(1.) THIS reference to Larger Bench of the Board has been made by a Division Bench vide their order dated the 7th of November, 1966.
(2.) THE facts, in brief, which led to this reference are that the plaintiff respondents Rampal s/o Khairati Gujar and others filed a suit on the 21st of November, 1953, for declaration of their two-third right in a well No. 76 and for a permanent injunction against the appellant-defendant not to take water from it exceeding one-third share. THE suit was decreed by the trial court on the 21st of December 1954. THE appellant-defendant pleaded that he had half share in the well as a co-owner and was, therefore, entitled to take one-half of water from the well. On an appeal filed in the court of the Additional Commissioner, Ajmer, the case was remanded on the 28th of July, 1955 ordering amendment of the plaint. According to the amended plaint, so put in the trial court, the plaintiff-respondents had also prayed for issue of a permanent injunction against the appellant. This suit was rejected by the trial court on the 14th of November, 1957. An appeal was filed in the Court of the Additional Commissioner, Ajmer, who accepting the appeal set aside the order of the trial court dated, the 14th of November, 1957, and ordered declaration that in well No, 76 the respondent were entitled to get 2 (lav' of water and the appellant l (lav ). He also ordered issue of temporary injunction accordingly. Aggrieved by this order the appellant Rampal filed a second appeal in the Board of Revenue. THE appeal was put before a Division Bench and the jurisdiction of the Revenue Court was challenged by the appellant on the ground that no relief for determining the share for drawing of water can be obtained in revenue Courts. THE Division Bench which heard this point examined the matter and they thought that a suit in respect of determination of share of water would lie in a revenue court, as 'well' would be covered within the definition of 'holding'; but as there were two cases decided by the two Division Benches of this Board in which contrary views had been taken, they referred the following question for determination by the Larger Bench : "whether a well if it has been given a separate khasra number and is distinct from a tenant's holding would be covered within the definition of a 'holding' under sec. 5 (17) of the Rajasthan Tenancy Act, 1966, as in this case, and therefore whether a suit for declaration and permanent injunction in respect of rights in it would be triable in a Revenue Court. "
Before the arguments were heard the counsel for both the parties urged that in order to give a wider scope to the reference the word 'and' in the phrase 'and is distinct from a tenant's holding' should be substituted by 'or' so that the reference may be read as under : "whether a well if it has been given a separate khasra number or is distinct from a tenant's holding would be covered within the definition of a 'holding' under sec. 5 (17) of the Rajasthan Tenancy Act, 1955, as in this case, and therefore, Whether a suit for declaration and permanent injunction in respect of rights in it would be triable in the Revenue Court. " This amendment in the reference was, therefore, allowed.
The learned counsel for the appellant, Shri C. B. Sharma, argued that this well has a separate khasra number and is commonly owned. Suits for rights in wells are triable in civil courts and not in revenue courts, as irrigated fields are separately owned. He relied on two rulings of the Board of Revenue 1963 R. R. D. 275 (Hiralal versus Sri Narayan) and 1964 R. R. D. 130 (Ram Pratap versus Bherun Singh) in support of his Contention. The learned counsel for the respondents, Shri P. D. Kudal relied on R. R. D. 1955 page 25 ( Onkar vs. Girdhari ), according to which the right to irrigate land from other's well is not to be governed by Indian Easements Act alone, as 'well' is an improvement under all the Tenancy, laws and accordingly item No. 11 (B) of Group D' of the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, authorises a Sub-Divisional Officer to try an application for settlement of dispute as to the right to the benefit of an improvement, irrespective of the provisions that may be contained in the Indian Easements Act for acquisition of prescriptive rights. He contended that because no appeal was filed prior to the coming