JUDGMENT : Nishita Mhatre, J. The Municipality of Katwa through its board of Councillors has filed the present appeal against the decision of the Civil Judge, Senior Division, Katwa, Burdwan in Title Suit no.30 of 1991, a suit for partition which was filed by the original Respondent No.1. The Trial Court has decreed the suit with costs. It has declared that the Plaintiff’s share in the suit property is 17 decimals and that the appellant, i.e., the Defendant No.2, was entitled to 8 decimals whereas the Defendants No.3 and 4 were entitled to 17 decimals and the Defendant No.5 was entitled to 1 decimal in the suit property. As the suit property was required to be partitioned by metes and bounds, the Trial Court passed the preliminary decree and directed that a Commissioner be appointed for partitioning the same on the basis of the preliminary decree. The Commissioner was directed to assess the valuation of the excess share in possession of the defendants which is to be delivered to the Plaintiff. 2. The suit plot No. 613 measuring 43 decimals was originally owned by one Bholanath Das. He transferred 8 decimals from this undivided land to the Town Hall as well as the Katwa Municipality by a registered Sale Deed. Later, he transferred the remaining 35 decimals of undivided land to the Plaintiff by virtue of a registered Sale Deed, dated 7th June, 1958. The Plaintiff then transferred 17 decimals of land, which she owned, to Defendant No.3 by a registered Deed of Gift dated 19th April, 1961. The Defendant No.4 acquired a portion of the suit land from the Defendant No.3. Defendants No.3 and 4 are Co-operative Societies. The Plaintiff later transferred 1 decimal of undivided land to the Defendant No.5 by a registered Deed of Gift. The land was never partitioned amongst the cosharers, which included both the Katwa Municipality and the Plaintiff. The Plaintiff/Respondent No.1 claimed that the Defendants in collusion with each other were trying to raise a construction which encroached upon her land. As the Defendants refused to partition the suit property by metes and bounds, the Plaintiff/Respondent No.1 was left with no other alternative but to file a suit for partition before the Trial Court. 3. The Plaintiff/Respondent No.1 claimed that the Defendants in collusion with each other were trying to raise a construction which encroached upon her land. As the Defendants refused to partition the suit property by metes and bounds, the Plaintiff/Respondent No.1 was left with no other alternative but to file a suit for partition before the Trial Court. 3. Defendant No.2, i.e. the Katwa Municipality (the Appellant herein), pleaded in its written statement that its share in the suit plot was 11 decimals, out of which a municipal road was constructed over half a decimal. The Municipality further pleaded that the remaining ten-and-half decimals of land were covered by buildings namely an auditorium – Nazrul Mancha and a shopping centre. 4. The Defendants No.3 and 4 filed a joint written statement and contended that they were in possession of a well demarcated area measuring 1.13 decimals. The Defendant No.4 had raised a two-storied building of the Katwa Sub-Division Library over this ‘Kha’ Scheduled property. 5. The Defendant No.5 contended that it possessed 4 decimals of land since March, 1973 after constructing the club room on the land. 6. The Trial Court, on the basis of the evidence led before it by the parties, concluded that 8 decimals out of the suit property, which admeasures 43 decimals, had been transferred by the original owner of the suit land, namely, Bholanath Das, to the Katwa Municipality. The Trial Court accepted the registered sale deed of 7th June, 1958 which proved the sale of land to the Municipality. The Trial Court further observed that there could be no dispute that the Plaintiff (Respondent No.1 herein) and the Defendants were co-sharers of the suit property and that each of them was entitled to a certain area in the suit property. 7. On considering the pleadings and the evidence on record, the Trial Court found that the Municipality was entitled to only 8 decimals of the undivided property. The Plaintiff’s share in the undivided property was declared to be 17 decimals. The Court observed that since the buildings had already been erected upon land which was in excess of the entitlement of the Municipality, the Plaintiff would have to be compensated by payment of money. 8. Aggrieved by the decision of the Trial Court, the Municipality has filed the present appeal. 9. Mr. The Court observed that since the buildings had already been erected upon land which was in excess of the entitlement of the Municipality, the Plaintiff would have to be compensated by payment of money. 8. Aggrieved by the decision of the Trial Court, the Municipality has filed the present appeal. 9. Mr. Mukherjee, the learned Counsel for the Municipality, submits that the Municipality is not a co-sharer of the land. According to him, the Plaintiff’s witnesses have admitted in their evidence that the land has already been demarcated because each of them have conceded that there are several buildings constructed on the suit property. He further submits that the question of demarcating the areas of the Plaintiff and the Defendants respectively at this stage does not arise. According to Mr. Mukherjee, assuming the Municipality was in occupation of an excess area of land as compared to its share determined by the Trial Court, the Municipality would, at best, be occupying 1 decimal more than its share in the suit property. He pointed out the order of this Court dated 8th November, 2006 to submit that this Court had accepted the statement made on behalf of the Municipality that it owned slightly more than one cottah of land in the suit property and that the plaintiff could be compensated by obtaining the true valuation of the property. The last submission of Mr. Mukherjee, which is based on the judgment of the Division Bench in FA 221 of 1998, is that the Plaintiff ought to have filed a suit for possession of property rather than a suit for partition, especially since the Plaintiff and the Defendants are not co-sharers. 