JUDGMENT : Heard Mr. P.S. Deka, the learned senior counsel assisted by Mr.P. Bhattacharya, the learned counsel appearing on behalf of the Appellant. None appeared on behalf of the respondent on call. 2. This Court vide an order dated 16/2/2009 admitted the instant appeal on the following three substantial questions of law which read as under :- “1. Whether the passing of the decree of the plaintiffs’ suit for declaration of right, title and interest and partition of his share without ascertain the share of other co-sharer and without passed a preliminary decree us hit by the provision of Rule 18 of Order 20 and Section 54 of the Code of Civil Procedure, 1908 ? 2. Whether the finding of the learned lower appellate court mainly based on the finding of the trial court under issue No. 3 and 4 was just and proper against a decree passed for partition in exercise of power under Section 54 of the Code of Civil Procedure, 1908 ? 3. Whether both the courts below committed an error of law in declaring the share of the plaintiffs only without considering the other interest in property ?” 3. For the purpose of ascertaining as to whether the said substantial questions of law are involved in the instant appeal, it would be relevant to take note of the facts of the instant case. For the purpose of convenience, the parties herein are referred to as the same status they stood before the Trial Court. 4. The plaintiffs had filed a suit which was initially registered and numbered as Title Suit No. 3/2003 and subsequently reregistered and renumbered as Title Suit No. 125/2007. The case of the plaintiffs in brief is that 47 bighas 1katha 4 lechas of land covered by various dags under K.P. Patta No.697 at Howly town was settled in favour of Surya Kanta Choudhury, Gangadhar Choudhury and Bhaban Chandra Choudhury during the settlement operation of 1958-65. The suit land pertains to Dag No. 1238 of the said patta and admeasures a plot of land measuring 4 bigha 0 katha 12 lechas. The said plot of land have been described in Schedule A to the plaint. Out of the said Schedule-A plot of land, the plaintiff vide various purchase deeds either jointly or severally purchased 3bigha 1 katha 14 ? lechas of land. The said plot of land have been described in Schedule A to the plaint. Out of the said Schedule-A plot of land, the plaintiff vide various purchase deeds either jointly or severally purchased 3bigha 1 katha 14 ? lechas of land. The said plot of land as per the plaintiffs is a compact plot of land which have been more specifically described in Schedule A(I) to the plaint. It is the further case of the plaintiffs that the defendants had purchased 3kathas 13 lechas out of the Schedule-A land from the original pattadars. At this stage, it is pertinent to take note of that out of 4 bighas 0 katha 12 lechas, the total land sold was 4 bigha 0 katha 7 1/3 lechas and there remained approximately another 4 ? lechas of land in the said Dag in the name of the original pattadars. 5. On 27/3/2003, it has been alleged in the plaint that the defendants broke down the boundary bamboo fencing of the plaintiffs and forcefully started construction of a sanitary tank in the western part of the plaintiffs’ land. Upon protest made by the plaintiff, the defendants expressed that they had purchased 5 lechas of land and that is why they have every right to make such construction. It is the further case of the plaintiffs that the defendants have endangered the plaintiffs’ right, title and interest over the suit land and the common enjoyment of the suit land as co-sharer with the defendants is not possible, for which the suit was filed. The plaintiffs prayed for declaring that the plaintiffs had right, title and interest to the extent of 3 bighas 1 katha 14 ? lechas within the Schedule A land and as shown in Schedule A(I) to the plaint; that the suit land shown in Schedule A(I) be partitioned and placed under the separate and exclusive possession of the plaintiffs after partitioning by evicting the defendants therefrom and to effect such partition necessary order be sent to the Collector, Barpeta; for permanent injunction restraining the defendants from raising any construction on any part of the suit land shown in Schedule A till the partition of the land shown in Schedule A(I) is effected, for cost and other reasons. 6. The defendant No. 1 only had filed the written statement alongwith a counter claim. 