into force of the Rajasthan Tenancy Act and as it related to the area covered by the old State of Alwar, it would, therefore, be governed by the Alwar Revenue Code, under which item No. 3 of Book 11 which over disputes relating to wells, gives jurisdiction to the Assistant Collector to try such suits. He further urged that under sec. 137 of the Alwar Revenue Code, a tenant has right to make improvement on his holding without even the consent of the owner and if enjoyment of taking benefit from the improvement is infringed, a suit would lie in a Revenue Court. He further urged that it would also be covered under the Rajasthan Revenue Courts (Jurisdiction, and Procedure) Act Group D Item No. 27 and Group D Item No 11 (b), and would, therefore, be triable by a Revenue court. He further argued that the two authorities of the Board R. R. D. 1963 page 275 'hiralal versus Shri Narayan) and R. R. D. 1964 age 130 (Ram Pratap vs. Bheru Singh), do not lay down a correct law as definition of 'holding' or 'improvement' given in sec. 5 (17) and 5 (19.) respectively, has been misconstrued as not to cover a well under it. It was also urged that the law of precedence requires that the subsequent rulings 1963 R. R. D. page 275 and 1964 R. R. D. 130, should have been taken. The doctrine of 'restricted user', he argued, is consistent with the ownership right as held in Ramchandra Gounder vs. Nenkatachala Gounder (A. I. R. 1962 Madras 499);
We have also had the benefit of hearing arguments from Shri S. M. Pareek who represented the Revenue Bar Association, Ajmer, He also contended that under sec. 5 (24) of the Rajasthan Tenancy Act, 'well' is covered in the definition of land and therefore would be a part of a 'holding'. The present case, he argued, was distinguishable from the facts of the case on which 1963 R. R. D. page 275 is based. He also referred to a Single Bench ruling of this Board Bhanwarlal versus Chama Lal and Champalal versus Bhanwarlal (1966 R. R. D. 915), in which it has been "held that right of enjoyment of the share of water by co-tenant falls within the jurisdiction of revenue courts. The learned counsel further contended that as well is a holding, a suit for declaration and injunction would lie under sec. 88 of the Rajasthan Tenancy Act, Similarly, a suit in revenue courts would be competent for enforcement of all rights conferred by the Rajasthan Tenancy Act under sec. 91 of the Act. Only a suit which is based on pure easement rights will lie in a Civil Court apart from the summary remedy provided under sec. 251 of the Tenancy Act.
We have given careful consideration to these arguments. It leaves no doubt in one's mind that the law on the point of how far rights in wells, or in withdrawal of water from wells, are enforceable in a revenue court has not yet been clearly laid down. We would, therefore, like to examine the existing rulings of the Board of Revenue on the point. In order to appreciate these rulings, it would be better to examine them in the context of the facts on which they were based. The oldest ruling which has been brought to our notice is reported in R. R. D. 1955 p. 25. In the ruling a contention, was raised on behalf of the appellant was that as the defendants had failed to establish twenty year's continuous and uninterrupted user of the well water in question, hence they could not be deemed to have acquired an easement within the meaning of the Indian Easements Act. Repelling that contention it was held that the right to irrigate land from other's well is not to be governed by the Indian Easements Act alone. Well is an improvement under all the Tenancy laws. Referring to the definition of 'well' under the Alwar State Land Revenue Code it was observed that the right to irrigate from another's well is to be determined with reference to the above provision, which is just like other tenancy rights, irrespective of the provisions that may be contained in the Indian Easement Act for acquisition of prescriptive easements.
It is thus apparent that the rule laid down in 1956 R. R. D. 25 was based on the definition of 'improvement' in the Alwar State Revenue Code and in the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act item No. 11 (b) of Group D. Though this authority has great relevance so far as the present case is concerned, it cannot be said to lay down law under the Rajasthan Tenancy Act.
