KORA RANA Vs. SAIBO BEHERA

JUDGEMENT

(1.) THIS is a defendants' appeal directed against an appellate decree passed by the learned Subordinate Judge, Berhampur, in Title Appeal No. 36 of 1951, allowing the plaintiff to recover full possession of the suit -properties from the defendants, and to realise past mesne profits, as decreed by the learned Munsif.

(2.) THE plaintiff commenced a suit (Title suit No. 114/49) for recovery of possession of the disputed properties after evicting the defendants therefrom. The plaintiff's case was that he purchased the suit properties by a registered deed of sale on 2 -11 -1936, and sometime thereafter left for Burma. He returned from Rangoon in the year 1949, to find the defendants in possession of the said land and they would not vacate in spite of his repeated demands. He sent a registered notice to the defendants calling upon them to deliver possession of the suit -lands with mesne profits. To this notice, the first defendant's reply was that he had purchased the suit -lands from Champa Beherani and Abhimanyu Behera and thereafter he had sold them to the second and the third defendants and that he was in possession thereof as their tenant. The plaintiff's case therefore was that neither Champa Beherani nor Abhimanyu had any right to sell the suit -lands; Champa being the widow of his separated brother and Abhimanyu being her son. Thus, he contended that the sale by Champa and Abhimanyu was not binding upon him, and that since the defendant -1 had not acquired any title under the impugned sale -deed, defendants 2 and 3 cannot derive any higher right than that of the defendant 1.

(3.) ON these pleadings the trial judge came to the finding that Champa was the wife of the plaintiff and that Abhimanyu was his son through her. The main finding by the trial judge which was the basis of his decree was that the suit -properties were joint family properties and that there was no legal necessity to justify the sale. On these findings, the learned trial judge decreed the plaintiff's suit in part and directed the plaintiff to recover joint possession of the suit lands in respect of his half interest and also to recover Rs. 98 -4 -0 towards the past mesne profits.