6. The defendant No. 1 only had filed the written statement alongwith a counter claim. In the said written statement cum counter claim various preliminary objections were taken to the effect that there was no cause of action for the suit; that the suit was not maintainable as all the pattadars of the K.P. Patta No. 697 of village Howly town was not made parties to the suit; the suit was vague and uncertain and that the suit was undervalued and proper court fee had not been paid. On merits, the case of the plaintiffs set out in the plaint was denied. The counter claim set out by the defendant No. 1 was that the Dag No. 1238 under Periodic Patta No. 697 of Howly town originally belonged to one Surya Kanta Choudhury and he was in absolute possession thereof. The defendant No. 1 purchased 1 katha 5 lechas of land in Dag No. 1238 out of 4 bigha 0 katha 12 lechas out of the said dag with specific boundary vide a registered deed of sale bearing Deed No. 580/87 dated 2/4/1987. After purchasing the said land, the defendant No. 1 constructed his residence thereon with a sanitary latrine leaving 2 ft. of land from the eastern boundary. The defendant No. 1 further purchased 8 lechas of land from the said dag situated on the north of his land purchased on 2/4/1987 vide the registered Deed No.185/1995 dated 17/1/1995 and took possession accordingly. Thereafter the defendant further purchased from the legal heirs of late Surya Kanta Choudhury, namely Shri Kamal Choudhury, Shri Sanjay Choudhury and Smti. Mira Choudhury a plot of land measuring 4 ? lechas of land from the said dag on the north of the land purchased by the defendant No. 1 earlier vide the registered Deed No. 1498/02 dated 21/6/2002 and got possession thereof. It was therefore the specific case of the defendant No. 1 that he in total purchased 1 katha 17 ? lechas of land vide various deeds of sale as above mentioned which was a compact plot of land with the following boundaries:- North --Abdul Aziz Bhuyan & Mrs. Kahinoor Bhuyan. South --Sahadullan Md. Ajahar Ali, Hazrat Ali & Md. Mubarak Ali. East – Bhuban Zahuruddin, Mobarak & Moinal Haque. West – Road. 7. The said land of the defendant No. 1 was specifically described in Schedule I to the said counter claim. Kahinoor Bhuyan. South --Sahadullan Md. Ajahar Ali, Hazrat Ali & Md. Mubarak Ali. East – Bhuban Zahuruddin, Mobarak & Moinal Haque. West – Road. 7. The said land of the defendant No. 1 was specifically described in Schedule I to the said counter claim. It was specifically mentioned in the written statement that the land of the defendant No. 1 was in no manner connected with the land claimed by the plaintiffs as the boundary given in Schedule A (I) of the plaint does not touch any of the boundary of the defendant No. 1. Further to that, the defendant No. 1 claimed that he was entitled to a decree for partition over his land described in Schedule-I below so that there is no misunderstanding as regards the possession of the land as was finally settled. On the basis of the above, the defendant No. 1 sought for the following reliefs which are quoted herein below : “a) Dismiss the suit with cost. b) Declare that the defendant No. 1 has got right, title and interest over 1K-171/3 Ls of land by right of purchase and is in absolute possession thereof. c) Declare that the defendant No.1 is entitled to get a separate patta over the sold land described in Schedule-I of the counter claim and accordingly partition thereof. d) Issue precept directing the Revenue Authority to grant separate patta over the land described in Schedule-1 of the counter claim in favour of the defendant No. 1. e) Declare the cost of the countr claim as well as the suit against the plaintiff. f) Pass other relief or reliefs as may be deem fit and proper in this case.” 8. On the basis of the pleadings as many as 7 issues were framed on 13/12/2004 by the Trial Court. At this stage, it may be relevant herein to mention that the suit proceeded ex-parte against the defendant No. 2 on 7/4/2004 and the defendant No. 3 on 13/9/2004. Further to that, the plaintiffs did not file any additional written statement against the counter claim of the defendant No.1. The 7 issues so framed are as herein under :- (1) Whether there is any cause of action for the suit ? (2) Whether the suit is maintainable in the present form ? (3) Whether the plaintiffs have right, title and interest to the extent of 3 bighas 1 katha 14 ? The 7 issues so framed are as herein under :- (1) Whether there is any cause of action for the suit ? (2) Whether the suit is maintainable in the present form ? (3) Whether the plaintiffs have right, title and interest to the extent of 3 bighas 1 katha 14 ? lechas within the suit land as shown in Schedule A(I) of the plaint ? (4) Whether the defendant No. 1 has got right, title and interest over 1 katha 17 ½ lechas of land as described in Schedule I of the counter claim by right of purchase and is in absolute possession thereof ? (5) Whether the plaintiffs are entitled to a decree as prayed for ? (6) Whether the defendant No. 1 is entitled to a decree as prayed for ? (7) To what relief/reliefs, if any, the parties are entitled to ? 