In 1963 R. R. D. 275, the appellant was claiming himself to be a khatedar of the well in dispute. He filed a suit against the respondents in the court of the Sub Divisional Officer, Hinduan, under sec. 188 of the Rajasthan Tenancy Act and prayed for a perpetual injunction to restrain the defendant-respondents from drawing water from the well. The learned Members of the Board who constituted that Bench have held that this suit under Section 188 of the Rajasthan Tenancy Act i not maintainable because under that sec. only a tenant whose right to, or enjoymen of, the whole or a part of his holding is invaded, or threatened to be invaded, can maintain such suit. A well which bears a separate khasra number though located in a holding having a different khasra number, cannot be called a 'holding'. It is a different entity. It will be stretching the definitions of land and 'holding' too far by including well in so that definition. " It appears to us that this conclusion that a khatedar of a well cannot bring a suit under Sec. 188 of the Rajasthan Tenancy Act was based on the finding that a well which bears a separate khasra number, though located in a holding having a different khasra number cannot be called a holding. With due respects, we may submit that, as we shall show in detail later, we do not agree with this premise. We have not been able to understand how a well bearing a separate khasra number and located in a holding will not be covered under the definition of a holding. It was further observed "in our opinion the appellant has only one right and that is the right of exclusive enjoyment of his wells apart from his holding. Easement right, if any,over the wells are claimed by the respondents, who have filed no application under sec. 251 of this Act before the Tehsildar for holding an enquiry and to restore their enjoyment. On the contrary the appellant has come to the Court for redress of his grievances. If the appellant feels that his right of exclusive enjoyment of the water of the well is being disturbed in any manner and he does not recognise the right of easement of the respondent to draw water from the well, the only remedy for him is to proceed under sec. 251 of the Tenancy Act and if he does not succeed in getting the required relief he may file a regular civil suit as contemplated under sub-sec. (2) of sec. 251 in a competent Civil Court for getting his right of exclusive enjoyment of the water of the well being declared in his favour and the respondents permanently restrained from interfering with it. " We do not find ourselves in agreement with this view. In this case, the appellant was claiming his right not on the basis of any easement, but on the basis of being the khatedar of the land. His right of enjoyment of the well was a necessary corollary to his right of a khatedar. No doubt, the respondent could set up this right of easement as a plea in defence but that would not, in our opinion, be a reason that the jurisdiction of the Revenue court should be shifted to a Civil Court.
The facts on which the second ruling (R. R. D. 1964 130) is based were that the plaintiff-appellants filed a declaratory suit against Bheron Singh and other defendant-respondents before the Assistant Collector, Dausa. for the ownership of the well bearing khasra No, 53, and restrain the defendant-respondents from drawing water in the fields bearing khasra numbers 54, 177, 178 and 179 without payment of 'nalbat'. The trial Court rejected the suit on the ground that well No. 53 has already been recorded in the khatedari of the respondents. This decree of the trial court was upheld by the Revenue Appellate Authority. In the second appeal, the Bench before which it was argued examined the whole case from a different point and held that it was necessary to determine what actually was the right the plaintiff claimed against the defendant. They held "a well in the Tenancy Act as such has no place except that it was an improvement on land as defined in Sec. 5 (19) of the Tenancy Act. This improvement has to be with reference to it and must be attached to that holding. A tenant who was the khatedar of the holding must also hold the well which was an improvement to the holding. No other person can claim ownership or possession of well or an improvement which exists on the holding of other person. " It appears to us that this view was based simply on the premises that a well in the Tenany Act as such has no place, except that it is an improvement on land as defined in Sec. 5 (19) of the Rajasthan Tenancy Act. This premises as we will see later, was not correct as no attempt in this ruling was made to see whether a well is covered within the definition of a 'holding" and would therefore be a part of a holding. If well is a part of a holding, the observation that no other person can claim ownership or possession of a well, or an improvement which exists on the holding of other person, is uncalled for. There may be a case in which a khatedar may transfer his land but not the well as it may be serving the irrigation needs of his own close by fields.