10. We have, with the assistance of the learned Counsel for the parties, perused the pleadings and the evidence led before the Trial Court. We have also examined critically the judgment of the Trial Court. We have not found any error in the Trial Court’s determination. 11. The submission of Mr. Mukherjee that the Plaintiff and the Defendants were not co-sharers is not borne out from the pleadings in evidence on record. The suit land was owned by Bholanath Das, who sold part of it by separate sale deeds to the Municipality, the Plaintiff and other Defendants. There is no material on record evidencing that the suit land was ever demarcated by metes and bounds. The suit land was owned by Bholanath Das, who sold part of it by separate sale deeds to the Municipality, the Plaintiff and other Defendants. There is no material on record evidencing that the suit land was ever demarcated by metes and bounds. There is no dispute that there are some structures on the suit property, including a club building, an auditorium and a shopping centre. However this would necessarily indicate that the suit property was demarcated by metes and bounds before the structures were erected. Therefore, the finding of the Trial Court that the suit property is undivided and that the Plaintiff and the Defendants are co-sharers cannot be faulted. 12. The shares of the Plaintiff and the Defendants in the suit property have been determined by the Trial Court. As mentioned earlier, the Municipality is only entitled to 8 decimals in the undivided property. As there was never any partition by metes and bounds amongst the co-sharers, the Trial Court has rightly directed the appointment of a Commissioner after declaring the shares of each of the co-sharers. Without the appointment of a Commissioner, it would be impossible to ascertain whether the Municipality is holding more than its share of 8 decimals. It is true that while passing the order dated 8th November, 2006 this Court had recorded the statement of the Advocate for the Municipality that it was holding slightly over more than one cottah of its share in the suit property. However this Court only accepted the statement made on behalf of the Municipality that it was prepared to pay the price of the excess land occupied by it. The Court, while passing the order dated 8th November, 2006, has not given any finding that the excess land held by the Municipality is only to the extent of one cottah, as claimed by its Advocate. Merely because the Court had directed the Sub-Registrar, Katwa to submit the valuation of the vacant land situated adjacent to the Town Hall that would not mean that the Court had accepted the Municipality’s contention that it held only one cottah of excess land. 13. It is impossible to determine the excess land occupied by the Municipality unless the Commissioner is appointed. 13. It is impossible to determine the excess land occupied by the Municipality unless the Commissioner is appointed. In fact, in its pleadings the Municipality at one stage has stated that it occupies 11 decimals of land; at another place it has contended that it occupied ten-and-half decimals of land. Be that as it may, the share to which the Municipality is entitled to is only 8 decimals. Therefore, it would be necessary to partition the property and to determine exactly the area of the excess land held by the Municipality. The Trial Court has rightly observed that if it is found that the excess land is occupied by buildings and other structures constructed by the Municipality, the Municipality would have to compensate the Plaintiff for the reduced land which she would thus be allotted. 14. The contention of Mr. Mukherjee that the Plaintiff ought to have filed the suit for possession rather than for a partition is unfounded. The judgment relied on by the learned Counsel in the case of Sri Rabi Kumar Das v. Sri Chittaranjan Das & Others [F.A. No.221 of 1998], decided on 30th June, 2006 does not support this contention. The facts in that judgment were completely different. The Court found that the Plaintiffs and Defendant were not co-sharers as the property had already been partitioned. In these circumstances, the Court observed that the appropriate remedy for the plaintiffs in that case was to file a suit for recovery of possession and not a suit for partition. In the present case, we have found that the Plaintiff and the Defendants were all co-sharers of undivided property. The Municipality was not able to prove its contention that it was a demarcated property that they were in possession of. In fact, no such pleading is found in the written statement filed by the Municipality. Mr. Mukherjee fairly admitted that such a ground has not been raised in the present appeal either. Therefore, the contention that the suit property was demarcated by metes and bounds cannot be accepted and the judgment in Rabi Kumar Das’s case has no application to the facts in the present case. 15. We have no reason to interfere with the findings recorded by the Trial Court. It has considered the pleadings and the evidence on record in the correct perspective and in accordance with law. 15. We have no reason to interfere with the findings recorded by the Trial Court. It has considered the pleadings and the evidence on record in the correct perspective and in accordance with law. Therefore, we confirm the judgment and decree of the Trial Court. 16. In these circumstances, the parties would be at liberty to apply before the Trial Court for appointment of a Commissioner in accordance with the preliminary decree passed by the Trial Court for effecting partition of the suit property by metes and bounds, as held by the Trial Court. In case it is found that the Municipality is in possession of excess land, it shall compensate the Plaintiff on the basis of prevailing market value. 17. The Appeal is dismissed with no order as to costs. 18. LCR be sent to the Trial Court. 19. Photostat certified copy of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all necessary formalities. Asha Arora, J. - I agree.