1. These two appeals arise out of a partition suit, No. 1913 being preferred by the plaintiff and No. 1957 by defendants Nos. 2 and 3, The question in the former is whether the appellant is entitled to her share (1/4 th) in plot No. 1 of the schedule to the plaint, being a plot of Bhadrason or homestead measuring some 1 1/2 bighas in area, and the question in the latter appeal is whether she is entitled to the same share in the ancestral house of 3 rooms standing on the said plot.
2. The plot appertains to Taluk No. 2510 and the contention of defendants Nos. 2 and 3 is that by a hobalas dated 7th Asar 1315, the plaintiff sold to one Satish Chandra Bhattacharjee (the son of plaintiff's father-in-law's sister) her interest in this Taluk and, therefore, in the Plot now in question. The plaintiff on the other hand says that the Bhadrason and the Bhadrason Bati were excluded from the sale which covered only the agricultural lands.
3. In the Court of first appeal the case proceeded on the assumption that the provisions of Section 92 excluding oral evidence applied to the case. But that is not so; defendants Nos. 2 and 3 are no parties to the deed Satish Chandra Bhattacharjee the vendee has in this Court been made a party to the suit and he has filed a written statement supporting the plaintiff and disclaiming all interest in the Bhadra son and the house thereon. Defendants Nos. 2 and 3 are admittedly not entitled to the plaintiff's share in the property now in question and Satish being now a party it would be possible in the case to direct that the 1/4th share in question should be allotted to the plaintiff and Satish jointly. But this, in our opinion, is unnecessary; Satish's written statement, the improbability of a sale by the plaintiff of her house, and the documents, and other matters relied on by the Subordinate Judge justify us in holding that the property in question, being regarded as a separate parcel, was excluded from, the sale to Satish.
4. In this view No. 1957 is dismissed with costs. The decree of the first Appellate Court in respect of the Bhadrason is reversed and the decree of the Subordinate Judge restored. Appeal No. 1913 is therefore, decreed with costs.
5. Newbould, J.--I Agree.