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. 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. 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 Kapil, or defendant No. 2 or Defendant No. 1. He is definite to say that he never got any receipt either from Kapil or from Defendant No. 2 or from Defendant No. 1 and that there was no lease, He is a man, as he says, carrying on business with a capital of Rs. 25/- to Rs. 30/-. In my opinion no court of justice can place reliance upon the statement of such a witness. The evidence of D.W. 3 seems to be inconsistent with the case made out on the statement of Defendant No. 1. According to D. W. 3 it was after the death of Kapil that Defendant No. 1 was introduced as a tenant into the house. I am therefore of the, view that the Defendants in this case have not been able to discharge their Onus to prove that in fact Kapildied when he was separate from Bhikari and Durjyodhan. 5. But the position that arises is that even though Kapil died in a state of jointness with Bhikari and Durjyodhan in the year 1942, under the provisions of Hindu Women's Right to Property Act (Act XVIII of 1937) the widow has exactly the same rights as the husband had. The further question that arises for determination is whether the rights of the widows are alienable or not. I am bound by a bench decision of this Court reported in ILR (1949) 1 Cuttack 483 where their Lordships held that such a right conferred under the provisions of Act XVIII of 1937 on the widow of the deceased coparcener was alienable. Prima facie therefore the widow had the right to alienate. I should observe in the present case on account of the position that the alienation is in respect of a dwelling house and it is on that account governed by Section 44 of the Transfer of Property Act. Prima facie therefore the widow had the right to alienate. I should observe in the present case on account of the position that the alienation is in respect of a dwelling house and it is on that account governed by Section 44 of the Transfer of Property Act. The second para of the section runs as follows: where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house". Finding that Kapil died in a state of jointness and that the dwelling house was therefore a joint dwelling house, Defendant No. 1, being a stranger-purchaser, is not entitled to joint possession along with the other coparcerners. 6. Mr. Mittra appearing on behalf of the Respondents strongly urged that once he obtained joint possession as found by the trial court he cannot be evicted. In my opinion even if he has obtained possession it must be taken to be in contravention of the provisions of law and he cannot be allowed to take forcible possession by evading the provisions of Section 44, T.P. Act and if he has contravened and obtained possession the Plaintiffs are entitled to the protection of law and can evict Defendant No. 1 the stranger-purchaser. As manifest from the provisions of Section 44, T.P. Act, his only remedy is to sue for partition where again the Plaintiffs may take shelter under the provisions of Section 4 of the Partition Act. Mr. Mittra has contended before me that in the meantime he has made sufficient improvements. The matter is not within the purview of this suit to determine the value of the improvements. The matter can be gone into if and when Defendant No. 1 sues for partition and when the Plaintiffs seek their remedy under the provisions of Section 4 of the Partition Act. But for the purpose of the present suit, the Plaintiffs' suit will succeed and they will be entitled to get possession of the property subject to the observations made by me earlier. The appeal is allowed. The Plaintiff-Appellants will not be entitled to the costs of this Court and of the lower appellate Court, but they will be entitled to costs of the trial court. Final Result : Allowed