RAI KISHORI GHOSE Vs. KUMUDINI KANTA GHOSE

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for recovery of possession of what is claimed by her as joint property. The defendants denied the allegation that the property was still joint; their case was that since the partition of 1877 mentioned by the plaintiff, they have been in possession of the disputed land as included in their allotment, and that as the result of a subsequent partition amongst themselves, the second and third defendants are at present in occupation of the disputed lands.

(2.) The Court of first instance made a decree in favour of the plaintiff. Upon appeal, the learned Subordinate Judge, after he had partially heard the arguments, went to the spot and held a local investigation under section 392 of the Code of 1882. He subsequently heard further arguments and came to the conclusion that the judgment of the original Court must be modified.

(3.) The plaintiff has now appealed to this Court, and on her behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first, that he has made a new case for the parties; and secondly, that he ought not to have held a local investigation and made the results of the facts observed by him on the spot the foundation of his judgment.