1. Some argument was addressed to us on behalf of the defendants, appellants, with reference to the calculations, on which the lower Court's judgment is based. We have not, however, been shown how any question of law is raised in connexion with their correctness and we therefore decline to interfere with the conclusions, in which those calculations result.
2. The remaining ground on which the appeal is argued is against the lower Appellate Court's refusal to make any provision in its decree for an award to the defendants on account of the improvements they allege they have made on the suit property. The suit property is part of a larger area in common ownership of the plaintiff and the defendants. The plaintiff let his unascertained share to the defendants; and the present suit is brought for the eviction of the defendants from that share, the form, of the decree being of course a decree for partition by metes and bounds of the pontiff's share and delivery to him of possession thereof It cannot, therefore, at present, be said that the improvements are on the portion of which the plaintiff will be entitled to delivery. But in any case we cannot see how one tenant-in-common, who makes improvements on the property of the co-tenancy, can ordinarily be entitled to compensation for doing so. The defendant's argument has been based on the dictum of Mookerjee, J., in Upendra Nath Banerjee v. Umes Chunder Banerjee (1910) 12 C.L.J. 25.
If one joint owner has in good faith effected valuable improvements upon the common property at his own expense, equity will take this fact into consideration upon a partition and in some way will make an allowance to him therefor, in addition to his rateable share of the property.
3. The learned Judge has proceeded to explain the nature and the grounds of this equity; but we prefer to decide whether any such principle as that relied on by him is really recognized by authority. Certainly it is not recognized in the unqualified form, in which he stated it in the cases referred to in his judgment. In Swan v. swan (1820) 8 Price 518. the Court ordered a reference for an account to be taken of what had been expended by a co-tenant necessarily or with the concurrence of the other co-tenant; and those qualifications were fully recognized in In re Jones, Farrington v. Forrest r(l).  2 Ch. 461. No doubt the reference in that case to the observations of Cotton, L.J., in Leigh v. Dickeson  15 Q.B.D. 60. is at first sight in favour of the existence of a general right in one co-tenant to compensation for improvements made by him against another. But the judgments of Brett, M.R., and of the other learned Judge in Leigh v. Dickeson (2), amply sustained the right as subject to proof of the necessity for repairs or improvements or of the co-tenant's concurrence, express or implied, in their execution. The portion of the judgment of Cotton, L.J., to which reference has been made, appears, on a perusal of his judgment as a whole, to be concerned solely with procedure, that is, with the existence of a remedy in equity by a partition suit, which the common law could not afford. In the present case defendants have never, in their written statement or elsewhere, alleged the plaintiff's concurrence, expressed or implied, in what they did; and no issue on the point was framed or even asked for. In these circumstances this objection to the lower Appellate Court's decree must fail.
4. The Second Appeal is therefore dismissed with costs, including costs of Civil Miscellaneous Petition No. 2483 of 1921.