JUDGMENT
1. This appeal arises onto a suit for contribution. The findings of the Subordinate Judge are all in favour of the plaintiffs, with the one exception that he considered that he was unable to pass; decree in the plaintiffs’ favour by reason o the difficulty in determining the share in which the several defendants should con tribute. The result has been that the suit has been dismissed. From this decree the present appeal has been preferred.
2. The case stated broadly is this. The plaintiffs and the defendants in the present suit may be described in general terms as the zemindars of Amgram. There was an adjoining estate which belonged to the zemindars of Narail. There was a contest between these two sets of zemindars as to the ownership of a considerable area of marshy land, each claiming it to be within their zemindari. This led to proceedings under Section 145 of the Criminal Procedure Code in which it was determined that possession as to a part was with the zemindars of Narail, and as to the rest with the zemindars of Amgram. The zemindars of Narail were dissatisfied with this result and they brought a Suit No. 29 of 1887 whereby they claimed possession and wasilat. There was a decree passed in their favour for possession of 800 bighas in round numbers. An appeal was preferred by some of the zemindars of Amgram, with the result that the area awarded to the plaintiffs was materially diminished and as a result the amount of mesne profits was largely decreased. Still a considerable sum was due by way of mesne profits and this the zemindars of Narail took steps to realize in execution of. the decree, with the result that property belonging to the present plaintiffs was attached and sold. This led to an application under Section 310A, and the sale was set aside. In the end the decree in favour of the zemindars of Narail was satisfied. The present plaintiffs, being some of the zemindars of Amgram, claim that they have paid off the whole of the decretal amount and are thus entitled to contribution from those of their co-sharer zemindars of Amgram who were defendants to Suit No. 29 of 1887. The decree for mesne profits in no way discriminates between the defendants, it treats them all as on the same footing, and that no doubt accounts for the fact that by the plaint in this suit the plaintiffs sought a contribution from the defendants equally. Had they been able to substantiate this claim, it would have diminished the complexity of this litigation, but it has been stated before us by Counsel for the plaintiffs that in the circumstances he does not think he would be justified in seeking for contribution except in accordance with the shares of the defendants in the zemindari of Amgram. This view is accepted by the respondents if there is any liability at all, and it thus becomes unnecessary for us to consider whether the plaintiffs could have claimed an equal contribution, so that for the purposes of this judgment I will assume that if the plaintiffs are entitled to recover anything from the defendants it will be upon the basis of a contribution by the defendants proportionate to their shares in the zemindari of Amgram.
3. The findings of fact by the trial Judge have not been assailed before us, with one exception to which I will later allude. It has, however, been suggested that the defendants to Suit No. 29 of 1887 were wrongdoers and that, therefore, no right to contribution exists. That, I think, is an argument which we need not consider seriously, for even if the strict law of Merryweather v. Nixan (1799) 8 T.R. 186 : 16 R.R. 810 : 101 Eng. Rep. 337 : 2 Sm.L.C. 569 were applicable in India a point on which I would desire to reserve my opinion–it certainly would not be applicable in the circumstances of this case, because it cannot be said on the facts on the record, that the defendants to Suit No. 29 of 1887 were wilful tort-feasors. But the principal defence urged before us is that the plaintiffs ought not to be given relief in this case because they really were the only wrongdoers in the sense that they alone were in possession of the land in respect of which mesne profits were awarded to the zemindars of Narail. It is on this point that the respondents quarrel with the finding of the Court below. The principle of contribution as applicable in a case like the present is well established and the leading case is Dering v. Winchelsea (Earl) (1787) 1 Cox 318 : 2 Bos. & P. 270 : 1 R.R. 41 : 29 Eng. Rep. 1184. There, as here, it was argued that the author of the loss could not have the benefit of a contribution. But the Lord Chief Baron, while repelling the applicability of the argument to the circumstances of that case, went on to say that cases, indeed, might be put in which the proposition would be true,” and in illustration of this he said: If a contribution were demanded from a ship and cargo for goods thrown overboard to save the ship, if the plaintiff had actually bored a hole in the ship, he would in that case be certainly the author of the loss, and would not be entitled to any contribution.” That illustration is useful as an indication of what might furnish an answer to a plaintiff seeking contribution, when it is urged that he was disentitled by reason of his responsibility for the mischief that had occurred. But in this case notwithstanding the argument that has been addressed to us, I am unable to say that this is made out. Prima facien person in the position of the plaintiffs in this suit has a right to contribution and the particular plea now under consideration is of such a special nature and requires such special consideration that it should be distinctly pleaded and made the subject of a distinct issue. That has not been done, and though there are expressions in the judgment of the learned Subordinate Judge which look as though the point had been discussed,, it was in connection with a contention distinct from this plea. Moreover, it is to be noticed that the learned Judge’s view of the facts was against the contention now advanced on behalf of the defendants.
