1. The facts of this case are shortly as follows: The predecessor of one Bhogowan Chunder Roy granted a miras settlement of certain lands in Kaunnara to the plaintiff and certain of the defendants. The ekrar contained a covenant by the grantees of the settlement not to interfere with or disturb a ferry ghat belonging to the grantor. In breach of this covenant the grantees established a ferry ghat near that of the grantor, who thereupon brought an action against the grantees for breach of covenant and obtained a decree. In execution of his decree the grantor attached certain property of the plaintiff, who, to avoid the sale of his property, satisfied the decree by paying the damages and costs amounting to Rs. 352-14.
2. The plaintiff's share in the maliki rights under the settlement was four annas, and he admitted that he was liable for 1/4th of the Rs. 352-14, one of his co-sharers paid him Rs. 24 odd in respect of his 1a-2g-2k share, and the plaintiff brought this suit to recover the balance with interest from the surviving co-grantees, and the heirs and representatives of some who bad died, according to their respective shares. The defendants 1, 4, 5, 6, 7, 8, 9,10 and 13 did not appear. The defendants 3, 2, 11,12 and 14 jointly filed a written statement; the defendant 15 filed a separate written statement; the defendants 16, 17 and 18 jointly filed a written statement. The Munsiff dismissed the suit as against all the defendants, holding that they were all wrong-doers, and that no suit for contribution lay, and upon the merits he dismissed the suit as against the defendants 10, 12, 14 and 15; lie also held that the defendants 1, 2 and 3 were not liable for the costs of the appeals preferred to the lower Appellate Court and the High Court against the decree of the Munsif awarding damages to the grantor. On appeal the District Judge upheld the Munsif 's decision, and from his judgment the plaintiff has appealed to this Court.
3. The Munsif found 'that the plaintiff and defendants made a conspiracy and opened a ferry ghat in violation of an agreement made by them in favour of the plaintiff in the damage suit, and it is clear that they knew that they were doing an illegal or wrong act; for this reason I hold that this suit is not tenable.'
4. The District Judge says: 'The defendants in the former suit executed an agreement not to open a ferry in the neighbourhood of a certain existing ferry, and did so open a ferry in violation of the agreement; it seems to me that this constituted them wrong-doers in the sense that they knew or ought to have known that they were doing a wrong or unlawful act. I do not think it can be said at all that they were acting under a claim of right; however ill-founded, the act was a deliberate breach of the agreement into which they had entered.' I am of opinion that both the Courts below have erred in treating the plaintiff and defendants as wrong-doers, and in their application of the well-known legal maxim that no contribution lies amongst wrong-doers. When the Munsif speaks of a conspiracy the utmost that he can mean is that the plaintiff and defendants met together and deliberately agreed to break their covenant and establish a ferry ghat. This is not sufficient to constitute a conspiracy. To constitute a conspiracy there must be an agreement between two or more persons to do something either malum prohibitum or malum in se, or to do something which they are entitled to do only by illegal means. Suppose A, B, and C contract to deliver to D in Calcutta, on 1st January 1,000 maunds of wheat at a certain price, and between the date of the contract and the date of delivery wheat has gone up in price, and A, B, and C meet together and say 'we shall lose lot of money on this contract, let us only deliver 500 maunds and leave D to sue us for damages.' Could this be said to be a conspiracy? I think not; or suppose A and B agree to sell a piece of land to C and between the date of the contract and the date fixed for the completion of the purchase, A and B hear that the piece of land is likely to be taken up for a railway or other public work, and that therefore they will in all probability get a much better price than C had agreed to give them, and agree not to convey to C, but to leave him to bring his action for damages; this would not be conspiracy. Three cases were relied upon by the Munsif, viz., Sreeputty Roy v. Loharam Roy 7 W.R. 384; Ruttee Sirdar v. Sajoo Paramanick 11 B.L.R. 345 : 20 W.R. 236; and Suput Singh v. Imrit Tewari I.L.R. 5 Cal. 720; all these cases are cases of tort. Here the plaintiff and defendants were guilty only of a breach of contract. The leading case of Merryweather v. Nixon 2 Smith's L.C. 546 points out the distinction between contribution as between joint tort feasors and judgment against several defendants in an action of assumpsit. I am of opinion that the appeal should be allowed.
5. As the lower Appellate Court has not tried the case on the merits, it must be remanded to enable it to do so. Costs will abide the result.
6. I concur in the decision of my learned colleague. The Judge below finds and only finds that the defendants in the former suit violated their agreement, not that they had committed a wrong independently of contract. This finding does not prevent the present suit. See Power v. Hoerz 19 W.E. (Eng.) 916.