9. The records reveals that the plaintiffs adduced evidence of 2 witnesses and exhibited various documents marked as Exhibit 1 to 12. The defendants adduced the evidence of 3 witnesses and exhibited 4 documents as Exhibit “Ka” to Exhibit “Gha”. The Trial Court vide the judgment and decree dated 14th of June, 2007 had decreed the plaintiffs’ suit on contest as well as the counter claim of the defendants was also partially decreed. It was declared that the plaintiff had right, title and interest to the extent of 3 bighas 1 katha 14 1/3 lechas of land in Schedule-A land i.e. the Schedule A(I) and the defendants had right, title and interest upon 1 katha 17 1/3 lechas of land in A Schedule land which is subject to the measurement and demarcation of the plaintiffs’ land. The Revenue Authorities was directed to cause partition of the Schedule A land by giving priority to the plaintiffs’ land. If any encroachment of the latrine construction of the defendant was found, the same shall be evicted therefrom. 10. The Trial Court while deciding the issue No. 3, came to a finding that by virtue of Section 48 of the Transfer of Property Act, 1882, the plaintiffs had right, title and interest to the extent of 3 bighas 1 katha 14 ? lechas (i.e. the Schedule A(I) land) being the prior purchaser of the A Schedule land and accordingly decided the said issue in the affirmative. lechas (i.e. the Schedule A(I) land) being the prior purchaser of the A Schedule land and accordingly decided the said issue in the affirmative. While deciding the issue No. 4 as to whether the defendant No. 1 had right, title and interest over the land described in the Schedule to the Counter Claim, it was held that the defendants’ claim upon 1 katha 17 ? lechas of land would be subject to the measurement/demarcation of the plaintiff’s land being the successive purchaser. While deciding the issue Nos. 5, 6 and 7, the Trial Court held that there was no overlapping of the claim upon the respective purchased lands but as the dispute arose at the time of construction of the latrine tank by the defendants, it was held that the parties were entitled for a decree in the suit as well as in the counter claim subject to specification in the order which in effect meant that the defendants’ right, title and interest upon 1 katha 17 ? lechas of land in Schedule A land was subject to measurement and demarcation of the plaintiff’s land and the Revenue Authority was directed to cause partition of the Schedule A land by giving priority to the plaintiff’s land and if any encroachment of the latrine construction by the defendant was found, the same shall be evicted therefrom. 11. The defendant No. 1 feeling aggrieved, preferred an appeal before the Court of the Civil Judge, Barpeta which was registered and numbered as Title Appeal No. 28/07. The First Appellate Court vide the judgment and decree dated 20/9/2008 dismissed the said appeal. In doing so, the First Appellate Court formulated a point of determination which reads as under : Whether the impugned judgment and decree had been passed erroneously without proper appreciation of the evidence on record and are not sustainable in law ? 12. The First Appellate Court after considering the pleadings and the evidence came to a finding that the suit land measuring 4 bigha 0 katha 12 lechas covered by Dag No. 1238 under K.P. Patta No. 697 originally belonged to one Surya Kanta Choudhury who was the absolute possessor thereof. 12. The First Appellate Court after considering the pleadings and the evidence came to a finding that the suit land measuring 4 bigha 0 katha 12 lechas covered by Dag No. 1238 under K.P. Patta No. 697 originally belonged to one Surya Kanta Choudhury who was the absolute possessor thereof. It was not opined that there was no dispute by the defendants that the plaintiffs purchased 3 bigha 1 katha 14 1/3 lechas of land from the Schedule A land vide a series of sale deeds exhibited vide Exhibit 2 to Exhibit 12 on various dates. It was also not disputed by the plaintiffs that the defendants purchased 3 kathas 13 lechas of land out of the Schedule A land. The dispute was only as regards the alleged encroachment made on 27/3/2003 by the defendants who broke down the boundary fencing of the plaintiffs and forcefully started construction of the sanitary tank within the land of the plaintiff in the western part of the plaintiffs’ land. The First Appellate Court after going through the evidence of PW-1 and PW-2 came to a finding that there was a dispute with the defendants in respect to removing the bamboo fencing and construction of the latrine. Further the First Appellate Court opined on a scrutiny of the Deed of Sale bearing Deed No. 1498 dated 27/6/2002, that the boundary of the said deed showed that the eastern boundary of the purchased land of the defendant No. 1 fell on the western part of the plaintiffs’ Schedule A(I) land. The First Appellate Court further after perusing the various exhibited Sale Deeds of both the plaintiffs and the defendant No. 1 came to a