It thus appears to us that the fundamental question as to the nature of a well in the Tenancy Act was not discussed m any of these two rulings, though an improvement or the rights connected with it were only in the nature of easement rights. 'well' is not defined anywhere in the Tenancy Act, 1955. Sec. 5 (25), however, defines land as below: - "land' shall mean land which is let or held for agricultural purposes or as grove land or for pasturage, including land occupied by houses or encloses situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing singhara or other similar produce but excluding abadi land; it shall include benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth. "
The Bench making the reference were of the view that the phrase 'land covered with water which may be used for the purposes of irrigation' will cover a well within the definition of 'land. ' In the ultimate analysis, they observed, it is only land covered with water and therefore it would be irrational not to include well within this definition and to include a tank in it. Arguments were addressed to us that the reason for including well within the definition of land is not what is given in the order making the reference, but it shall come within the pharase 'it shall include benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth. We, need not go into the question whether well is covered under one part of the definition of the land or the other, but we have no doubt in our minds that well in absence of any other definition given to it in the Rajasthan Tenancy Act, would be covered within the definition of 'land' as defined in Sec. 5 (24) of the Act," Holding is defined in Sec. 5 (17) as under - " (17) 'holding' shall mean a parcel or parcels of land, held under one lease, engagement or grant, or, in the sense of such lease, engagement, or grant, under the tenure, and shall include, in the case of an ijaredar or thekadar, the ijara or theka area. If well as discussed above is covered under the definition of 'land', it will positively be a part of the holding of a khatedar when it is given a separate khasra number. 'improvement' is defined in Sec. 5 (19) of the Act as under: - (19) "improvement" shall mean, with reference to tenant's holding - (a) a dwelling house erected on the holding by the tenant for his own occupation or a cattle-shed or a store-house or any other construction for agricultural purposes erected or set up by him on his holding; (b) any work which adds materially to the value of the holding and which is consistent with the purpose for which it was let; and, subject to the foregoing provisions of this clause, shall include - (1) the construction of bunds, tanks, wells, water channels and other works for the storage, supply or distribution of water for agricultural purposes; (2) the construction of works for the drainage of land or for its protection from floods or from other damage by water, (3) the reclaiming, levelling or terracing of land, (4) the erection in the immediate vicinity of the holding, otherwise than on the village-site of buildings required for the convenient or profitable use or occupation of the holding, (5) the renewal or reconstruction of the foregoing works or such alterations therein or additions thereto as are not of the nature of mere repairs; but shall not include such temporary well, water channels, bunds, enclosures or other works as are made by tenants in the ordinary course of cultivation. " A well under this definition will also be an improvement, but we see nothing inconsistent with the position that a well which is also a part of a holding can also be an improvement to that holding. Though the phrase 'with reference to a tenant's holding' will connote that a well considered as an improvement must be located on the holding itself, yet there may be exceptional cases in which a tenant disposes of some part of his holding by sale or transfer without the well which also irrigate his adjoining lands. In that case, this will be an improvement not only in the holding on which it is located but also in the holding which it benefits. Such cases may, of course, be rare.
Having considered the nature of the well as a part of a holding and/or an improvement, we now proceed to examine the rights relating to it which are enforceable in the Revenue courts. Sec. 207 of the Rajasthan Tenancy Act, 1955 gives jurisdiction to the Revenue courts to hear and determine all suits and applications of the nature specified in the Third Schedule. It bars jurisdiction of any other Court to take cognisance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Section 206 bars the jurisdiction of the Civil Court save as otherwise provided specifically by or under this Act, with respect of any matter arising under this Act or the Rules made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein. The clear meaning of this section is that all suits and. applications covered by the Third Schedule will necessarily be heard and determined by the Revenue Courts and no suit or proceeding in respect of any matter arising under the Rajasthan Tenancy Act or the rules made thereunder will be heard by the Civil Court except as otherwise provided specifically by or under the Act. Conversely, no matter which is not covered by the provisions of the Rajasthan Tenancy Act will be agitated in Revenue Courts except as otherwise provided in the Act.
As we have observed above, well is only a part of a holding. Therefore, all rights which are enforceable for a holding so far as they may be applicable to wells be enforceable in the Revenue Courts. Specifically, these rights are covered under Sec. 88 of the Rajasthan Tenancy Act, under which a plaintiff may seek declaration as a khatedar of a well or for his share in a joint tenancy. He may also enforce his rights in a Revenue Court under Section 91 for any other right accruing to him under the Rajasthan Tenancy Act. Such rights may be a khatedar's right to the declaration for the exclusive use of the water of the well, especially when this right is being disturbed. If a defendant puts up a plea that he is disturbing this right, on the basis of his easement right we do not think the case would be transferable to the Civil Court, as we shall see below, the case will be triable by the Civil Court only when the basis of the right claimed to be enforced is easement and not easement taken as a plea in defence. It can never he the intention of the Legislature that a khatedar's rights for declaration to the exclusive use of his holding cannot be enforced in the Revenue Courts the moment a plea of easement is taken in defence, however untenable. Similarly, there may be rights of a sub-tenant under a lease agreement. Such rights, we may observe, will also be enforced under an agreement in a Revenue Court. There are special rights in the Tenancy Act, such as u/s. 36a, relating to acquisition of rights to nalbat, S. 78 relating to disputes as regards improvements, 158 relating to suits for arrears of irrigation dues, which will also be enforceable in revenue courts, even though they relate to wells. It is difficult to enumerate all rights in respect of wells that are enforceable in revenue courts. A broad criterion may be laid down that if the basis of such rights is khatedari or a joint tenancy, or lease agreement by the sub-tenants to use water, or disputes relating to nalbat, making improvements by construction of wells or relating to irrigation dues from the wells, these rights will be enforceable in revenue courts. If, on the other hand, the basis of enforcement of these rights is pure easement, the Rajasthan Tenancy Act only provides a summary remedy under Sec. 251. If a suit for declaration based on an easement right is to be filed, the Civil Court is the proper forum.
