MAMMATHU Vs. KATHIJUMMA UMMA

JUDGEMENT

(1.) This second appeal relates to the reservations to be ordered in a partition suit between Mohammedan coowners concerning a room, a cocoanut bin, a cattle shed and the compound wall alleged to have been constructed, and a well alleged to have been dug, by two of them, defendants 3 and 4. Under a partition deed Ext. B 1, dated the 20th September 1930, the house and land sought to be partitioned, which were described in it as a house, two cattle sheds and a courtyard were left in common. In the partition deed Ext. A 1, dated the 13th January 1954, the description was in greater detail. The plea was that in the event of partition being allowed, the reservations may be made in favour of defendants 3 and 4. The Munsiff accepted the plea as regards the room and the bin, but not the others. The plaintiff appealed to the District Judge and defendants 2 to 7, who are the appellants here, preferred a memorandum of objections. The District Judge while affirming the findings of the Munsiff, held that there could be no reservation of even the room and the building, unless the construction was a necessity or it was made with the concurrence express or implied of the other coowners and directed the Munsiff to pass a final decree after enquiry.

(2.) The findings that the room and the bin were constructed by defendants 3 and 4 are concurrent. The plea that the cattle shed, the compound wall, and the well, belonged to them was negatived by the Judge on the sole ground that there is no evidence whatever to support the plea. The Munsiff accepted the evidence of the 4th defendant Dw. 1 and of his witnesses to find that the room and the bin were constructed by them; the same evidence if accepted would prove that the well was dug and the compound wall built by defendants 3 and 4. The District Judge failed to advert to this evidence. The Munsiff has practically discarded the evidence of Pw. 1. Dws. 1 and 2 admitted, that the cowshed claimed is what was rebuilt in the place of the old one which went into ruins. The renovation of the cattle shed, such as it was, was in the year 1958, after the suit was instituted and the commissioner had made a local inspection. In his report the commissioner observed, that a cattle shed was in a state of ruin. So all that defendants 3 and 4 could be held to have done was, to repair the cattle shed; more than this, is not made out by the evidence. So, differing from the lower courts, I hold, that a compound wall was also constructed to the extent noticed by the commissioner in his report in Ex. C 1 and a well dug by defendants 3 & 4.

(3.) Learned counsel for defendants 2 to 7 has taken exception to the statement of the law laid down by the Judge and has contended, that the items of improvements found, may be allotted to the share of defendants 3 & 4 in the event of partition. The law is stated thus by Freeman in his work on Cotenancy and Partition, 2nd edition, S.509 -