Decided on January 10,1961

PRASANNA DAS Respondents


- (1.) A short but important and difficult question falls to be answered in this Second Appeal which arises out of a suit for declaration of title and recovery of possession. The appeal is by the defendant No. 1 against whom, substantially speaking, a concurrent decree has been passed by the learned courts below for ejectment and mesne profits. The learned Munsif decreed the suit for ejectment and also for mesne profits against defendant No. 1 from January, 1953. The lower appellate court varied it by only splitting up the decree for mesne profits against the two defendants Nos. 1 and 2. Defendant No. 1 has appealed from the said decree and the plaintiff, in his turn, has tiled a cross-objection against the above variation or modification and also the dismissal of his claim for mesne profits for the year 1952 and for costs of the appeal before the court of appeal below.
(2.) THE plaintiff was a purchaser from one Baruneswar Banerjee, who claimed to have obtained the disputed property by inheritance and subsequent partition. That property, which comprised a room in Holding No. 222, G. T. Road. Sibpur, was part of the estate, left by Baruneswar's father Rai Saheb Krishnadhan Banerjee. Baruneswar was one of the four sons and heirs of the said deceased, his other three sons and heirs being Bhubaneswar Banerjee, Kasiswar and Biseswar Banerjee. The aforesaid estate, comprising inter alia, the two holdings Nos. 222 and 222/1 g. T. Road, Sibpur, thus devolved on the four persons above named, each of whom got an undivided one-fourth share therein.
(3.) IN or about the year 1946, on September 13 of that year, to be exact, Biseswar instituted T. S. No. 55 of 1946 in the Court of the 2nd Subordinate Judge, Howrah, for, inter alia, partition of the aforesaid properties and, in the said suit a sole decree was passed on December, 1, 1947, on a compromise petition, filed by the defendant co-sharers. Under this decree, the aforesaid two holdings Nos. 222 and 222/1. were allotted exclusively to Baruneswar and, upon the concurrent findings of the two courts below, which are not open to challenge in Second Appeal he (Baruneswar) also obtained khas possession of the same. Thereafter, it appears, he sold holding No. 222 in its entirety to the present plaintiff who claims to have obtained possession of the same, including the disputed room, but alleges subsequently dispossession by the defendants. This dispossession furnished the immediate cause of action of the present suit.;

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