RAGHUNATH SAKHARAM Vs. KESHO RAO

JUDGEMENT

(1.) MACNAIR , J.C. 1. The plaintiffs-respondents obtained and executed a decree for joint possession of a certain field which is incapable of partition. At sowing time they sent men and ploughs in order that the defendant should allow them to assist in the cultivation of the field. The defendant's brothers and servants did not allow the plaintiffs' servants to take part in the sowing of the field. Tha plaintiffs on this allegation claimed a decree for joint possession of the land and a one-third share of the profits. The defendant is not shown to have denied the plaintiffs' title. His contention which I have to consider is that the field was small and could not be cultivated jointly by separate cosharers without a previous arrangement in which the exact rights and duties of the joint cultivators were settled. The lower Courts found that the conduct of the defendant amounts to exclusion of the plaintiffs from possession, and the plaintiffs have obtained a decree directing the defendant to deliver joint possession to the plaintiffs. The memorandum of second appeal includes a ground which challenges the decree for mesne profits ; but it is admitted before me that the findings on which this portion of the decree is based are findings of fact and cannot be disturbed in second appeal. The point which I have to consider relates to the rights of a person entitled to joint possession. In my opinion, this point is settled by the view which their Lordships of the Privy Council took in Watson & Co. v. Ramchund Dutt (1891) 18 Cal 10. Their Lordships state : It seems to their Lordships that if there be two or more tenants in common, and one (A) be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant-in-common (B) attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said part, and A resists and prevents such entry, not in denial of B's title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession.

(2.) IN the absence of any attempt to arrive at a settled understanding the defendant's servants could not know exactly what the plaintiffs intended to do if their ploughs took part in the sowing. They had reason to think that the land could not be cultivated in a proper and husband like manner if the defendant were allowed to do some part of the cultivation whenever he chose to do so. They could not, with due regard to economy, arrange for seed and for weeding if it was uncertain whether the plaintiffs intended to supply some seed and to provide some labour. The plaintiffs then did not take proper steps if they desired to take part in the cultivation. It is urged for the respondents that the plaintiffs who are entitled to joint possession of a field which cannot be partitioned should be able, by some method, to take part in the cultivation and should not be obliged to content themselves with a share of the mesne profits. I think they can, by adopting proper methods, enforce their right to take part in cultivation. They can put forward a definite proposal that some part of the field should be cultivated by them or that they should supply bullocks, labour and seed and get a share of the produce. If the defendant unreasonably rejects such a proposal, it is possible that the plaintiffs may be allowed to cultivate the whole land; the fact that the defendant has been cultivating the whole land does not necessarily entail that he should continue to do so.