N.R. Chatterjea, J.
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.
4. The plaintiff has appealed to this Court, and it is contended on her behalf that the learned Subordinate Judge was wrong in excluding from his consideration the title-deeds and other documents, which show that the mango garden was exclusively in the possession of her vendors, and that the Judge was wrong in holding that there was not 'a tittle of evidence' to show that the plaintiff's predecessor in title was in exclusive possession of the land.
5. There is no doubt that the learned Subordinate Judge has considered some of the documents in connection with the question of partition, and so far as the question of exclusive possession is concerned, he disbelieved the oral evidence for the plaintiff. But referring to a certain mortgage and katkobala he says: 'It was not till the mortgage and katkobala were executed in favour of the plaintiff's husband that we come to the case of exclusive possession of the land by Nur Ali's son Hossain Ali and his daughter in law Noachi Bibi. But these documents are not admissible against the defendant No. 1 or his predecessors, who were strangers to these documents.' The learned Subordinate Judge is in error in holding that the documents are inadmissible against the defendant No. 1 or his predecessor. The decision to which he refers has no application to the present case.
6. The documents relied upon are the title deeds under which the plaintiff claims: and in those documents title to, and possession of, the land in dispute were asserted on behalf of the plaintiff's predecessor in title. They are, therefore, evidence in favour of the plaintiff and against the defendant.
7. The learned Pleader for the respondent also says that the above observation of the learned Subordinate Judge is erroneous, but it is contended by him that that does not affect the decision because in the earlier part of the judgment he has referred to, and considered, most of the documents and rejected them on the grounds stated in the judgment.
8. The learned Subordinate Judge appears to have considered the documents in connection with the question of partition but so far as the exclusive possession is concerned, he does not seem to have considered them because in his opinion they were not admissible in evidence.
9. In the very next passage he says: 'There is not a tittle of evidence on the record from which I can safely conclude that Hossain Ali and his legal representatives and Noachi Bibi were in exclusive possession of the land.' Now, this conclusion must have been arrived at by him after excluding the documents which, in his opinion, were inadmissible in evidence.
10. The learned Munsif says: 'I find from a series of old registered documents and also from old collection papers and chiita filed by the plaintiffs that the land in suit which has been proved by unrebutted evidence to be known as tin takia amra bagicha was dealt with as appertaining exclusively to Nur Ali's hisya by his sons and their transferees (see Exhibits 2, 2A, and 6).'
11. Then again he observes that 'the plaintiff was in possession of the land in suit to the exclusion of all heirs of Nur Ali for at least the last 22 years.' There is also a statement made by the defendant's vendor, (summoned as a witness in the case) that there was a separate hisya of Nur Ali and Sher Ali and that this dag was allotted to Nur Ali's hisya.
12. The learned Subordinate Judge no doubt has come to the finding that the exclusive possession on the part of the plaintiff's vendor had not been proved. This finding could not be interfered with in second appeal, were it not for the fact that the learned Subordinate Judge says that the documents katkobalas and others, upon which the Munsif came to a finding in favour of the plaintiff, were inadmissible in evidence: and as already stated, although they were considered by the learned Subordinate Judge in connection with the question of partition, they were not considered by him in connection with the question of exclusive possession: I think that they should be considered in connection with the question of possession.
13. The next contention on behalf of the appellant is that the learned Subordinate Judge was wrong in holding that the defendant being a co sharer, no question of adverse possession could arise. The learned Judge says:
The defendant No. 2 is a co-sharer of the land. Such possession by the plaintiff was not adverse to the defendant No. 1 and his predecessor until a hostile claim was set up by her to their knowledge.
14. No doubt, possession by one co-sharer is not hostile to the other co-sharers unless there is ouster, or a hostile title is set up to their knowledge. But in the present case it is contended that the plaintiff purchased a certain share more than 12 years before the suit and had khas possession to the exclusion of the other co-sharers and that there was in fact an ouster of the defendant. This matter should also be gone into by the lower Appellate Court, if the question of exclusive possession is found in favour of the plaintiff on the whole evidence including those held to be inadmissible by the Court below. Lastly, it has been contended that the defendants not having claimed any title to more than 2 annas share of the garden, the plaintiff's title to the remaining fourteen annas share ought to have been declared.
15. The respondent has no objection to a declaration of the plaintiff's title to the 14 annas, but he says that there is no cause of action with regard to this 14 annas. The defendants, however, do not claim anything more than 2 annas. Under the circumstances, a declaration might be made in favour of the plaintiff in respect of the 14 annas of the garden in any case.
16. In these circumstances I think that the case should be sent back to the lower Appellate Court in order that the Court may take into consideration all the evidence on the record and then dispose of the appeal according to law.
17. Costs will abide the result.