Judgment S.P.Singh, J. 1. This second appeal is by the defendants against the decree of the Subordinate Judge of Sasaram dated the 20th May, 1961, reversing the decree of the Additional Munsif of that place dismissing the plaintiffs Money Suit No. 83/97 of 1960. 2. The relevant facts are that the parties to this litigation were defendants 1 to 13 in a title suit bearing No. 131/76 of 52/53 brought by one Parsotim Lall as a Shebait of a deity in the Court of the Munsif of Sasaram, alleging that the defendants had demolished a water channel (Karha) through which certain plots belonging to the deity used to be irrigated. He, therefore, prayed for a declaration of the right of the deity for irrigation of those plots through the aforesaid Karha and also for the restoration of that channel to its proper position. The suit was contested by defendants 1 to 8 who are the plaintiff-respondents in the present appeal. Defendants 9 to 13 of that suit, who are the appellants here, did not appear and contest that suit. A decree was, however, passed by the learned Munsif against all the defendants. An appeal was preferred by some of the members of defendants 1 to 8, but the appeal was dismissed with costs. Parsotim Lall, the plaintiff of that suit, execrated the decree in Execution Case No. 66 of 1954, and put the property of defendants 1 to 5 and 7 and 8 to sale. These defendants paid the entire decretal amount besides cost amounting to Rs. 209/- and sued their co-defendants No. 9 to 13 of that suit for contribution of the amount they thought the latter were liable to pay. These defendants contended in that contribution suit that in equity and justice they were not liable for any contribution inasmuch as they did not contest the suit of the original plaintiff nor were they directly responsible for causing any damage to the plaintiff of that suit. They also pleaded defect of parties by saying that the suit for contribution was not maintainable on account of the fact that the co-sharer landlords who had been impleaded in the former title suit, had not been made parties. They also pleaded defect of parties by saying that the suit for contribution was not maintainable on account of the fact that the co-sharer landlords who had been impleaded in the former title suit, had not been made parties. The learned Additional Munsif held that in view of a joint decree for damages and costs having been passed against the plaintiffs and the defendants and the same having been satisfied by the plaintiffs alone, the plaintiffs could sue the defendants for contribution. But, he dismissed the plaintiffs suit on the ground of non-joinder of the co-sharer landlords who were defendants 14 to 21 in the former suit. On appeal, however, the learned Subordinate Judge has found that the non-joinder of the pro forma defendants of the former suit did not affect the claim of the plaintiffs in the suit for contribution because they were not necessary parties and so he decreed the plaintiffs claim against the defendants. Hence the defendants have come up in appeal against this judgment of the Subordinate Judge. 3. Mr. Janeshwar Singh appearing for the appellants has urged that the defendants-appellants should not be made liable for contribution either in point of law or in point of equity. According to him, the title suit brought by Parsotim Lall for the demolition of the water channel was mainly directed against the defendants-respondents as they were interested in dismantling the aforesaid channel and it was they who contested the suit and preferred an appeal also and it was the wrongful acts of the respondents which were responsible for the decree of the suit and the increase in the cost of the litigation. 4. Mr. Keshri Singh appearing for the respondents has contended on the other hand that the decree that was passed in the former title suit was joint and several and as the plaintiffs-respondents had to pay the entire amount of damages and costs they are entitled to seek contribution from their co-defendants as provided under Sec. 43 of the Indian Contract Act. 5. Prima facie a right of contribution exists between persons against whom a joint decree has been passed and it is for the defendants seeking to avoid the liability to show some equity which entitles them to exemption. 5. Prima facie a right of contribution exists between persons against whom a joint decree has been passed and it is for the defendants seeking to avoid the liability to show some equity which entitles them to exemption. The only cases in which the doctrine of contribution will not be enforced are those in which a liability arises out of a joint wrong or where the equities of the case demand that the plaintiff should not recover as where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it. That being so the question for determination in this case is whether the appellants are entitled to be exempted on the above ground. This requires firstly to determine whether the appellants and the respondents can be classed as joint wrong doers. Learned counsel for both the parties have conceded that keeping in view the facts and circumstances of this case, the parties to this litigation can be treated as joint wrong-doers; in other words, joint tort-feasors. A perusal of the copy of the judgment of the Court of appeal relating to the former title suit also shows that defendants 1 to 13 had committed some wrongful acts. There can, therefore, be no manner of doubt that this is a case for contribution between joint tort-feasors. 