KODURU KAMALAMMA Vs. KODURU PITCHAMMA

JUDGEMENT

(1.) 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 8 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 8 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.

(2.) There were appeals to the Court of the Subordinate Judge both by the first defendant and by the plaintiffs and the 8 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 8 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.

(3.) 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.