JUDGMENT

Henderson, J. - This appeal has arisen in connexion with a dispute to four annas share in a certain tank. Eight annas of this tank originally belonged to one Durga Charan which was inherited by his sons Khagendra and Jogendra, pro forma defendants 6 and 7. Khagendra sold it to the plaintiffs' father during the minority of Jogendra. Subsequently, Jogendra sold it to &he appellants after attaining his majority. The question in dispute therefore is which of these sales is to prevail. The Munsif dismissed the plaintiffs' claim on the ground that Khagendra was not the guardian of Jogendra. The Subordinate Judge reversed this finding holding that Khagendra was the do facto guardian. He allowed the plaintiffs' claim on two grounds : (1) that Jogendra's title was extinguished by adverse possession and (2) that the sale was for legal necessity.

2. These findings have been challenged here, firstly, because no such cause was made in fine pleadings and secondly because there is DO evidence upon which they can be supported. It is quite true that neither of these cases was made in the plaint and no issues were framed to deal with them. It was asserted in the written statement that there w