6. The next question for consideration therefore, is whether the rule of non-contribution between joint tort-feasors can be applied to the facts and circumstances of the present case. Reliance in this connection has been placed on the case of Baijnath Thakur V/s.Bijadhar Kamkar, AIR 1961 Pat 103 . This is a single Bench decision but a reference has been made in this case to some of Division Bench Cases of this Court and it will be useful to refer to the principles enunciated in those cases and to pee whether they apply to the present case and if so, to what extent. 7. I may mention here that the doctrine of non-contribution among joint tort-feasors or joint wrong-doers owes its origin to the case of Merryweather V/s. Nixan, (1799) 101 ER 1337 which was decided by the Kings Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. 7. I may mention here that the doctrine of non-contribution among joint tort-feasors or joint wrong-doers owes its origin to the case of Merryweather V/s. Nixan, (1799) 101 ER 1337 which was decided by the Kings Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. It was an action for the recovery of damages against two sets of joint tort-feasors brought by a mill owner whose machinery of the mill had been destroyed by the aforesaid joint tort-feasors. Having got a decree the millowner recovered the entire amount from one of the joint tort-feasors, the plaintiff. Thereupon, the plaintiff brought an action against his co-defendants for contribution and in that action the doctrine of non-contribution was enunciated. This rule was applied in a modified form in the subsequent decisions of England and was abrogated to a large extent by the passing of the statute known as "The Law Reform (Married Women and Tort-feasors) Act, 1935". It will, however, appear that the question regarding the application of the rule laid down in this case was considered from time to time in the different Courts of India also, but the opinions were by no means uniform. I shall first of all examine the Patna cases on the point. 8. The first case to be noticed is the case of Mahabir Prasad V/s.Darbhangi Thakur, AIR 1919 Pat 165. This case was decided by a Division Bench of this Court consisting of Sir Dawson Miller C. J. and Adami, J. It was a partition suit which was decreed with costs against several defendants. The following observations of their Lordships are pertinent: "There is nothing wrong in a defendant putting the plaintiff to proof of the facts necessary to prove his claim by denying in the written statement the existence of such facts. It is for the plaintiff to prove his case and if his proof fails, the defendant will succeed even if the facts are capable of proof to the knowledge of the defendant." * * * "With several defendants, jointly and in collusion with each other, set up a defence which they know cannot be substantiated in fact and which fails and costs are decreed against them jointly, there is a right of contribution in favour of the defendant who discharges the joint liability for costs under the decree". The rule that there can be no contribution between joint tort-feasors has been referred to in the course of this judgment and after reviewing a large number of cases dealing with the question the learned C. J., has made the following observation: "That the rule of non-contribution between joint tort-feasors exists in India cannot, I think be questioned, but the authorities appear to show that it ought only to apply in cases where the parties are wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act". In the concluding portion of the judgment their Lordships made the following observation: "It seems clear therefore, that the doctrine of contribution is well recognized in this country and that the only cases in which it will not be enforced are those in which a liability arises out of a joint wrong, or where the equities of the case demand that the plaintiff should not recover 43 where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it. Again there can be cases where it is just and proper that the liability should be apportioned in unequal shares". In a later Division Bench case of this Court in the case of Bishambhardeo Narayan Singh V/s.Hitnarayan Singh, AIR 1936 Pat 49 decided by Fazl Ali, J. (as he then was) and Luby, J., the aforesaid view taken by Sir