Judgement JUDGMENT:- This appeal by defendants Nos.3 and 4, who will hereinafter he called the defendants, is directed against the judgment and decree passed by the Assistant District Judge, Gauhati, in Title Appeal No.88/66. The plaintiffs case in brief is that she is the daughter of one Hemrath Dutta Choudhury, who had purchased the suit land by registered deed dated 26-8-48 for Rs.300/-. Hemrath, during his lifetime, made a gift of the suit land to her at the time of her marriage and she has been ever since in undisturbed possession of the land. But as defendants Nos.3 and 4 threatened to disturb her possession, proceedings were drawn up under Section 145, Cr.P.C. and ultimately possession of the suit land was declared in favour of the defendants. Hence she filed the suit for declaration of her title and khas possession. 2. The suit land has been described in the plaint as "land measuring 3K-7L which is a part of 4B-2K-18L of the land in Dag No.129 out of a total 53B-4-K-13-L of land in K.P. Patta No.38 of 1923-24 of Kukuabarabari village, Mouza Sariha, in Barpeta Sub-division along with a thatched house constructed by the plaintiff and its accessories". The land has been further described to be within four specific boundaries mentioned in the schedule to the plaint. It has further been stated that the suit land is now covered by Dag No.123 of K.P. Patta No.9 (new) and a sketch map has been attached showing the situation of the land within the boundaries. 3. The defendants have filed a joint written statement. They are the sons of one Gunaram Dutta, one of the original co-sharers of the patta in question. Their plea, inter alia, is that the land is ejmali and the plaintiff cannot get any relief without partition of the estate. They also deny the title of the plaintiff to the suit land. 4. The learned Munsiff framed altogether six issues of which we are concerned with only two, namely,- Issue 3. "What right, title and interest the plaintiff has got over the suit land." Issue 4. "What relief, if any, the parties are entitled." 5. The learned Munsiff after trial decreed the suit. On appeal, the decree was upheld by the learned Assistant District Judge. Hence this second appeal. 6. Learned Counsel appearing on behalf of the appellants urges two points before me. "What relief, if any, the parties are entitled." 5. The learned Munsiff after trial decreed the suit. On appeal, the decree was upheld by the learned Assistant District Judge. Hence this second appeal. 6. Learned Counsel appearing on behalf of the appellants urges two points before me. Firstly, that the alleged gift by Hemrath to the plaintiff is invalid as it was not effected by a registered deed secondly, that without partition, the plaintiff is not entitled to get a decree for khas possession. 7. It does not appear from record whether the alleged gift by Hemrath to the plaintiff was by any registered deed. The plaintiff in Para 2 of her plaint stated, "Later on, when Hemrath Dutta Choudbury made a gift of the said 3K-7L of the land to this plaintiff, i.e., his daughter Srimati Hironmoyee, and delivered possession thereof, she has been keeping it under her possession and has been paying revenue." The defendants in para 5 of the written statement have made a general denial of the plaintiffs allegation. But it was not specifically denied by them that the gift was not by a registered deed. Whether the gift is valid or not is a question of fact. It needs investigation. As this point was not specifically taken in the written statement and no issue was framed, the court below naturally gave no finding on it. This point of fact cannot be allowed to be urged in the second appeal. The only point urged before the Lower Appellate Court was whether the plaintiff had title and possession over the suit land within 12 years before the institution of the suit. 8. Admittedly Bhabani, Chanaram and Mustt. Lahopriya were the co-sharers of Dag No.129 with an area of 4B-2K-18L covered by Patta No.38, which has been proved as Ext.2 in the case. Patta No.38 has 14 dags with a total area of 53B-4K-13L. The learned Lower Appellate Court has found that Padmanath purchased the suit land on 24-3-32 and his name was recorded in the records of rights. After Padmanaths death, the name of his son, Mahesh, was recorded and Mahesh continued to be one of the co-pattadars from 1933 to 1049. Patta No.38 has 14 dags with a total area of 53B-4K-13L. The learned Lower Appellate Court has found that Padmanath purchased the suit land on 24-3-32 and his name was recorded in the records of rights. After Padmanaths death, the name of his son, Mahesh, was recorded and Mahesh continued to be one of the co-pattadars from 1933 to 1049. Exts.B, C, D and E are the revenue sale notices for the sale of Patta No.38 and in those notices the name of Mahesh was shown as one of the co-sharers along with defendants and others. These notices show that the arrears of revenue were for the years 1942, 1947 and 1949. After considering all these documents, as well as oral evidence on record, the learned Judge has found that Mahesh had good title over the suit land. On 26-8-48, Mahesh sold the land to Hemrath, father of the plaintiff, by a registered sale deed Ext.1. Mahesh has been examined in the case as P.W.2 and he has proved Ext.1. Plaintiff examined herself in the suit and she deposed on the aforesaid gift her name was mutated on 15-6-54 by right of gift. This has been proved by Ext.2. All the heirs of Hemrath were made parties to the suit as defendants Nos.12 to 16 and they have not only not denied the aforesaid gift, but on the contrary, they have supported the plaintiffs claim. On a consideration of the entire evidence on record, both the courts below have concurrently found that the plaintiff derived title to the suit land. However erroneous a finding of fact may be, it cannot be upset in a second appeal. 9. The second submission of learned Counsel is that in the present suit, the plaintiff is not entitled to get a decree in respect of the suit land. As stated earlier, the suit patta contains a number of dags including Dag No.129, with a total area of 53B-4K-1SL. Dag No.129 itself contains a total area of 4B-2K-18L. The learned Lower Appellate Court has found that the defendants have lands in other dags as well as in Dag No.129 and the defendants and some others as well as the plaintiff are the co-sharers of the suit patta. Dag No.129 itself contains a total area of 4B-2K-18L. The learned Lower Appellate Court has found that the defendants have lands in other dags as well as in Dag No.129 and the defendants and some others as well as the plaintiff are the co-sharers of the suit patta. In the circumstances, without a suit for partition, the share of the plaintiff alone cannot be determined except in a suit for partition; as such the plaintiffs claim to 3K-7L of land only in a specified plot in Dag No. 129 as shown in the sketch map attached to the plaint is not sustainable. 10. In the circumstances, the plaintiffs suit fails and dismissed. In the result, this appeal is allowed, the judgments and decrees of the learned courts below are set aside. I, however, make no order as to costs. Appeal allowed.