The main legal point established in the judgment is the distinction between reimbursement and contribution under the Contract Act, and the application of Sections 43, 69, and 70 to determine liability for contribution and reimbursement in a suit for arrears of rent and costs.

Reuben, J.

1. This appeal is directed against a decision of the Subordinate Judge, Second Court, Gaya, affirming a decision of the Munsif, First Court, Gaya, in a suit for contribution, The appellant was defendant 1 in the suit. In village Dardha, under the proprietress Sayeeda Khatoon, there is a dar-mokarari tenure comprising a share of eight annas Dokhta of the village. It is held in the following shares: (1) Plaintiffs two annas; (2) defendant 1, one anna, and (3) defendants 2 and 3 five annas. The one anna share was formerly held by Tufail Ahmad (defendant 5), from whom defendant l acquired it by purchase in 1345 Fasli. Dar-mokarari rent having fallen in arrears, the proprietress sued and obtained a decree against the plaintiffs for the arrears of rent for the years 1342 to 1345 Fasli. Defendant l was not impleaded in the rent suit. The plaintiffs deposited Rs. 1,945-7.0 towards satisfaction of the decree and the other co-sharer dar-mokararidars having paid their quota of the dues in accordance with their respective shares, brought this suit for contribution against defendant 1. On the allegation that defendant l in his sale-deed undertook to pay the arrears for 1342, they sought contribution from defendant l in respect of that year also, but in the alternative, sought contribution for this year from Tufail Ahmad.

2. Defendant 1 resisted, disclaiming liability on the ground that he was not a party to the rent suit, and further that, in the course of the execution of the decree for arrears of rent, his share of one anna was exempted from sale on an objection under Order 21, Rule 58, filed by him. Tufail Ahmad being dead, his legal representatives have taken the defence that defendant 1 having undertaken the liability in the sale-deed, was liable to contribute and not Tufail Ahmad.

3. The learned Munsif accepted the defence of the representatives of Tufail Ahmad and, on considerations of equity, found defendant l liable to contribute in proportion to his share in the darmokarari interest. In view of the fact that the rent decree was not passed against him, and that his one anna share was exempted in the execution proceedings, he considered that Sections 69 and 70, Contract Act, have no application. On these findings, he proeeeded to decree the suit in full. The Subordinate Judge in appeal bas baaed the decree against defendant 1 on Sections 43, Contract Act. Like the Munsif, be has relied upon the sale-deed as imposing on defendant l the liability to contribute in respect of the year 1342. He has pointed out that the Munsif inconsistently with his findings decreed the suit against the representatives of Tufail Ahmad, but he found himself unable to interfere as there wag no appeal or cross-objection by them before him.

4. Three contentions have been pressed before us : (1) That defendant 1 is not liable to contribute at all, (2) that he is not liable to contribute in respect of the year 1342, and (3) that he is not liable to contribute in respect of the decree for costs in the rent suit.

5. The first contention is rested on the decision of Das J. in Kamaleshwari Prasad V/s. Jagarnath, A. I. R, (7) 1920 Pat. 155 : (56 I. C. 949). In that case, the landlord had obtained a decree for arrears of mokarari rent for the years 1315 to 1318 Fasli against two sets of tenants who formed defendants second and third parties in the subsequent suit for reimbursement. The plaintiff in the reimbursement suit, who was a co-sharer mokararidar, and who apparently had not been impleaded in the rent suit, paid Rs. 1067-4-9 is satisfaction of the decree and sued for reimbursement. Defendant l in the suit, who was a co-sharer mokararidar to the extent of two annas, having purchased this share on 8th September 1909, and was the mortgagee in possession as to three annas share from before the period covered by the rent suit had not been impleaded as a defendant in the rent suit. His Lordship held that defendant 1, not being a party to the decr