JUDGMENT
Subrahmania Aiyar, J.
1. The question in the case is whether plaintiff is entitled to recover from the defendant Rs. 45 and odd, the amount paid by him on account of the revenue due in respect of certain land which stood registered in his name, but which belonged to the defendant and was in the latter’s possession when the money was paid. At that time a suit which the plaintiff had brought against the defendant for the possession of the property was pending, though it was since dismissed.
2. The District Munsif has held that the plaintiff was not entitled to a decree, and I think, correctly.
3. Before me Section 69 of the Indian Contract Act was relied on on behalf of the plaintiff, and both sides directed their arguments wholly to the question whether the plaintiff was, within the meaning of the section, “interested” in the payment of the money, and the point, whether the money was what the defendant was bound to pay, was not discussed. I think it unnecessary to deal with those arguments, as, in my opinion, the suit fails on the ground that the demand for the revenue was one which the defendant was not bound to meet, though it was to his interest to have done so. Where land is assessed for revenue the owner thereof cannot by virtue of his ownership alone be held as compellable to pay the revenue. The right of the Government to proceed for the recovery of revenue is regulated by the Revenue Recovery Act. The property of the land holder, i.e., the registered holder, as well as the land on which the arrear is’ due may be seized and sold and such holder may also be arrested and confined. But as against in owner of land who is not registered holder, the same remedies are not available, and neither his property other than the land in regard to which the arrear is due nor his person can be proceeded against. No doubt if the land liable for the revenue is sold in due course of legal process the unregistered owner’s right to the land would be lost. But that shows nothing more than that it would be to his interest to pay up the arrear of revenue. Consequently such arrears cannot be said to be what the owner is bound by law to pay within the meaning of Section 69 of the Indian Contract Act. Though as pointed out in Pollock and Mulla’s commentaries on the Act, page 239, the law as laid down in Section 69 of the Act, is, in some respects, wider than the English law on the subject, yet there can be no deubt that the two agree so far as the element under consideration with reference to an action for money paid is concerned. Bonner v. Tottenham and Edmonton Permanent Investment Building Society (1899) 1 Q.B. 161, where the matter was fully considered may be referred to. There the lessess of certain premises having assigned the term, the assignee mortgaged the premises by way of a sub-demise, under which, on default, the under lessees (mortgagees) were empowered to enter into possession or receive the rents. In the event of their doing so they covenanted to pay the rent reserved by the original lease. The under lessees, having entered into possession did not pay the rent which accrued due under the lease while they were in possession. The lessees, having been compelled to pay it, sued the under lessees to recover the amount so paid. It was held that the action was not maintainable. The following remarks of A.L. Smith, L.J., are in point. “The ratio decidende of Moule v. Garrett L.R. 5 Ex. 132 and 7 Ex. 101 is this. If A is compelled to pay B damages which C is also compellable to pay, then A having been compelled to pay B can maintain an action against C for money so paid, for the circumstances raise an implied request. By C to A to make such payment in his case. In other words A can call on C to indemnify him. To raise this implied request both A and C must, in my judgment, be compellable to pay B; otherwise, as it seems to me, the payment by A to B so far as regards C is a voluntary payment which raises’ no implication of a request by C to A to pay,” (page 167). Vaughan Williams, L.J. thus distinguished the case of the sub-lessee from that of an assignee: “As to the common liability of the lessee and the under-lessee they ‘clearly are not both liable to be sued by the lessor for rent. The lessee alone can be sued, and the under lessee is only liable to the lessor in the sense that the lessor has a remedy in rein by distress on goods on the property demised and by the power of re-entry for non-payment of rent or breach of covenant. It is in this sense only that the under lessee car be said to be liable to the lessor for rent. Is this a common liability within the reason on which the condition is based? I think not. The common law principle requires a common liability to be sued for that which the plaintiff had to pay and an interest of the defendant in the payment in the sense that he gets the benefit of the payment, either entirely, as in the case of the assignee of a lease, or pro tanto, as in the case of a surety who has paid and has his action for contribution against his co-surety.” (page.174,).
4. It is thus clear that the plaintiff’s claim, as sought to be made out with reference to Section 69 of the Indian Contract Act is unsustainable.
5. Nor, in the circumstances of the present case, is the plaintiff entitled to rely on Section 35 of the Revenue Recovery Act. It is not shown that the payment was made by the plaintiff to obtain the release of the land from attachment made or threatened. Even if it were so, the plaintiff was not a tenant, mortgagor or incumbrancer as required by the section.
6. If it is not superfluous to say so the plaintiff was not in a position to have availed himself of even the special remedy provided by Section 501 of the Civil Procedure, Code under which a suitor can apply to the Court to be put in possession of land paying revenue to Government which is the subject of the suit when the party in possession neglects to pay the revenue and the property is consequently ordered to be sold, and can get a decree directing the payment of the amount paid by him towards the revenue or get it charged on the land. For the land in litigation between the plaintiff and the defendant was not ordered to be sold and the defendant had not only always been ready and willing to pay but did also tender the revenue due before the plaintiff made the payment, and that tender was not accepted by the village officers solely because the plaintiff taking advantage of his name being on the register objected to the defendant being allowed to pay and insisted on the money being received from himself.
7. In every view therefore the payment by the plaintiff was voluntary. I dismiss the petition with costs. Petition dismissed.