4. The position then is this. So far as the evidence goes, the learned Subordinate Judge who had every opportunity of estimating the value of the testimony given before him, considered that it did not prove that the plaintiffs alone were in possession of the land in dispute in the former litigation. The evidence has also been brought to our notice and I too am unable to regard that evidence as sufficient to establish the special plea that has been advanced. And I may further remark that it is a plea that may involve a very complex inquiry. Thus, even if it did appear that the plaintiffs were in possession of the greater part of this disputed land, it still might have to be considered whether this was not by reason of some understanding under which the defendants were in possession of an equivalent portion of land outside the disputed area as forming part of the zemindari of Amgram.
5. I think I have shown enough to make it evident that we ought not to and we cannot properly, on the materials at present before us, give effect to this plea. Moreover, it has to be noticed that this plea is barely consistent with the decree passed in suit No. 29 of 1887 which treated all the defend-ants against whom it was passed as equally responsible for the wasilat. The theory of that decree, as I understand it, was this. The litigation was treated as one in effect between the zemindars of Narail on the one side and the zemindars of Amgram on the other and it was the zemindars of Amgram who were treated as responsible as being zemindars of Amgram. The reasonable meaning of such decree would be, as decided by the Privy Council in Jotindra Mohan Lahiri v. Guru Prosumio Lahiri 8 C.W.N. 625 : 31 C. 597 (P.C.) : 31 I.A. 94, that the estate was to be made liable and it is this that justifies the view of the proportionate liability taken by both sides in this case. If, therefore, there be a liability it must be a liability in proportion to the interests of the defendants in the zemindari of Amgram. We hold, therefore, that the plaintiffs are entitled to succeed in this suit and that the defendants are liable to the extent of their several shares. The measure of that liability in the case of each defendant will be a proportionate part of the decretal amount in Suit No. 29 of 1887 together with interest on that sum from the time of payment up to the institution of this suit. The amount of that decree is a matter in dispute between the parties. It is one on which they certainly should have no difficulty in settling and for that purpose the learned Vakils on both sides have agreed they will meet and will then give us the requisite figure.
6. There still remains the question of proportionate shares of the several defendants. That, no doubt, is a matter of some little difficulty unless the defendants will cooperate. The defendants must know what their shares are, and the decree of the Court cannot be defeated because they may think fit to create a difficulty in the way of ascertaining those shares.
7. We do not propose to send the case down ‘ as we intend to pass a decree in this Court for the amount payable by each defendant to the extent of his share and we only have to see how that can most conveniently and expeditiously be ascertained.
8. (After discussion).
9. The parties are agreed that the plaintiffs will file their list of the defendants’ shares in Court and they will also furnish the defendants with copies of that list within seven days and the defendants on their part will also furnish within a month their list or counter-list if they do not agree with the plaintiffs’ list.
10. The case will be mentioned to us again after a month when we will finally dispose of it.
11. The parties are agreed as to the proportionate shares in which the defendants-respondents are liable to pay the decretal amount, and have submitted a statement showing the said shares. They also agree that the principal amount to be paid by the defendants is Rs. 21,958-15-6 deposited on the 21st of ‘December 1907, minus the sum of Rs. 5,744-2-9 which has subsequently been refunded to the plaintiffs under order, dated the 22nd of February 1909.
12. It is accordingly decreed that the defendants do pay the following sums in proportion to their respective shares shown in the statement of shares: The principal sum of Rs. 16,214-12-9 together with interest thereon at the rate of twelve per cent, per annum from the date of payment up to the date of suit as well as interest on the sum of Rs. 5,744-2-9 refunded to the plaintiffs at the rate aforesaid from the date of deposit of that amount up. to the date of refund. The decretal amount will carry interest at the rate of six per cent, per annum from this date until realization.
13. The defendants will pay costs throughout in proportion to their respective shares.
14. There will be no decree against the three pro forma respondents (Nos. 104, 105 and 103), the suit having been compromised with two of them and the third being given up by the plaintiffs in the Court below.
