Koduru Kamalamma and Others vs Koduru Pitchamma and Others

This second appeal arises out of a suit for partition and separate possession of lands set out in schedule A to the plaint. The dispute relates to a

casuarina plantation which was in existence on about 100 acres of the suit land on the date of the institution of the suit. Plaintiffs 1 to 5 and 8th

defendant who are the appellants here claimed 43 1/2 shares out of 77 shares in the lands in schedule A, including the casuarina trees standing on a

portion of the lands. The first defendant was entitled to 21 1/3 shares, while the family of defendants 2 to 6 was entitled to 12 shares. We are not

concerned in this second appeal with the seventh defendant, who claimed a half share in one of the items. The first defendant, who is the main

contesting respondent, pleaded that there was an oral partition between the predecessors-in-interest of the plaintiffs and the 8th defendant on the

one hand and defendants 1 to 6 on the other, at which the lands on which the casuarina plantations were raised had been allotted to him and

defendants 2 to 6 and that he raised the plantation at his own expense with the consent of defendants 2 to 6. The case of the plaintiffs, on the other

hand, was that no partition had taken place before the institution of the suit, and that the first defendant raised the plantation on behalf of all the

sharers. The learned District Munsiff of Nellore who tried the suit held that the case set up by the first defendant of an oral partition was not true;

but he held that it was the first defendant who was the sole person who raised the plantation. He then discussed the question of adjusting equities

between the co-sharers, having regard to the fact that the plantation had been raised by the first defendant alone at his expense and with his labour.

He was not, however, prepared to accept the suggestion on behalf of the first defendant that the lands covered by the plantations should be

allotted to his share. In his opinion, the proper course was to treat the plantation and the income realised by the sale of the trees as the joint

property of all the sharers and to direct the other sharers to pay the first defendant the actual cost of cultivation together with the interest on the

amount spent by him, subject to the condition that if it was found that the amount due to the first defendant exceeded the amount actually realised

by the sale of the trees, the first defendant should have no claim to recover the balance from the other sharers.

There were appeals to the Court of the Subordinate Judge both by the first defendant and by the plaintiffs and the 8th defendant. Both the

appeals were heard together and disposed of by the learned Subordinate Judge of Nellore by a common judgment. He took a different view from

the learned District Munsiff as to the manner in which the equities had to be adjusted. After the decree of the lower Court, the casuarina trees were

sold away by a commissioner appointed by the Court, and the sale proceeds which amounted to a considerable sum were deposited into Court to

the credit of the suit. The only question that had to be determined was who was entitled to the money in Court, and to what extent. He came to the

conclusion that the only right which the plaintiffs would be entitled to was a right to compensation in respect of their share of the lands on which

casuarina plantations had been raised for the period commencing from the date of the plaint till the date when the trees were cut and removed. As

the parties could not agree on the compensation for this period, he merely declared that the plaintiffs would be entitled to compensation for the

period and directed that it should be determined in the final decree proceedings. The plaintiffs and the 8th defendant have preferred this second

appeal against the said decree and judgment of the learned Subordinate Judge, while the first defendant''s legal representative (the first defendant

having died pending the appeal in the lower Court) has preferred a memorandum of cross-objections.

The two contesting parties took up extreme positions. For the first respondent, it was contended that the appellants were not entitled to anything

at all in respect of the casuarina plantations while the appellants wanted the entire sale proceeds of the casuarina to be treated as joint property to

be divided among all the sharers according to their respective shares and the only concession which they were prepared to grant to the first

defendant was a deduction for the expenses incurred by him in raising the plantation.

Neither of the parties attempted to challenge the findings of fact arrived at by the lower Courts, namely, that there had been no oral partition

before the date of the suit, and that the first defendant was the person who solely expended time, trouble and money to raise the plantation. On

these admitted facts, the rights of the parties fall to be considered.