Dawson Miller, C. J. and Adami, J., was adopted in full as will be clear from the following observation. "The only cases in which a doctrine of contribution will not be enforced are those in which a liability arises out of a joint wrong; or where the equities of the case demand that the plaintiff should not recover as where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it", The decision of Raj Kishore Prasad J., in the case of AIR 1961 Pat 103 is to the same effect that the true rule is that prima facie a right of contribution exists between persons against whom a joint decree for costs has been passed and it is for a defendant seeking to avoid the liability to show some equity which entitles him to exemption. No other case of the Patna High Court has been brought to my notice. It would thus appear that so far as this High Court is concerned, the view is that in appropriate cases the claim for contribution by one joint tort-feasor against another tort-feasor may be refused. As already observed earlier, the views expressed by the other High Courts, are however, not exactly on the same line as those of this Court. 9. After reviewing a number of decisions of the Allahabad High Court and other High Courts, a Full Bench of the Allahabad High Court in the case of Dharni Dhar V/s.Chandra Shekhar, AIR 1951 All 774 (FB) has held as follows: "The rule laid down in the English case of (1799) 101 ER 1337, which is formulated in these terms, namely, there is no contribution among joint tort-feasors and wrong-doers, has no application no cases arising in India". It has also been held in this case that a tort-feasor may recover contribution from any other tort-feasors who is or would, if sued, have been liable in respect of the same damage whether as a joint tort-feasor or otherwise. Agarwala, J., one of the Judges who constituted the Full Bench, observed that even in the case of conscious tort-feasor contribution should be allowed where the facts warrant the same. It would thus appear that the earlier view of the Allahabad High Court expressed in support of non-contribution in a Bench decision reported in Parbhoo Dayal V/s.Dwarka Prasad, AIR 1932 All 334 has been overruled. 10. A Division Bench of the Calcutta High Court in the case of Nani Lal De V/s. Tirthalal De, AIR 1953 Cal 513 has also made the following observation : "In our view, the Rule in Merry weathers case, (1799) 101 ER 1337 expressed as a general proposition should not be extended to India. In India when one of the joint judgment-debtors pays oil the decretal debt he has a right to contribution from his co-judgment-debtor, to what extent and in what proportion may depend upon the circumstances of each case. In India when one of the joint judgment-debtors pays oil the decretal debt he has a right to contribution from his co-judgment-debtor, to what extent and in what proportion may depend upon the circumstances of each case. When a defence of this nature is raised, it is pertinent to enquire why by punishing a wicked person by giving effect to the defence, relief is to be given to the defendant who is the other wicked person especially if it should appear that the defendant himself was the main-spring or the ringleader in the perpetration of the tortuous act, or similar other facts are brought out". As all these decisions are based upon a consideration of a good number of decisions of the different High Courts, I do not consider it necessary to examine other cases on the point. Suffice it to say that one Nagpur decision Khushalrao V/s.Bapurao, AIR 1942 Nag 52 and some decisions of the Madras High Court are on the same line. 11 As the decisions of the Patna High Court do not tend to completely rule out the doctrine of non-contribution between joint tort-feasors, I have to investigate in this case whether the appellants are entitled to the exemption claimed. The facts and circumstances as discussed above will show that defendants 1 to 8 of the original suit, who are the respondents in the present appeal, were the main wrong-doers and they resisted the claim of the original plaintiff in the title suit and also in the title appeal. The present appellants, who were defendants 9 to 13 in that suit took no steps whatsoever in resisting the claim of the aforesaid plaintiff at any stage. That being so, on grounds of equity, justice and good conscience if not on the rule of non-contribution as envisaged in Merry-weathers case, (1799) 101 ER 1337 they cannot be made liable for the payment of any portion of the decretal amount or costs of the former suit or appeal. The suit of the plaintiffs-respondents for contribution, therefore, must fail. Accordingly, I allow the appeal of the defendants-appellants and set aside the judgment and decree of the Court of appeal below. In the circumstances of the case, the parties shall bear their own costs throughout. The cross objection preferred by the plaintiff respondents is dismissed.