SITARAM MADHOJI Vs. MAROTI

JUDGEMENT

(1.) THE last male owner of the property in question was Lakshman Kunbi, who died in 1889. The first plaintiff Sitaram-Madhoji inherited his property when his widow Balambi died on the 15th September 1919. On the 30th October 1920 he executed in favour of the second plaintiff : Sitaram-Hambirji, a champertous sale-deed of half the property that Balambi had alienated during her lifetime, and the present suit is one of at least two instituted by them to recover possession of that property from different alienees. In the plaint which was filed on the 28th March 1925, in addition to the claim for possession, which has succeeded, there was also a claim for mesne profits of the fields in question for the year 1922-23 and the two following years. The net income from the fields during those three years has been found and is admitted by both parties to have been Rs. 1, 500.

(2.) THE present appeal by the plaintiffs is against the refusal of a decree for that amount of Rs. 1,500. The learned Judge of the lower Court has referred to the judgment of the Privy Council in Bejoy Gopal v. Krishna Mahishi [1907] 34 Cal. 329, and has apparently read it to mean that in a case of this kind the election of a reversioner to treat the alienation by the widow as a nullity, so as to make the possession of the alienee wrongful, can only be expressed by the filing of a suit. That is obviously incorrect; as soon as the reversioner demands possession and it is refused the alienee is a trespasser.

(3.) THE defendant Maroti, who for the most part conducted his own case in the lower Court, as he did here entirely, made no mention in his pleadings of any demand for possession and the matter is not expressly mentioned in any of the issues framed. The third of them is " whether the plaintiffs are entitled to get the profits claimed," and it is apparent from the evidence that was led that the parties understood this to include the question whether the plaintiffs had intimated their intention of avoiding the transfer at any time before the institution of the suit, and if they did, when this happened.