1. This judgment will also govern the disposal of Second Appeal No. 320 of 1951.
2. Both these appeals arise out of the decision of the Additional District Judge, Bhandara, in Civil Appeal No. 10-A of 1950. That appeal in turn arises out of a suit instituted by the plaintiff Jagan, who is the respondent in this appeal, and the appellant in Second Appeal No. 320 of 1951, claiming from the defendant-appellant Doma Rs. 1,500/-, as his share of the village profit.
3. The trial Court passed a decree in favour of the plaintiff for Rs. 51/- only. But in appeal that amount was enhanced by the lower appellate Court to Rs. 737/11/-. This enhancement is challenged by the appellant. The respondent in his cross appeal wants this amount to be further enhanced to Rs. 1,500/-.
4. The only question of law which arises in this appeal is whether the Courts below erred in not taking into account the profits made by the plaintiff from certain common lands which he had brought under cultivation while taking accounts of the entire village. In my opinion, the appellant is not entitled to ask in this suit for accounts being taken of the profits made by the respondent from those lands. In Ramdayal v. Gulabia Bai 4 Nag LR 120, it was observed at p. 125 :
'Where one co-owner takes up some of the waste land, or derelict tenancy land, forming part of the joint estate, the other co-owners may either object or consent to his exclusive user of it; and it seems to me that if they do not declare their objection, within a reasonable time of the act of occupancy by their co-sharer, their consent to that act may be implied, and the transaction becomes part of the prevailing mutual arrangement for joint enjoyment.'
In the instant case the respondent has been in exclusive possession of the land. It is therefore open to the appellant either to allow the respondent to continue in exclusive possession of the land as an occupant or to file a suit for joint possession. But he certainly does not have any right to ask for accounts of profits from that land. In Mohesh Narain v. Nawbut Pathak ILR 32 Cal 837 , the learned Judges while dealing with the question of the rights of co-tenants with respect to the profits arising out of mining properties pointed out :
'In the case of mining properties, the only mode in which they may be profitably used is to take from them valuable ores, and, if this is done properly by one co-tenant, so as not to interfere with the exercise in a similar manner of the equal right of the other co-tenant, I do not see upon what ground a liability may be imposed upon the one to account to the other. Indeed, if the contrary view prevailed there would be no mutuality, and enjoyment of joint property would be impracticable; one co-owner might by expenditure of capital and labour reap advantages, which he would be obliged to share with the other, but if he incurred any loss, he would not be entitled to throw the burden upon his co-sharer.'
In the instant case, the same position would result from want of mutuality.
5. Again, as pointed out by their Lordships of the Privy Council in Midnapore Zamindary Co., Ltd. v. Naresh Narayan Roy ILR 51 Cal 631 : AIR 1924 PC 144 , the only right which a co-owner has against another who is in exclusive possession of the common land is to claim compensation. I can do no better than quote their Lordships' observations in this regard :
'Where lands in India are so held in common by co-sharers, each co-sharer in entitled to cultivate in his own interests in a proper and husbandlike manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co-sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands. No co-sharer can, as against his co-sharers, obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them. Their Lordships may refer on this subject of separate cultivation by a co-sharer of lands held in common to what Sir Barnes Peacock said in delivering the judgment of the Board in Robert Watson and Co. v. Ram Chunder Dutt ILR 18 Cal 10 . He then said:
'In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one share-holder can restrain another from cultivating a portion of the estate in a proper and husbandlike manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until all the share-holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected a work which, in ordinary course, in large estates would probably occupy a period including many seasons.'In that case the Board made a declaration that Robert Watson and Co., who were the plaintiffs, should recover from the defendant a sum of money, calculated at a specified rate per bigha per year, as compensation for the exclusive use by the defendant of the bighas which had been occupied by him.'
6. What the appellant wants now is not any compensation per acre of the land which is in exclusive occupation of the respondent but actual accounting of the profits. This, of course, as has been held in the aforesaid case he is not entitled to have.
7. In this view, I dismiss Second Appeal No. 150 of 1951 with costs.
8. Coming to the respondent's appeal, Second Appeal No. 320 of 1951, I am afraid, the ground covers questions of fact only. No question of law arises in any of those grounds. In the circumstances, therefore, it is not open to the respondent to challenge the correctness of the lower appellate Court, and seek a further enhancement in the quantum of the village profits awarded.
9. In this view I dismiss this appeal also with costs.
10. Appeals dismissed.