DILAWAR KHAN Vs. BHAWANI SINGH

JUDGEMENT

(1.) The plaintiff respondent in this second appeal claims to be co-sharer to the extent of one half share in a patti which consists of 5 biswas in mahal Alaidapur. Mahal Alaidapur consists of two pattis, one the patti just mentioned above, and the second a patti of 15 biswas.

(2.) Upon plaintiff's instituting the suit, out of which this appeal arises, for his share of the profits which accrued duo and payable on account of the years 1309 to 1311 Fasli, the defendant, now appellant, pleaded inter alia that certain plots which originally formed part of the 15 biswa patti, had been wrongly included in the 5 biswa patti. If these plots were taken out, it would be found that the respondent was entitled to no profits in the years in dispute. The suit was instituted on the 11 day of April, 1905, in the court of the Assistant Collector. This officer without framing any issue upon the plea above mentioned, as raised by the appellant, gave the respondent on the 10 of May 1905, a decree but not for the full amount claimed by him for reasons with which I am not concerned in this appeal.

(3.) The plaintiff filed an appeal to recover the amount which had not been decreed and the defendant in a memorandum of objections again raised the plea already mentioned. On the 2 August, 1905, the District Judge by an order passed under Section 566 of the Civil P. C. directed the Assistant Collector to try the issue raised in defendant's written statement and on the 24th of March 1906, he returned a finding to the effect that there was no evidence on the file that there had been any interchange of plots between the two pattis.