(3.) WE would therefore, answer the reference made by the Bench in the following terms: - "a well if it has been given a separate khasra number or is distinct from a tenant's holding, would be covered within the definition of a 'holding' under Sec. 5 (17) of the Rajasthan Tenany Act, 1955, and therefore, a suit for declaration and permanent injunction in respect of rights which arise out of matters covered by the Rajasthan Tenancy Act or mentioned in Schedule Third would be triable in a Revenue Court. A suit for declaration which is based purely on an easement right would be triable by a Civil Court.
Per Shri Gajendra Singh - I had the benefit of going through the judgment proposed to be passed by my two learned colleagues in the matter. I however most respectfully disagree with the observations made by my learned colleagues in the disposal of this reference. A point of law referred to this Larger Bench by the Division Bench has to be disposed of with reference to the facts of the present case. In disposing of this reference it will be observed that my learned colleagues some how or other were not able to graple with the facts of the case. It is therefore necessary for the disposal of this reference to recapitulate the facts of this case. They are as follows. The well bearing khasra No. 76 is situated in village Chilacho, Tehsil Laxmangarh, District Alwar. It occupies 00 13 biswas of land as 'ghair mumkin' chah known as ganwanwala. It is a pakka well made for use or 'three laws'. These entries are to be found in the settlement jamabandi of Smt. 1991 of this village. The earlier record of this village with regard to this well could be found in 'misal hikiyat' of Smt. 1977. This village was in maufi of the Brahmins granted by the State and was held by Chhaganlal and Madanmohan. The well belongs to the maufidars, and the' 'gair morusi" tenants drew water from the well for irrigation purposes from time to time and paid rent to the maufidar. In the settlement jamabandi of Smt. 1991 the gair-morusi tenants were entered in the khatauni No. 13 where this well 76 was situated. The tenants were Nanga, Bheru and Kana in the maufi of khewat No. 1 of Madanmohan maufidar. In Smt. 1995 jamabandi this well was shown to irrigate khata No. 25 of Nanga and others as well as some numbers in the khatauni No. 18 of Balkishen and others. Thereafter I find no other record except the khasra teep of Smt. 2003 in which this well No. 76 of '3 laws' was held by Nanga s/o Kalyan in one share, Bhonra s/o Gyarsya in one share and Bheru s/o Revda two shares and 'one lav' Bal Kishen and two 'lav' with some one alse. The colomn No. 6 it is still entered as the Gair mumkin chah pukh ganvawala with three lav; but in khasra teep Smt. 2004 and 2008 the entry of khasra No. 76 is the same as shown in khasra No. 69 i. e. this well was held by Nanga in one share. The other record is illegible; but it appears that it was held in 6 shares. Thereafter no jamabandi or record of any kind is produced. The land being in maufi of the brahmins of that village Chaganlal and others their possession must have continued right upto the day the maufi was resumed and the well must belonged to the maufidars and the tenants had acquired no right therein. It was only after the resumption of the maufi that the rights relating to this well could have crystalised as soon as the tenants obtained the khatedari rights. For-this purpose the relevant record was the jamabandi of Smt. 2012 as well as the jama-bandi of Smt. 2015 when perhaps these maufies were resumed. To date of resumption of maufi is a relevant factor for the determination of the rights of the tenants in this case because till the maufi was not resumed, the welt continued to belong to the proprietor maufidars and the tenants were merely tenants at will and it was upon the will of the land holder that the tenants could irrigate the land according to his directions. It is not known after the resumption of maufi in whose khatuni this well came to located.
