(1.) These two second appeals by some of the defendants arise out of two suits for declaration of title and recovery of possession in the following circumstances. Tulsi and Panchayan were two brothers. Defendants 1 to 5 were the sons of Tulsi, and are appellants in the two appeals. Defendant 6, Mt. Batasia, was the widow of Panchayan, and Mt. Bipti (defendant 7) was the minor daughter of Panchayan. The plaintiffs-respondents--there are different plaintiffs in the two suits--claimed that Tulsi and Panchayan were separate in mess and business, and after the death of Panchayan, his widow, Mt. Batasia, came in possession of the properties left by him. She, for self and as guardian of Mt. Bipti, executed two rahan bonds in favour of the plaintiffs of the two suits--one of the documents being for a sum of Rs. 999, executed on 27 February 1939, and the other for a sum of Rs. 450, executed on 28 February 1939. Subsequent to the execution of the aforesaid mortgage bonds, there was a dispute between defendants 1 to 5 on one side and defendants 6 and 7 on the other with the result that the plaintiffs, who wanted to cultivate the lands mortgaged to them, were resisted by defendants 1 to 5. The plaintiffs, therefore, brought the two suits with regard to the lands mortgaged to them, and claimed the following reliefs: On an adjudication of the plaintiffs title and want of title in defendants 1 to 5, possession over the rahan property may be caused to be delivered to the plaintiff and Rs. 100 may be awarded against defendants 1 to 3 by way of mesne profits, and orders for the recovery of future mesne profits maybe passed.
(2.) If, for any reason, possession cannot be delivered to the plaintiffs, then Rs. 999 principal and Rs. 81 on account of interest, total Rs. 1080, may be caused to be realised by the sale of the rahan property. 2. I have quoted the reliefs in extenso from the plaint in one of the two suits, because one of the points, raised in appeal, depends on the question as to whether the plaintiffs, respondents could prefer an appeal to the lower appellate Court after having been given one of the reliefs claimed by them. The defence of the appellants in the two suits brought against them raised several points with which we are not at present concerned. The main defence was that Panchayan was all along joint with Tulsi, and with defendants 1 to 5 after Tulsi's death. Panchayan continued to be the karta of the family, and after his death, defendants 1 to 5 got the entire properties by the rule of survivorship. The appellants also alleged that Mt. Batasia was not the lawfully wedded wife of Panchayan.
(3.) The trial Court found in favour of the appellants on the question as to whether Panchayan and Tulsi were joint or separate. He found that the plaintiffs had failed to prove that the two brothers were separate. On this finding, he held that Mt. Batasia, widow of Panchayan, had no interest of her own in the property of Panchayan, which she could transfer to the plaintiffs-respondents. The trial Court, however, gave a simple money decree in favour of the plaintiffs against Mt. Batasia (defendant 6). The plaintiffs appealed, and the Court of appeal below found in favour of the plaintiffs on the question of separation of the two brothers, Tulsi and Panchayan. The learned Additional Subordinate Judge, who heard the two appeals, came to the finding that even though there was no partition by metes and bounds Tulsi and Panchayan lived separate, and there was a complete cesser of commensality between them. On this finding he gave the plaintiffs a decree for recovery of possession of the lands covered by the rahan deeds, jointly with defendants 1 to 5. It is against this decree in the two suits that the two appeals have been preferred by defendants 1 to 5.