A stranger-purchaser of a share in a joint dwelling house is not entitled to joint possession with the other coparceners.

JUDGMENT :

Mohapatra, J. - This is a Plaintiff's second appeal arising out of a suit for declaration of their title in respect of the disputed property which is a homestead and for recovery of possession. Kapil, Bhikari and Durjyodhan are three brothers. Bhikari is Plaintiff' No. 1 and Durjyodhan is Plaintiff No. 2. Kapil died in the year 1942 leaving his widow Hira Bewa (Defendant No. 2). Defendant No. 1 claims title by virtue of a kabala executed by Hira for a consideration of Rs. 100/- on 15-6-44 in respect of the 1/3rd share of the disputed dwelling house. The Plaintiff's allegation is that in fact Kapil died in a State of jointness and as such Hira had no right to alienate her share of the property. Defendant No. 1, therefore in the eye of law, is to be treated as a trespasser and is liable to be evicted.

2. The main defence is that in fact Kapil died long separated before his death and as such Defendant No. 2 is entitled to execute the kabala in respect of the 1/3rd share of the homestead.

3. The Courts below have found as a matter of fact that Kapil died in a state of separation and as such his widow Hira was entitled to convey the disputed property in favour of Defendant No. 1.

4. Mr. Dasgupta, appearing on behalf of the Plaintiff-Appellants, has taken up the point before me that the finding of the lower appellate Court that Kapil died in a state of separation is not a legal finding so as to be binding on the Plaintiff in second appeal. Undoubtedly the onus is upon the Defendants alleging separation to prove that in fact Kapil had separated. On a careful perusal of the judgment of the lower appellate court find that the learned lower appellate Court has relied upon the statement made by one of the Plaintiffs in the Court and the documentary evidence coming iota existence after the death of Kapil. I will make it clear at the outset that the pertinent question before the Courts blow was to determine the state of Kapil at the time of his death. The documents coming into existence after the death of Kapil to which the widow was a party are not material evidence to weigh with the Courts of fact. In my opinion, the learned lower appellate court and the trial Court as well have misdirected themselves in attaching too much importance to the documents coming into existence after the death of Kapil. Regarding the evidence prior to the death of Kapil the lower appellate Court has confined himself to the statement made by the Plaintiff himself which he holds as an admission of separation. The statement runs thus.

Kapil was residing in the eastern side of the house. Durjyodan occupying the middle portion and myself the western side. I do not know if Hira Bewa's land is separated in the landlord's sherista, in the suit holding.

Mere occupation of different portions of a dwelling house by different coparceners is absolutely no evidence of separation in status. In my opinion, therefore, the finding of the lower appellate Court being based merely upon this piece of admission of one of the Plaintiffs and upon documents coming into existence after the death of Kapil is bound to be set aside as not being a legal finding. On a reference to the judgment of the trial Court however I find that be had relied upon the evidence of 2 other witnesses examined on behalf of the Defendants. They are D.Ws. 2 and 3. The learned lower appellate Court has not referred to their evidence neither has he relied upon them. I find it therefore necessary to examine the worth of the evidence of these two witnesses bearing in mind that I am to attach importance to the view of the trial Court in appreciating the evidence of these two witnesses. D.W. 2 in chief states that he had taken the house on rent from Kapil, the deceased husband of Defendant No. 2, about 7 or 8 years ago and that he was in occupation of two room. In cross-examination however he states

I cannot say the month or year in which I took the home on rent. I cannot say how many times I had paid the rent to