif was wrong in this view and that the present suit is a suit not for contribution, bub for reimbursement and therefore the article referred to does not apply. He says, quite rightly, that the question must be decided upon the basis of the allegations made in the plaint. The contention of the plaintiff is not that the defendants must bear some part of the sum which he had to pay but that he was not liable for any part of that sum and that the defendants were liable for the whole of it. Such a case is not one for con tribution. The point has been clearly stated and decided in the case of Satya Bhusan v. Krishna Kali AIR 1915 Cal 278, in which the learned Judges said that 'contribution' signifies payment by each of the parties interested of his share in any common liability . . . Mutuality is thus the test of contribution. The suit as framed, cannot be deemed a suit for contribution; it was really a suit by the , plaintiff for recovery of the money paid by him for the benefit of the defendants. The facts of that case are very similar to those in the present case, and I am satisfied that the reasoning adopted by the learned Judges is applicable to the present case and that the decision of the District Judge is correct. The consequence is that the order of the learned Munsif must be set aside and the suit restored to the Small Cause Court file.
Nasim Ali, J.
3. I agree.