finding that the defendant No. 1 was the last purchaser of 4 ? lechas of land from Dag No.1238. In other words, after the purchase of 4 ? lechas of land by the defendant No. 1 from Dag No.1238, no land remained to be sold from the said Dag and the dispute arose between the plaintiffs and the defendants when the defendant No. 1 purchased 4 ? lechas of land. Further to that the learned First Appellate Court came to a finding that the defendant No. 1 being the subsequent purchaser of 4 ? lechas of land by registered Sale Deed on 1498/2002 dated 27/6/02, the principle laid down in Section 48 of the Transfer of Property Act, 1882 duly applies. lechas of land. Further to that the learned First Appellate Court came to a finding that the defendant No. 1 being the subsequent purchaser of 4 ? lechas of land by registered Sale Deed on 1498/2002 dated 27/6/02, the principle laid down in Section 48 of the Transfer of Property Act, 1882 duly applies. On the basis thereof, the First Appellate Court further held that the learned Trial Court had rightly decided the issue No. 4 thereby limiting the defendant No.1’s claim upon 1 katha 17 ? lechas of land to be subject to the measurement/demarcation of the plaintiffs land being the successive purchaser. The First Appellate Court hence dismissed the appeal thereby affirming the judgment and decree dated 14/6/2007 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 125/07. 13. Being aggrieved and dissatisfied, the Defendant No. 1 has filed the present appeal under Section 100 of the Code of Civil Procedure, 1908 (for short the “Code of 1908”) and this Court vide and order dated 16/2/2009 had formulated the three substantial questions of law which have already been quoted herein above. 14. The first substantial question of law so formulated relates to as to whether the passing of a decree for plaintiffs’ suit for declaration of right, title and interest and partition of his share without ascertaining the share of the other co-sharer and without passing a preliminary decree is hit by the provisions of Order XX Rule 18 and Section 54 of the Code of Civil Procedure, 1908(in short the Code of 1908). For the purpose of answering as to whether the said substantial questions of law is involved in the facts of the instant case, it would be relevant to take note of Order XX Rule 18 of the Code, which is quoted herein below : “18. For the purpose of answering as to whether the said substantial questions of law is involved in the facts of the instant case, it would be relevant to take note of Order XX Rule 18 of the Code, which is quoted herein below : “18. Decree in suit for partition of property or separate possession of a share therein.-Where the court passes a decree for the partition of property or for the separate possession of a share therein, then,- (1) if and insofar as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54; (2) if and insofar as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” 15. A reading of the above provisions would show that Order XX Rule 18 envisages passing of a decree of partition of a property or separate possession of shares therein. It would be relevant to take note that while Sub Rule (1) of Rule 18 refers to a decree, while in respect to Sub-Rule (2) of Rule 18, the Court is required to pass a preliminary decree. The terms “preliminary decree” and “final decree” used in the said Rules are defined in Explanation to Section 2(2) of the Code which reads as under : “Section 2(2) (Explanation)---A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” 16. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” 16. At this stage, it may be relevant to take note of Section 54 of the Code dealing with partition of a estate relevant for the purpose of Rule 18 (1) which reads as under : “Partition of estate or separation of share-Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law(if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.” 17. In contradistinction of Sub-Rule (1) of Rule 18, Sub-Rule (2) of Rule 18 relates to preliminary decree and in those circumstances, the provisions of Order XXVI Rule 13 & 14 dealing with commissions to make partition of the immovable property would become applicable. The said Rule 13 of Order XXVI is quoted herein below : “13. Commission to make partition of immovable property.-Where a preliminary decree for partition has been passed, the court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.” “14. Procedure of Commissioner.-(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. (3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. The actual partition is effected by passing of the final decree. The valuation has, thus, to be as on the date of final decree.” 