Judgment

HEGDE, J.: - This is an appeal by certificate. The defendant No. 1 is the appellant in this appeal. Respondent No. 1 is the plaintiff in the suit. The material facts of the case are as follows:

2. Respondent No. 1 purchased Touzi No. 6 in Mahal Roynagar in a sale under Act XI of 1859 on January 6, 1936. That sale took effect from September 29, 1935. He took delivery of possession of the property purchased by him through the Collector of 24, Parganas on June 4, 1936. Thereafter he got his name registered under the Land Registration Act in substitution of the name of the previous recorded proprietor. According to Respondent No. 1 he had a share in the suit property, but as his claim was denied by the appellant, he instituted a title suit in the Court of the Subordinate Judge, Alipore against the appellant and others for declaration of his title and for joint possession to an undivided 1 anna 3 gondas share in 74 Bighas 4 Cottahs of land in premises No. 2, Judge s Court Road, Alipore, Calcutta which comprised former premises Nos. 5, 5/1 and 6, Alipore Lane and Nos. 13 and 14 of Bainabpara Lane and mesne profits. During the pendency of the suit 2 Bighas 1 Cottahs of land out of the suit lands were acquired by the Government. Thereupon Respondent No. 1 got his plaint amended and confined the relief asked for to 72 Bighas and 3 Cottahs but he claimed a decree against the appellant for a proportionate share i.e., Rs. 17,609-6-0 from out of the compensation amount paid for the lands acquired. The suit lands are in Mouja Alipore. According to the respondent they are joint lands of Toujis Nos. 1 to 6, 8 to 18, 33, 51, 53 and 91 of the 24 Parganas District excepting 2 Blocks of separately demarcated lands which are in Touji No. 1070.

3. The appellant denied the plaintiffs claim that the suit lands or any portion thereof were parts of Touji No. 6. According to him they were of his exclusive ownership and the plaintiff had no right, title or interest therein. In the alternative he pleaded that he had acquired permanent rights in those lands by being in exclusive possession thereof for a long time and further that Toujis Nos. 33 and 53 were divided. The other pleas taken by him and pressed in this Court will be considered at the appropriate stage.

4. The trial Court came to the conclusion that 51 Bighas, 17 Cottahs 1 Chittak in Mouja Alipore were joint lands of Touzis 1 to 6, 8 to 18, 33, 51, 53 and 91 and respondent No. 1 had title to an undivided 1 anna,3 gondas share therein as owner of Touji No. 6. Consequently it gave to respondent No. 1 a decree for joint possession with the appellant of his undivided 1 anna 3 gondas share and mesne profits. Further it decreed the 1st respondent s claim for his share in the compensation amount. The Court rejected the defendant No. 1 s plea that Toujis 38 and 53 were divided.

5. Defendant No. 1 appealed to the High Court of Calcutta against the judgment and decree of the trial Court. The High Court agreeing with the trial Court held that the division pleaded by the defendant No. 1 is not true. It also came to the conclusion that Mouja Alipore were the joint lands of Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91. But on an examination of the oral and documentary evidence, it held that the extent of joint lands was only 25 Bighas 5 Cottahs 1 Chittak and 45 Sq. Feet. Accordingly it gave the plaintiff a decree for joint possession in respect of 1 anna 3 gondas share in respect of those lands. It also decreed mesne profits but the amount of mesne profits was left to be determined by separate proceedings. It confirmed the decree of the trial Court as regards respondent No.1 s share in the compensation amount.

6. Both the trial Court and the High Court have concurrency come to the conclusion that 25 Bighas 2 Cottahs 1 Chittak and 45 Sq. Feet in Mouja Alipore are joint lands pertaining to Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91. This Court does not ordinarily interfere with the concurrent findings of fact rea