I entirely agree with my two learned colleagues in the conclusion arrived at by them that a well is an "improvement" and is attached to the "holding" and falls within the definition of "land" as well as of "holding" as defined in the Rajasthan Tenancy Act. It must be remembered therefore that when a well is attached to the holding, it is a well within the khatedari tenants of one person or a set of person the other and the well alongwith the land which it irrigates could be also commonly owned. The only admitted fact before us is that only well is commonly owned ; but no common tenancy exists among the rival parties here. In this case the facts are that Rampal s/o Khairati and others plaintiff respondents claims 2/3rd share in well i. e. the use of '2 lav' and the defendant Rampal s/o Nonga Meena also claims 'two lavs' or equal share in the water, whereas the plaintiff respondents concedes only l/3rd share or one lav water. There is nothing on record to show to which holding this well is attached to. The well as mentioned in the settlement jamabandi is only shown as 'teen lava'. According to the Rajasthan Tenancy Act, 1955 the position of well in the eye of law is nothing ; but only an improvement on the land. This improvement therefore must exist or is attached to a particular place of land in the khatauni of a particular person or persons. If it is commonly owned and irrigates the common land of the tenants then the benefit of the well could be enjoyed by all, otherwise in different circumstances the benefit of the well could only be enjoyed on the basis of agreement or licenses or as a result of easement rights acquired by prescription. It will be remembered that by operation of law as a result of the passing of the Rajasthan Tenancy Act, 1955 sec. 15 conferred Khatedari rights on all those tenants who at the commencement of that Act were tenant of land otherwise than as sub-tenant or tenant of a khudkasht. Admittedly, this land was not in the khudkasht of the land-holder. Therefore all these tenants of this maufi of "chilachoh except those who were tenants of khudkasht and subtenants must have acquired khatedari rights in Smt 2012, Once they acquired the khatedari rights the benefit, of the well attached to the land must have passed to the khatedars. This is an important effect of the laws. It is not known in whose khatauni this well remains attached to. No record of Smt. 2012 has been filed before me inspite of the fact that it was sent for. If we perus the definition of the term improvement under the Rajasthan Tenancy Act as defined in sec. 5 sub-sec. 19 it reads as follows : "sec. 5 sub sec. 19 Improvement shall mean with reference to a tenant's holding. . . . . . . . . . . . . . . . . . shall include the construction of bunds, tanks, wells. . . . . . "
From this definition it appears that the well which is an improvement has no independent existence and it could only be determined and ascertained with reference to a tenants holding. This improvement khown as well also falls within the definition of holding as well as the land. The primary tight conferred by chapter III C of the Rajasthan Tenancy Act u/s 36 A relating to Nalbat enables a khatedar to acquire khatedari right u/s 15 or 15 B in a land with a well attached thereto. If such right is vested in some person other than the landholder, the entire procedure is prescribed in that section. The land-holder no doubt loses the right in the well the moment the khatedari right are transferred to the tenant u/s 15 From the provisions of the Tenancy Act 36 A as well as sec. 24/25, the khatedar tenant when he loses the khatedari rights in favour of the subtenant gets no compensation for the payment of the improvement of a well or other irrigation work because he is paid twenty times the value of the irrigated land u/s 23. It is the third person other than the khatedar who has been realising nalbat from the well alone is entitled to the payment of Nalbat compensation. The same idea is reflected in sec. 36 A of the Rajasthan Tenancy Act.
Under these circumstances for want of further information I am not sure in whose holding this land is attached by the Division Bench in general terms as follows:
If the land is attached to a khatedar's holding, it will be clear that the land belongs to the khatedar free from all incumbrances. Any enjoyment in the use of the land if threatened by any person, a remedy by way of permanent injunction u/s. 188 is available. No declaration of the right of the khatedar in the well is necessary because the well stands recorded in favour of the khatedar in this khatauni and for all practical purposes he is the owner of that well. If some person other than the tenant in whose holding the well is situated claims a right to take water he could only do so as a result of express agreement or on the basis of license or on the basis of easements rights acquired by prescription of 20 years user under the Indian Easment Act. If the land is commonly owned in a joint holding then lest the division of the holding is made every co tenant is entitled to the use of the land in accordance with their share in the joint tenancy.