18. Therefore, the following principles emerge :- (i) In respect to suit when a Court passes a decree for partition of a property or for separate possession of a share therein in regard to estate assessed to payment of revenue to the Government, the Court is required to pass only one decree declaring the rights of several parties interested in a suit property with a direction to the Collector (or its subordinate) to effect actual partition or separation in accordance with the declaration made by the Court in regard to shares of various parties and deliver possession to them in respect to Section 54 of the Code. Such entrustment to the Collector under law is for two reasons – Firstly that the Revenue Authority is more conversant with matters which are estate assessed to payment of revenue to the Government and secondly Section 54 is a safeguard keeping in view the interest of the Government in regard to revenue. Whether the Collector acts in terms with the decree or for that matter in terms with Section 54 of the Code, the matter does not come back to the Court at all, the Court will not interfere with the partition by the Collector, except to the extent of any complaint of a third party affected thereby. Whether the Collector acts in terms with the decree or for that matter in terms with Section 54 of the Code, the matter does not come back to the Court at all, the Court will not interfere with the partition by the Collector, except to the extent of any complaint of a third party affected thereby. (ii) However, in regard to other immovable properties i.e. building, plots etc or movable properties where the Court can conveniently and without further enquires make the division without the assistance of a Commissioner or where the parties agree upon the manner of division, the Court will pass a single decree comprising the preliminary decree declaring the rights of the several parties and also a final decree dividing the suit property by metes and bounds. However, where the division by metes and bounds cannot be made, without further enquiries, the Court will pass a preliminary decree declaring the rights of the parties interested in a property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect or Lawyer) to physically examine the property to be divided and suggest the manner of division. The Court then hears the party on the report so submitted by the Commissioner and passes a final decree for division by metes and bounds. It may be relevant herein to mention that the function of making a partition or a separation according to the rights declared by a preliminary decree is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the Court and after hearing objections to the report, if any, the Court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the Court may direct sale thereof and distribution of proceeds as per the shares declared. This is how the provisions of Order XX Rule 18(2) is applied to a suit for partition or separate possession of the share. 19. It is also possible that if the property is incapable of proper division, the Court may direct sale thereof and distribution of proceeds as per the shares declared. This is how the provisions of Order XX Rule 18(2) is applied to a suit for partition or separate possession of the share. 19. In the instant case, as it is seen that it is nobody’s case that the suit in question is a suit coming within the ambit of Order XX Rule 18(2) of the Code and as such the question of a preliminary decree does not arise at all. The instant suit comes within the ambit of Order XX Rule 18(1) as would be seen from a bare perusal of the relief sought for in the plaint as well the relief sought for in the counter claim. Further it would be seen that Section 54 can be made applicable only in respect to a final decree being passed. Under such circumstances, the substantial question of law so formulated cannot be a substantial question of law in the instant case. 20. The second substantial question of law so formulated pertains to as to where the findings of the learned Lower Appellate Court which was mainly based on the finding of the Trial Court under issue Nos. 3 and 4 was just and proper against the decree passed for partition in exercise of the power of Section 54 of the Code of 1908. A bare perusal of the concurrent findings of facts of both the Trial Court and the First Appellate Court would show that the issue No. 3 pertains to as to whether the plaintiff had right, title and interest over the Schedule A (I) land and the issue No. 4 was as to whether the defendant No. 1 had right, title and interest of the Schedule-I land. Both the courts below had arrived at concurrent finding of facts that the plaintiffs had right, title and interest over the Schedule A(I) land and the defendant No. 1’s right over the Schedule I land was subject to measurement of the plaintiffs land taking into account Exhibit ”Ga” which was the Deed of Sale bearing No. 1948/02 dated 27/6/2002 was subsequent to the purchase deeds of the