P.K. Tare, J.

This appeal was previously decided by another Division Bench on 30-9-1958. None appeared for the respondent at the time of the hearing. Therefore, the appeal was decided ex parte. Subsequently, the respondent applied for setting aside the ex parte decree of this Court; and, this Court, by order, dated 13-11-1959, set aside the decree on the ground that there was sufficient cause for the respondent regarding failure of his counsel to appear. Therefore, this appeal has come up for a fresh decision in the presence of both the parties.

This appeal is by the defendant against the decree, dated 17-11-1954, passed by Shri Syed Rafiullah, Additional District Judge, Raipur, in Civil Suit No. 19-B of 1951.

The genealogy of the parties is as follows:-

The appellant was a protected thekadar prior to the abolition of proprietary rights. The plaintiff-respondent's case was that the village was joint family property and protected status was conferred on Jhinjut, the ancestor of the parties. On his death, Puransingh was said to have become the protected thekadar, as his elder brothers, Kulhal and Dhirwa had pre-deceased Jhinjut. Puransingh was said to have died in the year 1924, when the appellant, Hiralal became the protected thekadar on behalf of the joint family. It was further alleged that in 1915. Puransingh had entered into a family arrangement with the plaintiff's father, Ranjit to place 47.38 acres of land in possession of Ranjit in lieu of his share in the theka, which was joint family property. Ranjit and the present plaintiff remained in possession of the said lands till the year 1943. It was alleged in the plaint that the defendant had ratified the family arrangement, when he became the thekadar. However, disputes arose in the year 1943, when Hiralal filed Civil Suit No. 89-A of 1943 for possession of the lands. On 21-8-1944, his claim was decreed by the Court of Sub-Judge, Second Class. The decree was upheld by the Additional District Judge, as also by the Nagpur High Court. The said case is reported as Chandel v. Hiralal ILR 1949 Nag. 883. In pursuance of the decree, Hiralal took possession of the lands on 4-4-1945. Thereafter, the present respondent, Chandel filed the present suit, claiming his share of the profits of the theka for the years 1945-46 to 1949-50. He valued his claim of profits for the said years at Rs. 10,8-0.

The appellant's defence was that thekadari rights were conferred on Puransingh for the first time and that Jhinjut was never the protected thekadar. The appellant, therefore, claimed to have succeeded to have thekadari rights of his father, which was his exclusive and self-acquired property. The alleged family arrangement about placing Ranjitsingh in possession of about 47.38 acres of land was denied. The possession of Ranjitsingh during the appellant's minority was alleged to be permissive. It was further alleged that Ranjitsingh was given Khasra No. 611 area 1.33 acres in lieu of his right of maintenance. The plaintiff's right to claim any share in the thekadari lands, which were sir and khudkast prior to the abolition of proprietary rights, and which became occupancy lands after the enactment of Madhya Pradesh Abolition of Proprietary Rights Act No. 1 of 1951, was denied.

The learned Judge of the trial Court held that the defendant was a protected thekadar on behalf of the joint family consisting of himself and the plaintiff; and, as such, the plaintiff was held entitled to half share in the profits of the joint family thekadari lands. The defendant's contention of an exclusive title to the thekadari rights was negatived. As regards the quantum of mesne profits, the learned Judge found the same to be Rs. 6,400 for the suit years. The learned Judge also negatived the defendant's contention that the plaintiff's father, Ranjitsingh had been given Khasra No. 611 in lieu of his right of maintenance.

The fact that the thekadari was previously recorded in the name of Puransingh, grandfather of th