RANGALU LAKSHMANA Vs. RANGALU SEETAMMA

JUDGEMENT

(1.) IN this appeal the judgment and decree passed by the Additional Subordinate Judge, Berhampur, confirming the judgment and decree passed by the learned Munsif, Berhampur, have been challenged.

(2.) THE respondent (Plaintiff) is admittedly the first wife of the appellant (defendant). Her rase is that she had married the appellant in 1946. Her father Nilamani, who owned the agricultural land described in schedule 'A' and the house and homestead described in schedule 'B' of the plaint, had no male issue. In order that the appellant and the respondent would take care and look after him and his wife in their old age. Nilamani alienated the suit property jointly in their favour by a deed of gift executed on 30 -7 -1947. The appellant and the respondent thus remained in possession of the suit property and looked after Nilamani and his wife until their death. But, soon after the death of Nilamani's widow, the appellant neglected and ill -treated the respondent and ultimately in the year 1969 drove her out of the house. He took a second wife, begot children through her and has been living with them The respondent, on the other hand, is living a life of destitute. As a matter of fact, the suit property was gifted in favour of the respondent by her father Nilamani with a condition that so long the appellant will keep his marital relationship with her, he shall enjoy the property. After the appellant cut off his marital relationship with her, he is no longer entitled to enjoy the suit property. Therefore, she prayed for declaration of her title in respect of the suit property described in schedules 'A' and 'B' of the plaint, for recovery of possession thereof by evicting the appellant therefrom and for mesne profits since the year 1972 -73.

(3.) THE learned Munsif held that by virtue of the deed of gift (Ext. A), the appellant and the respondent both acquired joint title and possession in respect of the suit property. There was break of marital relationship and separation between the parties in the year 1969. The appellant could not prove ouster of the respondent from the suit property and acquisition of his own title in respect thereof by adverse possession. The respondent, therefore, had half share in the suit property and accordingly she was entitled to a preliminary decree for partition of her half share therein. She could not, however, prove her case of mesne profits and so was not entitled to the same Accordingly, the learned Munsif passed a preliminary decree for partition. On appeal, the learned first appellate Court confirmed the decree for partition and although the respondent had not preferred a cross -appeal or cross -objection claiming mesne profits, he decreed the same at the rate of Rs. 300/ - per year from the agricultural year 1972 -73 till recovery of possession.