Judgment :-

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and decree passed by the High Court of Madhya Pradesh, Indore Bench at Indore in Civil Second Appeal No. 103 of 1982 dated 24.8.2000.

2. In order to appreciate the controversy involved in the case, it is necessary to recapitulate the basic facts of the case.

3. The appellants father Sukhram (since deceased) filed a suit bearing Civil Original Suit No. 230A of 1972 before the learned Fifth Civil Judge, Indore, Madhya Pradesh against Jagannath (since deceased). It was pleaded, inter alia, that Sukhram (plaintiff) and Jagannath (defendant) were brothers and sons of Narsingh, who died leaving behind 22.39 acres of agricultural land and an ancestral house in village Kadwali Khurd. The said land was jointly cultivated and the house was jointly occupied by both the brothers. Sukhram went to his maternal uncles house to look after his property. Sukhram before leaving the village went to his brother Jagannath and requested him that he would be looking after his maternal uncles property and till he returned to his village, the property may be looked after by him (Jagannath) and he be given the usufruct or income from his share of the property.

4. On return, Sukhram demanded the possession of the property of his share and also demanded the income derived from the said property from Jagannath, but he did not pay any attention to his request. Ultimately, Sukhram had to issue a notice on 13.6.1971 to Jagannath. The said notice was served upon Jagannath on 19.6.1971 but even then he did not give possession of the land and the income from it to Sukhram during the period when he was away. Ultimately, Sukhram filed a civil suit and claimed possession and future mesne profits at the rate of Rs.1,000/- per year and Rs.8,000/- for the past mesne profits.

5. In his written statement, defendant Jagannath surprisingly taken following pleas that:-

(a) the parties were not brothers, but step brothers;

(b) the house in dispute was in a dilapidated condition at the time of death of his father;

(c) the property was not partible and the plaintiff Sukhram was not entitled to any share in it. It was also incorporated in the written statement that father of the parties had taken loan from different persons and had created a charge of Rs.5,000/- over the land and the house and that it was not possible to discharge the debt from the income of the said property and, therefore, immediately after the death of their father, the plaintiff Sukhram went to his in-laws house and started living there. It was further stated by defendant Jagannath that he discharged the loan from the earnings of the property, income from the service and business of cattle and while doing so rebuilt the house and developed the property. He further stated that he also sunk a well spending a sum of Rs.4,000/-. Sukhram came back to his village and demanded his share, but Jagannath did not accede to his request and turned him out. Defendant Jagannath pleaded absolute ouster of Sukhram and claimed that he had perfected his title by adverse possession. In the alternative, it was also submitted that as he had spent money for construction of the house, development of the land and sinking of the well, in case a decree is to be granted in favour of the plaintiff, half of the expenses be given to him. He, however, prayed for dismissal of the suit.

6. The learned Civil Judge decreed the suit in favour of plaintiff Sukhram. The plaintiffs case is crystal clear that he had entrusted his share of immovable properties to his brother Jagannath to look after it and return the same to him on his return along with the usufruct or income derived from his share of the immovable properties. The evidence does not reveal that the plaintiff left the suit property with a view to permanently abandoning it.

7. The first Appellate Court relied upon the decision in P. Lakshmi Reddy v. L Lakshmi Reddy AIR 1957 SC 314 at para 4, wherei