NITYA KALI DUTT Vs. SARAT CHANDRA BOSE

JUDGEMENT

(1.) The appeal arises oat of a suit for a declaration of the plaintiff s title to, and recovery of possession of a mango garden known as tin takia amra bagicha.

(2.) The garden appertains to a taluq which, it is admitted by both parties, was amicably partitioned with three hisyas, namely, one of 8 1/2 annas, another of 5 1/2 annas and a third of 2-annas share. The plaintiff s case is that the 8 1/2-annas share again was amicably divided between two brothers Nur Ali and Sher Ali and that the disputed garden fell into the share of Nur Ali who held it as his khamar.

(3.) The Court of first instance found that although there was no formal partition, the whole garden was in the exclusive possession of Nur Ali and his heirs. On appeal, the learned Subordinate Judge came to the conclusion that the plaintiff had failed to prove either an actual partition or that the garden had been in the exclusive possession of her vendor Nur Ali and his heirs.