The rights of co-tenants or co-sharers who hold a large extent of undivided property jointly, inter se, while they continue to be undivided, are

often difficult of determination. Undoubtedly, any sharer has got a right to demand and obtain a partition by metes and bounds of the joint

property. But till that is done, and it cannot be that any of the sharers has got an exclusive right to any part of the joint land, what are the rights and

obligations of the several sharers to each other? In theory, each co-tenant is entitled to be in possession and to use every part of the common

property, so long as he does not exclude his co-tenant. A co-sharer is not an agent of the other sharers, apart from any specific contract. In the

case bf land capable of enjoyment by cultivation, it is clear that unless there is joint cultivation or community farming, the theoretical right of every

co-sharer to enter upon and hold exclusive possession of the common property cannot be enjoyed in practice. Supposing, on a part of the

common property, which is not in the actual possession of any other sharer, one of the sharers expends his skill and labour and money and raises

valuable produce, is he under a liability to account to the other co-sharers for the profits realised by him? Are crops raised by one of the co-

tenants on any part of the common lands (in the absence of an agreement to that effect) held in co-tenancy? The preponderance of the authorities

both in England and America appear to confirm the right of each co-tenant

to enter upon and hold exclusive possession of the common property and to make such profit as he can by proper cultivation or by other usual

means of acquiring benefit therefrom and to retain the whole of such benefits, provided that in having such possession and in making such profits he

has not been guilty of an ouster of his co-tenant nor hindered the latter from entering upon the premises and enjoying them as he had a right to do.

(See Freeman on Co-tenancy and Partition, 2nd edition, Section 258). The reason of this rule is that it would be inequitable to compel a co-tenant

in possession to account for the profits realised out of his skill, labour and business enterprise, when he has no right to call upon his co-tenant to

contribute anything towards the production of these profits, nor to bear his proportion of the loss which may result on account of failure of crops or

other unavoidable causes. More or less the same rule has been applied to India.

In (1890) L.R. 17 I.A. 110 (Privy Council) , a case decided by the Privy Council, the facts were as follows : One of two co-sharers was in

actual occupation of part of the common property, cultivating it exclusively. The other co-sharer attempted to enter upon the same land in order to

carry on operations therein inconsistent with the work already being carried on by the former, who resisted and prevented the attempted entry. It

was held that the resistance being made by the co-sharer in occupation simply with the object of protecting himself in the profitable use of the land

and not in denial of the other''s title, such resistance was no ground for the grant of a decree for joint possession or for damages or for the grant of

an injunction. Their Lordships did not accept the contention on the part of the plaintiffs that the acts of the resisting co-sharer amounted to what in

England would be called an actual ouster and therefore the plaintiffs were entitled to a decree for joint possession, and observed as follows:

In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one share-holder can restrain another

from cultivating a portion of the estate in a proper and husband-like manner, the whole estate may, by means of cross-injunctions, have to remain

altogether without cultivation until all the shareholders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds

can be effected, a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a

climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In

Bengal the Courts of Justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience, and if, in a case of

share--holders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being

actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow

any other shareholder to appropriate to himself the fruits of the other''s labour or capital.

The only order which their Lordships made in favour of the plaintiffs was that they do recover from the defendants a sum of money calculated at a

certain rate "" as compensation in respect of the exclusive use and benefit by the defendant No. 1 "" of the common land.

The rule thus laid down came up for further discussion in another case before the Privy Council in (1891) L.R. 19 I.A. 48 (Privy Council) . In

that case, the defendant, a co-sharer in village lands, without claiming any monopoly, set up a ferry within the limits of the village over a river which

ran through it and collected tolls from strangers for its use. The other co-sharers brought a suit for a declaration of their rights to the profits of the

ferry proportionate to their shares in the village. The High Court made a declaration with respect to the possession and profits of the ferry and

directed an account of the profits accordingly. Their Lordships set aside the decision of the High Court and dismissed the suit. The ratio decidendi

was that joint property being used consistently with the continuance of the joint ownership and possession without exclusion of the co-sharers who

had not joined in the work, there was no encroachment on the rights of any of them as regards common enjoyment, so as to give ground for a suit.

It was not alleged that the defendant had used the river for passage in any such way as to interfere with the passage of other people. It ws not

alleged that the defendant''s action in any way prevented any one else from setting up a boat for himself or his men or from even carrying strangers

for payment. Their Lordships referred to the earlier case in (1890) L.R. 17 I.A. 110 (Privy Council) , as throwing light on the subject. After citing

the passage which has been quoted above, their Lordships pointed out that the facts of that case were very different from the facts of the case

before them and that no profits had been earned by the defendant by the exclusion of the plaintiffs from possession as was done by the Watsons,

the defendants in the earlier case.

