Authored By : John Freeman Norris, O Kinealy

John Freeman Norris, J.

1. The facts of this case are shortly as follows: Thepredecessor of one Bhogowan Chunder Roy granted a miras settlement of certainlands in Kaunnara to the plaintiff and certain of the defendants. The ekrarcontained a covenant by the grantees of the settlement not to interfere with ordisturb a ferry ghat belonging to the grantor. In breach of this covenant thegrantees established a ferry ghat near that of the grantor, who thereuponbrought an action against the grantees for breach of covenant and obtained adecree. In execution of his decree the grantor attached certain property of theplaintiff, who, to avoid the sale of his property, satisfied the decree bypaying the damages and costs amounting to Rs. 352-14.

2. The plaintiffs share in the maliki rights under thesettlement was four annas, and he admitted that he was liable for 1/4th of theRs. 352-14, one of his co-sharers paid him Rs. 24 odd in respect of his1a-2g-2k share, and the plaintiff brought this suit to recover the balance withinterest from the surviving co-grantees, and the heirs and representatives ofsome 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 14jointly filed a written statement; the defendant 15 filed a separate writtenstatement; the defendants 16, 17 and 18 jointly filed a written statement. TheMunsiff dismissed the suit as against all the defendants, holding that theywere all wrong-doers, and that no suit for contribution lay, and upon themerits he dismissed the suit as against the defendants 10, 12, 14 and 15; liealso held that the defendants 1, 2 and 3 were not liable for the costs of theappeals preferred to the lower Appellate Court and the High Court against thedecree of the Munsif awarding damages to the grantor. On appeal the DistrictJudge upheld the Munsif s decision, and from his judgment the plaintiff hasappealed to this Court.

3. The Munsif found "that the plaintiff and defendantsmade a conspiracy and opened a ferry ghat in violation of an agreement made bythem in favour of the plaintiff in the damage suit, and it is clear that theyknew that they were doing an illegal or wrong act; for this reason I hold thatthis suit is not tenable."

4. The District Judge says: "The defendants in theformer suit executed an agreement not to open a ferry in the neighbourhood of acertain 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 theyknew or ought to have known that they were doing a wrong or unlawful act. I do notthink 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 intowhich they had entered." I am of opinion that both the Courts below haveerred in treating the plaintiff and defendants as wrong-doers, and in theirapplication of the well-known legal maxim that no contribution lies amongstwrong-doers. When the Munsif speaks of a conspiracy the utmost that he can meanis that the plaintiff and defendants met together and deliberately agreed tobreak their covenant and establish a ferry ghat. This is not sufficient toconstitute a conspiracy. To constitute a conspiracy there must be an agreementbetween two or more persons to do something either malum prohibitum or malum inse, 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 1,000maunds of wheat at a certain price, and between the date of the contract andthe date of delivery wheat has gone up in price, and A, B, and C meet togetherand say "we shall lose lot of money on this contract, let us only deliver500 maunds and leave D to sue us for damages." Could this be said to be aconspiracy I think not; or suppose A and B agree to sell a piece of land to Cand between the date of the contract and the date fixed for the completion ofthe purchase, A and B hear that the piece of land is likely to be taken up fora railway or other public work, and that therefore they will in all probabilityget a much better price than C had agreed to give them, and agree not to conveyto C, but to leave him to bring his action for damages; this would not beconspiracy. 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 : 20W.R. 236; and Suput Singh v. Imrit Tewari I.L.R. Cal. 720; all these cases arecases of tort. Here the plaintiff and defendants were guilty only of a breachof contract. The leading case of Merryweather v. Nixon 2 Smiths L.C. 546points out the distinction between contribution as between joint tort feasorsand judgment against several defendants in an action of assumpsit. I am ofopinion that the appeal should be allowed.

5. As the lower Appellate Court has not tried the case onthe merits, it must be remanded to enable it to do so. Costs will abide theresult.

O Kinealy, J.

6. I concur in the decision of my learned colleague. TheJudge below finds and only finds that the defendants in the former suitviolated their agreement, not that they had committed a wrong independently ofcontract. This finding does not prevent the present suit. See Power v. Hoerz 19W.E. (Eng.) 916.

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Brojendro Kumar Roy Chowdhryvs. Rash Behari Roy Chowdhry and Ors.(03.08.1886 - CALHC)