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TMI Blog1929 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary to sell the same, I shall sell the same to you at the market price. 2. The lessors under that lease were, speaking substantially, the plaintiffs in the present suit, and, when that lease, came to an end in September 1902, the present defendant 1 whom I shall call Musaji executed a kabuliyat on the same lines. The covenant ran as follows: In addition to the machine-room etc, standing on the said land which was purchased by me, I shall erect machine-rooms etc, according to requirements....On the expiry of the term within one month thereof, I shall remove the buildings etc, belonging to me at my own cost. I shall not be competent to claim any damages in respect of the same from you; and if it be necessary to sell the same, I shall sell the same to you at the market price. 3. Now, that term lasted till 1912. In the meantime in 1904, Musaji, defendant 1, purchased a one third share of the entire property from two of the co-owners who had not been lessors to him. After that in December 1909, he entered into a fresh kabuliyat with the plaintiffs excluding certain property: the share of your co-sharer Babu Kishori Lal Mandal specified in schedule below. 4. He c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as possible the land upon which these valuable structures had been erected and no complaint as regards the structures erected in the way of a rice-mill is now pressed before us. The learned Judge was of opinion that in this case no other question could be entertained as regards the improvements; and it is on that point that this appeal is directed. 7. Mr. Hira Lal Chuckerburty for the appellant says that without hearing evidence to find out what these improvements are, when they are made, what their value is and so fourth, it is not possible to make a partition and to be sure that defendant 1 is not entitled to more than the right which has been granted to him, namely, to get as much as possible the land which has got the structures and the rice-mill upon it. Upon that question the first thing that has to be carefully looked into is the question of the position of defendant as a lessee. The lease which I have referred to 1st December 1909 expire in October 1919 and the first thing the see is whether that lease is still subsisting or not. Defendant 1 in his written statement objected that the plaintiff were not in possession and, when on comes to the evidence given by the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client, defendant 1 is to be treated as if he were a co-owner in possession of the whole as such and he says further that it is a general principle of equity that when a man, as co-owner, has made improvements over the whole, prima facie he is entitled not merely to get an allotment of his share which will carry with it, so far as possible, the benefits of the improvements but he is entitled prima facie either to make the other co-owner pay for the improvements he has made upon the rest of the property or else the other co-owners must get a smaller share in order that the person who has made the improvements may reap the value of his expenses. 9. In my opinion, this appeal fails upon two main grounds in that respect as to which Mr. Chukerbutty in a very able and careful argument has not convinced me at all. First of all, it seems to me that, as between defendant 1 and the plaintiffs, defendant 1 who took his kabuliyat after he became a co-owner, namely, in 1909, is not in the position of a co-owner in occupation of the whole as such. He is a person who has definitely attorney to them in respect of the plaintiffs' share. He has made a bargain with them, notwithstanding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will get every penny to himself of the advantage which his money has created. See, in this connexion, Freeman on Co-tenancy and Partition, Edn. 2, p. 680: If one joint tenant or tenant-in-common covers the whole of the estate with valuable improvements so that it is impossible for his co-tenant to obtain his share of the estate with out including a part of the improvements so made, the tenant making the improvements would not be entitled to compensation therefor, notwithstanding they may have added greatly to the value of the land; because it would be the improver's own folly to extend his own improvements over the whole estate and because it would be unjust to permit a co-tenant at his pleasure to charge another co-tenant with improvements he may not have desired. In such a case, the improver stands as a mare volunteer and cannot, without the consent of his co-tenant, lay the foundation for charging him with improvements. 10. Prima facie, it seems to me that such an owner will be given an allotment, so far as is possible, that may enable him to keep the advantage of his improvements. But it requires a special case and a very strong case for the Court to go any further t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put up in the Court House of the twenty-Perganas by way of giving information to the lady who by all consent was then living with her husband somewhere in Natal in South Africa. That is an absurdity. It is certainly not a reasonable way of serving notice. Substituted service is not to be used in any way which is unbusiness like and ridiculous. But in this case, there is ample evidence that under Order 5, Rule 25, Civil P.C., this lady was properly served by a proper notice being sent to her and posted to her in the ordinary manner. In these circumstances, it was not necessary to have recourse to the somewhat peculiar procedure that had been adopted in this case under the guise of substituted service. 13. The last point which remains for consideration is with reference to a plot of 9 cottas which does not appear in any of the leases granted to defendant 1 or his predecessor Melosh. As regards that, defendant 1 makes a claim to have acquired a complete title thereto by adverse possession. That is not an easy thing to make out as against a co-owner at any time. But on the evidence of the defendant-appellant's own witnesses in this case, it seems to me that that claim is wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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