The decision of the Privy Council in 29 CWN 34 (Privy Council) throws considerable light on the subject. In a suit for partition brought in 1912,

the defendants-co-sharers contended that they had rights of permanent occupancy in the land and resisted partition. They also pleaded that the suit

was barred by Article 142 of schedule I to the Limitation Act. Both their pleas were negatived and the suit for partition was decreed. In addition to

the reliefs of partition, their Lordships also granted to the plaintiff a decree directing the defendants to pay compensation to him for their exclusive

use of the lands from the time of such exclusive occupation. Their Lordships laid down the following general propositions in dealing with the facts

of the case before them:

Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband-like

manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in

respect of such exclusive use of the lands. Such an exclusive use of the lands held in common by a co-sharer is not an ouster of his co-sharers from

their proprietary right as co-sharers in the lands. When co-sharers cannot agree as to how any lands held by them in common may be used, the

remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain partition of the lands.

Their Lordships referred to the prior decision of the Board in (1890) L.R. 17 I.A. 110 (Privy Council) and to the declaration made therein that the

plaintiffs should recover from the defendant a sum of money as compensation for the exclusive use by the defendant of the land which had been

occupied by him.

Counsel for both sides addressed us arguments for which they tried to find support from the above decisions of the Privy Council, each in his

own way. Mr. Konda Kotayya contended for the appellants that the occupation by the first defendant and his raising casuarina plantation were

acts amounting to an ouster of the appellants and their predecessors. To make good this contention, the learned advocate referred us to certain

proceedings under the Madras Land Encroachment Act in which the Revenue authorities sought to levy penal assessment for encroaching on

Government land adjoining the private land of the parties and planting the same with casuarina. The notice issued u/s 7 of the Act was addressed to

all the co-sharers (Ex. XII). But in reply to this notice, the first defendant filed an application before the Sub-Collector, Gudur division on 17th

March, 1932, (Ex. XIII) in which he definitely stated that he alone had raised the casuarina trees on the land alleged to have been encroached

upon and that the other co-sharers had nothing to do with the unauthorised occupation. He requested the Sub-Collector to remove the names of

the other co-sharers who had not occupied the land. He then made the following statement:

As this encroached land is adjoining my lands, I have at my own expense raised casuarina trees and occupied the land. If this land is valued along

with neighbouring lands and a patta is granted, I will take the same.

Mr. Kotayya particularly relied on the first defendant''s description of the encroached land as adjoining "" my lands,"" as evidence of the assertion of

an exclusive title in denial of the title of the other co-sharers. The inference appears to be far fetched. There is no manifestation of an intention to

deny the title of the co-sharers. The first defendant''s sole interest was to plead with the Revenue authorities for the grant of patta for the land

encroached upon. It was only in extenuation of his unauthorised action that he mentioned the fact that the encroached land adjoined his lands. The

occasion did not call for any assertion relating to the title inter se between the first defendant and other co-sharers. Mr. Kotayya was unable to

refer us to any other piece of evidence to support his plea that long before the institution of the suit the first defendant had been asserting a title

hostile to the appellants and that he had ousted them from joint possession. On the other hand, their own case in the plaint was that the first

defendant on behalf of the appellants'' predecessor and the remaining sharers planted and reared casuarina trees for the joint benefit of all the

sharers (vide paragraph 5 of the plaint). In the face of this allegation in the plaint and the statement of the appellants'' predecessor

Veeraraghavayya, in his evidence that the first defendant was planting the trees on the land on their behalf, it is impossible to sustain the contention

of the appellants on this point. It is only in reply to the plaintiffs'' case, now held to be false by both the Courts, that the casuarina plantation had

been raised by all the sharers jointly, that the first defendant put forward a case of exclusive title based on oral partition. We agree with the learned

Subordinate Judge that till the date of the suit, the first defendant did not assert any hostile or exclusive title on his part and till the date of the suit,

the plaintiffs did not object to the first defendant''s user of the land in question.

Mr. Chandra Reddy, on the other hand, argued that the appellants were not entitled to any relief at all (except of course partition) on account

of the first defendant''s occupation and the raising of the casuarina plantation by him on joint land, because the first defendant had not set up a

hostile title, or done any act which would amount to an ouster in law. According to him, the appellants were not entitled even to any compensation.

He tried to explain away the Privy Council cases in (1890) L.R. 17 I.A. 110 (Privy Council) and Midnapore Zemindari Co., Ltd. v. Naresh

Narayan Roy (1924) 47 M.L.J. 23 : ILR 51 Cal. 631 (P.C.) as cases in which there was ouster, and he also relied on the decision of the Calcutta

High Court in Chandra Kishore Chakravarthi v. Biseswar Pal 3333.