Plaintiffs. On the said findings the direction so issued for partition in the opinion of this Court was in accordance with law. On the said findings the direction so issued for partition in the opinion of this Court was in accordance with law. Consequently, the said substantial question of law does not arise in the facts and circumstances of the instant case. 21. The third substantial question of law so formulated is as to whether both the Courts below committed any error in law in declaring the shares of the plaintiff only considering other interest in the property. The facts narrated above would show that Dag No. 1238 of K.P.Patta No. 679 had land measuring 4 bigha 0 katha 12 lechas which had been specifically described in Schedule A to the plaint. There is no denial to the said aspect of the matter. It is an admitted fact which have been also been proved during the course of the trial that the plaintiffs had purchased 3bigha 1katha 14 ? lechas. The plaintiffs had duly admitted that all the defendants together had purchased 3 katha 13 lechas of land. The remaining land thereafter was 4 ? lechas which had been purchased by the defendant No. 1 vide the registered Deed of Sale bearing Deed No.1498/02 dated 27/6/02. Pursuant thereto there was no further land in respect to the suit dag. This is a finding of fact arrived at by the First Appellate Court. The Appellant has not been able to show any perversity to the findings of fact. A perusal of the judgment of the Trial Court would reveal that there was a direction to cause partition of the Schedule A land by giving priority to the plaintiff’s land. It was further directed that if there was any encroachment of the latrine construction by the defendant No.1, the same needs to be evicted. There being no dispute as regards the land belonging to the plaintiffs as well as the defendant No. 1, the question which was only in dispute was as to whether there was any encroachment made by the defendants to the plaintiffs’ land. It is under such circumstances, that the Courts below have directed the Revenue Authority to partition the Schedule A land thereby giving priority to the plaintiffs’ land. It is under such circumstances, that the Courts below have directed the Revenue Authority to partition the Schedule A land thereby giving priority to the plaintiffs’ land. It cannot be lost sight of that the defendant No. 1 had also filed a Counter Claim and the issue No. 4 was also decided partially in favour of the defendant No. 1 holding that the defendant No. 1 had the right, title and interest over 1 katha 17 ? lechas of land subject to priority being given to the plaintiffs’ share. Under such circumstances, both the Courts below ought to have taken into account that the defendant No. 1 was also entitled to have partition as per his counter claim. This was a mistake which was committed by both the Courts below for the third substantial question of law so formulated duly arises. 22. Consequently this Court is of the opinion, taking into account that remanding of the matter back to the First Appellate Court would unnecessarily lengthen the litigation, it would be in the interest of justice to decide the reliefs which the parties are entitled to herein. This Court therefore, in exercise of the powers under Order XLI Rule 33 of the Code directs as under : (i) The Collector or any Gazetted subordinate to the Collector deputed by him shall make equitable partition of the Schedule A land (land measuring 4bigha 0 katha 12 lechas covered by Dag No.1238 included in K.P.Patta No. 697 at Mairamara, Howly, Mouza-Ghilazari in the District of Barpeta). (ii) The share of the plaintiffs in respect to the Schedule A land in 3 bighas 1 katha 14 1/3 lechas(Schedule A(I) land). The defendant No. 1 share would be 1 katha 17 ? lechas subject to priority being given to the plaintiffs’ share. (iii) The Collector or his subordinate so deputed by the Collector shall issue notice upon the plaintiffs, the defendants and/or any other persons who claims rights through the plaintiffs and the defendants over the Schedule A land and thereafter effect partition by taking into consideration the declaration made in Serial No. (ii) herein above. (iv) The Collector or his subordinate so deputed by the Collector shall thereafter hand over the separate possession to the plaintiffs and the defendants. (iv) The Collector or his subordinate so deputed by the Collector shall thereafter hand over the separate possession to the plaintiffs and the defendants. If it is found that the defendants are encroaching upon the plaintiffs land, the Collector or his subordinate shall take necessary steps for evicting the defendants from the plaintiffs’ share. 23. With the above observations and directions, the Appeal stands disposed off. The Registry is directed to forthwith prepare the decree. 24. Send the LCR below forthwith.