JUDGMENT

1. This appeal arises out of proceedings in effectuation of a partition decree.

2. One of the plots No. 40 fell to the share of the defendant No. 1. There is an orchard,, upon this plot. The defendants Nos. 3 and 4 claimed to have been in possession of this orchard as their own and they applied to the officer making the partition for assessing a fair and equitable rent upon this plot so that they might continue to possess it as before, paying the rent fixed to the defendant No. 1.

3. The first Court found that their possession was not; made out. The lower appellate Court, however, upon the evidence, found that their exclusive possession had been made out.

4. It appears from the record that this exclusive possession was of a long duration and the only question is whether the Civil Court has any power to assess fair and equitable rents upon any plots of land under circumstances obtaining in this case.

5. It is provided by Sections 64 and 65 of the Estates Partition Act (V of 1897) that the partitioning officer may assess a fair rent upon dwelling houses, gardens, etc., which had 1)3611 in exclusive possession of one of the co-sharers, falling into the patti of another osharer. It