UDEKAR SAHU Vs. CHANDRASEKHAR SAHU AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal against the judgment dated 19th July, 19M of Sri R.C. Misra, District Judge of Sambalpur, confirming a decision of the Subordinate Judge, arising out of a suit for mesne profits for the years 1940 to 1949. The Plaintiff has assessed the mesne profits at Rs. 4890/ -.

(2.) NILAMONI and Lakhan were two brothers. The present Plaintiff -Appellant Udekar is the son of Lakhan and Defendants 1 to S are the sons of Nilamoni. Lakhan and Udekar filed partition suit No. 16 of 1942 in the Court of the Subordinate Judge of Sambalpur, for partition and separate possession of their eight annas interest 10 the joint family properties. Nilamoni and his sons, the present Defendants, figured as Defendants. In the partition suit. There the defence ran only to the effect that the partition suit was not maintainable as there was a previous partition by metes and 'bounds. The defence contention was upheld by the two lower Courts but was negatived in Second Appeal, their Lordships having found that the parties were only in amicable possession of portions the scheduled lands or the sake of convenience and there had been no actual partition by metes and bounds. Eventually a final decree was passed and the present Plaintiff and his father took delivery of separate possession of the lands allotted to their eight annas interest in the properties scheduled in the decree. Thereafter both the brothers Nilamoni and Lakhan died. The present suit for mesne profits has been brought by Udekar against the Defendants claiming the aforesaid sum of Rs. 4890/ - for the year 1940 to 1949.

(3.) IT must be held in this case that it is not the Defendants 1 to 3 who were in sole possession of the joint family properties to the exclusion of the present Plaintiff. It was the very Case of the Plaintiffs in the previous suit that they were in possession of some portions of the joint family properties and the Defendants were in possession separately in respect of others. Their Lordships of the High Court In the Second Appeal finally settling the disputes between the parties came to the conclusion that the parties were in separate possession of portions of joint family properties for the sake of convenience and not by way of or in consequence of a partition by metes and bounds.