Mookerjee -:J. This appeal is by the plaintiff. It arises out of a suit for partition. 2. The suit was decreed by the learned Munsif who accepted the plaintiff's claim of his half-share in the disputed properties and granted him partition on that basis. 3. On appeal, the said decision was reversed by the learned Additional Subordinate Judge and the plaintiff's suit was dismissed. Against this appellate decision, the present second appeal has been taken by the plaintiff. 4. The relevant facts lie within a short compass. 5. The suit lands admittedly belonged to one Jogen Pal who left three sons, Dinu, Madhu and Fakir as his heirs. Dinu died, leaving the defendant, Ramhari who is respondent No.1 before us, as his son and heir, Madhu also is dead and thereafter, his widow Surji also died and, of his two daughters, Bhadri and Guni, Bhadri is dead and Guni is, admittedly, deaf and dumb since birth. 6. On the above facts, the plaintiff, Fakir Chandra Pal claimed half-share in the disputed properties, which claim was accepted by the learned Munsif, as stated hereinbefore, and he got a partition decree from the said learned Judge on that footing. On the decision of the lower Appellate Court, his suit has been dismissed. 7. The principal defence was a defence of previous partition between the three brothers, Dinu, Madhu and Fakir, in which according to the defence, Fakir got a separate allotment and Dinu and Madhu a joint allotment. In the District settlement records of 1919, Fakir's separate possession is recorded in respect of practically the whole of his Ij3rd share as one of the above three brothers, except C. S. Plot No. 1367, the bank of a tank, and C. S. Plot No, 1371, a khamar, and, apparently not practically particle. Madhu and Dinu's possession was recorded jointly in respect of the other plots. The defence of previous partition was negatived by the learned Munsif but was accepted by the learned Additional Subordinate Judge. This view of the learned Additional Subordinate Judge has been seriously challenged before us and it has been strongly urged by Mr. Guha that, on the evidence before the Court, the learned Additional Subordinate Judge erred in law in accepting the said defence of previous partition as between Dinu and Madhu on the one hand and Fakir on the other. 8. We are not impressed by this argument. Guha that, on the evidence before the Court, the learned Additional Subordinate Judge erred in law in accepting the said defence of previous partition as between Dinu and Madhu on the one hand and Fakir on the other. 8. We are not impressed by this argument. The learned Additional Subordinate Judge has referred, in the above connection to several documents, a mortgage, two pattans and certain objections filed by Fakir in proceedings under section 44 of the West Bengal Estates Acquisition Act. In our view, on a far reading of the above documents and on a consideration of the legal position as arising therefrom, the view of the reamed Additional Subordinate Judge that there was a previous partition as between the three brothers, as alleged by the defence, should be accepted. It is also to be remembered in this connection, as already sufficiently indicated, that the separate possession of Fakir has been recorded in the relevant settlement records consistently with his share at the time. This was beyond forty years from the date of the suit, and, in the circumstances, a presumption would arise that the said separate possession was on the basis of a partition. This sufficiently confirms the view of the learned Additiona1 Subordinate Judge about the previous partition, alleged by the defence, and his acceptance of the same must be affirmed by us. 9. That, however, would not mean an end of the plaintiff's claim. On the facts, already stated, the plaintiff's claim. On the facts, already stated, the plaintiff would still have half share by inheritance in respect Madhu's properties and Madhu's properties admittedly, remained of joint with Dinu, the predecessor of respondent No.1 and, after his death, with the said respondent. In the said joint properties, or properties recorded jointly in the names of Madhu and Dinu in the district settlement records, the plaintiff Fakir would, by reason of the above inheritance, have 1/4th share, that being half of Madhu's half share in the said properties. This 1/4th share has not, admittedly, been partitioned between the parties. In the said joint properties, or properties recorded jointly in the names of Madhu and Dinu in the district settlement records, the plaintiff Fakir would, by reason of the above inheritance, have 1/4th share, that being half of Madhu's half share in the said properties. This 1/4th share has not, admittedly, been partitioned between the parties. The relevant defence on this point, however, was that Madhu's properties were actually held by the respondent No.1 under a settlement from Madhu's widow Surji and, although the said settlement for a period of nine years from 1330 to 1338 B.S. the said respondent No.1 continued to hold over after the expiry of the said period and had all along been in possession on that footing. If this holding over be proved, them, of course, the plaintiff would be entit1ed only to the landlord's interest in respect of half of Madhu's shale; but that also would not be available to him, as the said interest has, under the Estates Acquisition Act, vested in the State. On the record however, there is no evidence worth the name in support of the above story of holding ever. The learned Munsif actually negatived this claim of holding over and the learned Additional Subordinate Judge does not say anything to the contrary beyond stating that the said point is a debatable one. We find, however, as we have already stated above, no evidence, worth the name, in support of the said story of holding over; on the other band, the revisional settlement records completely go against the solid storey. In these circumstances, the defence shortly of holding over cannot be accepted. 10. There was also in the defence a plea of acquisition of title, or, at least, of a tenancy by adverse possession. But the said plea is to bound Ito fail, as, after the expiry of the above periodic lease., and in the absence of any evidence of holding over, the possession of Dinu or of Ramhari may well be attributed to his status as a co-sharer owner of the properties. In such circumstances, the question of adverse possession or acquisition of title or tenancy by prescription would not arise. In such circumstances, the question of adverse possession or acquisition of title or tenancy by prescription would not arise. The result then would be that tile properties of Madhu and Dinu, or, in other words, the properties, which are recorded in their joint possession in the settlement records of 1919, would be available for partition to the plaintiff on the footing that he has 1/4th share in the same and, to this extent his claim for partition should he allowed. 11. We would, accordingly, allow this appeal in part and modify the judgment and decree of the learned Additional Subordinate Judge by decreeing the plaintiff's suit in respect of 1/4th share of the properties, recorded in the joint possession of Dinu and Madhu in the settlement records of 1919, and pass a preliminary decree on that footing, making it dear that neither C.S. Plot No. 1361 nor C.S. Plot No. 1371 would be the subject-matter of the said partition. 12. It will be now for the learned trial Judge to pass an appropriate preliminary decree for partition in favour of the plaintiff on the above terms. 13. There will be no order for costs up till this stage. Future costs will be in the discretion of the learned trial Judge and will be awarded on considerations, relevant in a partition proceeding. 14. Before concluding, we ought to refer to one other aspect, as Appearing below. 15. A point was raised by Mr. Guha that, on the evidence of the defendant himself that there was some writing of partition at the time of the alleged previous partition, no evidence on the point except the said writing was relevant under or in view of section 91 of the Indian Evidence Act. We are unable to accept this argument on its face value. Section 91 only precludes "other evidence" except the writing in question on the terms of the particular transaction, to writ, the alleged partition in the instant case; it does not, however, preclude such "other evidence" with regard to the factum of the particular transaction or the alleged partition in the instant Case. The factum of the said alleged previous partition would, therefore be provable by such other evidence and that was what, in essence, was held 'by the learned Additional Subordinate Judge. The factum of the said alleged previous partition would, therefore be provable by such other evidence and that was what, in essence, was held 'by the learned Additional Subordinate Judge. Accordingly, the decision of the said learned Judge does not suffer from non-compliance .or contravention of the aforesaid statutory provision. That, again, is enough for purposes of the instant case, as all that is necessary to be proved, is the existence of a previous partition and no more. Reference in the above connection may be made to the decision of the Privy Council in (1) Ram Rattan v. Parma Nand, reported in 50 CWN 367, which is an authority, at least, for the above point of view of the legal position emanating therefrom. Chakravarti,. J; agree.