1. Some arguments have been 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 connection with their correctness and we, therefore, decline to interfere with the conclusions on which those calculations resulted.
2. The remaining ground, on which the appeal is argued, is against the lower Court's refusal to make any provision in its decree for an award to the defendant 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 defendants. The plaintiff let his unascertained share to the defendants, and the present suit is brought for the eviction of the defendants from the share, the form of the decree being, of course, a decree for partition by metes and bounds of the plaintiff's share and delivery to hi in 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 ease, 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 defendants' argument has been on the dictum of Mookerji, J., in Upendra Nath Banerjee v. Umesh Chandra Banerjee 6 Ind. Cas. 346 : 12 C.L.J. 25 : 15 C.W.N. 373 that, '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.' 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 recognised by authority. Certainly, it is not recognised in the unqualified form in which he stated it in the cases referred to in his judgment. In Swan v. Swan (1830) 8 Pri 518 : 22 R.R. 770 : 146 E.R. 1281 the Court ordered a referee 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 these qualifications were fully recognised in Jones, In re, Harrington v. Forrester (1893) 2 Ch. 461 : 62 L.J. Ch. 996 : : 69 L.T. 45. No doubt, the reference in that case to the observations of Cotton, J., in Leigh v. Dirkeson (1885) 15 Q.B.D. 60 : 54 L.J.Q.B. 18 : 52 L.T. 790 : 33 W.R. 538 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 in the judgments of Brett. L.R., and of the other learned Judges in Leigh v. Dickeson (1885) 15 Q.B.D. 60 : 54 L.J.Q.B. 18 : 52 L.T. 790 : 33 W.R. 538, the right was only sustained 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 the 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.
3. The second appeal is, therefore, dismissed with costs, including costs of Civil Miscellaneous Petition No. 2483 of 1921.