NAUANAGULAGARI KRISHNA REDDY Vs. NALLANAGULAGARI NARAYANA REDDY

JUDGEMENT

(1.) 1. The defendant is the appellant. Plaintiffs 1 and 2 filed the suit for recovery of a sum of Rs. 223-11 being the 3/16th share of the defendant in a certain joint well which was repaired. The trial court dismissed the plaintiffs' suit. On appeal, it was allowed. The facts leading up to this litigation may be stated. The plaintiffs and the defendant belonged to the same Village. They along witn one Thimma Reddy jointly owned a well used by them for irrigating their lands. The 1st plaintiff is entitled to a 1/8tb share, the 2nd Plaintiff to a 3 16tb share, the defendant to a 3/16th share and Thimma Reddy to a half share. It would appear that in November, 1968 all the wells in the village were going dry. The well belonging to the parties which is called 'Pedda Bhavi' was silted up. The silt had to be removed and the well deepened to have an adequate supply of water for irrigating the fields belonging to the parties At that lime, the Plaintiffs had on their lands standing crop like paddy,sugarcane and other garden crops. On account of the deepening of the neigh-bouring wells there was considerable diminution of water in the Pedda Bhavi. The 2nd plaintiff got a notice Ex. A, 1 dated 2b 11,1968 issued to Thimma Reddy,the owner of a half-share in the well and also to the defendant, who is the owner of a 3/16th share in the well requiring him to contribute to the repairs of the well. The Plaintiffs gave a contract on 20th of November for Rs. 300/- for removing the silt and subsequently had spent a further sum of Rs. 890/-. The repairs included both the removal of the silt and deepening of the well which were absolutely necessary. The plaintiffs had maintained accounts for all the work done and Timma Reddy who owned a half share in the well had paid his proportionate share of the amounts spent. But the defendant had not paid the same in spite of demands. Again a registertd notice, Ex. A, 12 dated 27-1-1969 was issued to the defendant requiring him to pay Rs. 223-11. The defendant, as per the endorsement on the notice had refused to receive the same To the second notice. Ex. A. 12, the defendant sent a reply Ex A. 14 dated 10-2-1959 inter alia denying his liability to share proportionately the expenses of the repair. In November, 1968, the defendant had no crops in his lands. In the written statement of the defendant, he stated that he was entitled only to a 7/32th share in the well He pleaded that Ex. A. 1 notice was not refused by him as no such notice was tendered to him. He also questioned the correctness of the accounts. It was stated inter alir that he was not entitled to contribute.

(2.) I am inclined to think that Ex.A-1 notice was refused by the defendant. We find from the endorsement that on four consequent days when he was sought to be served, he was away and it was only on 30th of November, there is an endorsement that he refused to take delivery. Even if the refusal is not proved, I should think that the defendant who belonged to the same village must have known about the repairs being done to the joint well. It is not as though the work was done in a day or two. The defendant tnust be imputed with the knowledge of what was going on and yet he remained quiet without raising any sort of protest stating that if the repairs were carried out, he would not be liable for any contribution.

(3.) The only point urged in second appeal by the appellant is that in law he is not liable to contribute. A suit of the present type claiming contribution by one co-sharer or tenant-in-common against another is governed by Section 70 of the CONTRACT ACT, 1872. Under this spction, there are three essential conditions to give a right of action to a person who does anything for another : 1. The thing must be done lawfully; 2. It must be done by a person not intending to act gratuitously; and 3. The person for whom the act is done must enjoy the benefit of it. Unless the above three conditions are established, the claim under Section 70 of the Act for contribution will be untenable. Does the removal of the silt and the deepening of the well in the instant case constitute improvement to the joint well or necessary repairs? I am of the view that having regard to the facts of this case that the expenses incurred by the plaintiffs in this case for the purpose of removal of the silt and deepening constitute necessary repairs to the joint well.