In our opinion, Mr. Chandra Reddi''s contention is based on a wrong understanding of the ratio decidendi of the two decisions in (1890) L.R.

17 I.A. 110 (Privy Council) and Midnapore Zemindari Co., Ltd. v. Naresh Narayan Roy (1924) 47 M.L.J. 23 : ILR 51 Cal. 631. It is not

accurate to say, that compensation was awarded to the plaintiffs in (1890) L.R. 17 I.A. 110 (Privy Council) because of an actual ouster. A careful

reading of the judgment of Sir Barnes Peacock clearly shows that if their Lordships had accepted the contention on the part of the plaintiffs that the

acts of the defendants amounted to what in England is called an actual ouster, then they would have granted a decree for joint possession. It is true

that there was some resistance by the defendants, but their Lordships pointed out that the resistance was not in denial of the title of the other

sharers, but simply with the object of protecting himself in the profitable enjoyment of the land. Though, therefore, there was no ouster, the Privy

Council granted the compensation because of "" the exclusive use and benefit "" by the defendant of joint land. In Midnapore Zamindari Co., Ltd. v.

Naresh Narayan Roy (1924) 47 M.L.J. 23 : ILR 51 Cal. 631 (P.C.) there is a clear pronouncement which is opposed to the contention of Mr.

Chandra Reddi. Their Lordships point out that a sharer of joint property is liable to pay to his co-sharers compensation for exclusive use of the

lands held in common, and add the following important statement:

Such an exclusive use of lands held in common by a co-sharer is not an oust or of his co-sharers from their proprietary right as co-sharers in the

land.

With great respect to the learned Judges who decided the case in Chandra Kishore Chakravarthi v. Biseswar Pal ILR (1927) Cal. 396 we think

there is a difference between an exclusive use of lands held in common by a co-sharer and an ouster by one sharer of his co-sharers. In that case,

the learned Judges found that the plaintiffs had not asserted a claim to joint occupation, nor had they objected to the defendant being in occupation

of the land in dispute, and the plaintiffs had neither been excluded nor ousted from possession of the land by the defendant. All that they claimed

was a share of the profits which had resulted from the defendant''s occupation of the land. It may be, when there is no exclusion or ouster but

merely an exclusive occupation of a part of the entirety of the common land, the co-sharer in such possession is not liable to account for the profits

made by him from such occupation. But it is one thing to say that the other co-sharers are not entitled to an account of the profits or to a share

therein; it is quite another thing to say that the co-sharer in occupation of common land far in excess of his legitimate share, is not liable to pay

compensation to the other co-sharers for such exclusive occupation by him. The decisions of the Judicial Committee in Watson and Co. v.

Ramchund Dutt (1890) L.R. 17 LA. 110 : ILR 18 Cal. 10 (P.C.) and 29 CWN 34 (Privy Council) are direct authorities for the position that even

when there is no ouster in law, a co-sharer in possession of joint land in excess of his share is liable to pay compensation to the other co-sharers

for his exclusive use and benefit of the common land. The other decisions cited by Mr. Chandra Reddi, namely, Shiva Narain Mahton and Others

Vs. Chandra Sekhar Prasad Singh and Others, Raj Ranjan Prasad Sinha v. Khobari Lal ILR (1940) Pat. 162 and Tadikonda Ramakrishna Rao

and Another Vs. Kottagundu Subba Rao, do not carry the matter further. We hold that the plaintiffs are entitled to some compensation from the

first defendant for his sole and exclusive occupation and use of the joint lands in excess of the extent to which he would be properly entitled in

accordance with his share. While we agree with the learned Subordinate Judge that there should be a decree for compensation in favour of the

plaintiffs, we do not agree with him that the compensation must be for the period subsequent to the date of the suit. On principle, the compensation

must be for the entire period from the date of the first defendant''s exclusive occupation.

As the learned Subordinate Judge found it is difficult to exactly assess this compensation. To avoid a prolongation of the litigation, we called

upon the parties to agree to a reasonable compensation on this basis. If there is no agreement possible, the only course is to direct the

compensation to be determined in the final decree proceedings.

The second appeal is allowed in part to the extent indicated above, but dismissed otherwise. There will be no order as to costs. The

memorandum of objections is dismissed with costs.

The parties are unable to agree on the amount of compensation. It will therefore be determined in the final decree proceedings.