A.Lala, J. - (1.) From the concurrent findings of the Court of first instance as well as by the first Appellate Court in favour of the respondent-plaintiff, this appeal was preferred. I do not find in the record that any point was formulated at the time of admission of the appeal. However, such point may be formulated even at the time of hearing of the appeal. Three points were formulated from the Memorandum of appeal which are as follows: "XIII - For the Courts below ought to have held that the land as mentioned in Exhibit No. C-1 the Deed of Gift revealed the boundary which is conformity with the plots of land as mentioned in the Mouza Map Exhibit No. E-1 and thereupon ought to have dismissed the suit. XV - For that the Courts below ought to have held that the Deed of Gift (Ext. C-1) in all material respects tally with the lands contained in Ext. F(2) C.S. Khatian No. 72 and in Ext. G(1) R.S. Khatian and ought to have held that there was no discrepancy in establishing the land in the Deed of Gift and the land in dispute. XXIII - For that the Courts below erred in law in not holding that said deed of gift was acted upon althroughout by the defendant No. 5 since 1945 upto the time she (the defendant No. 5) sold the disputed property to the defendant No. 1/appellant."
(2.) This is a suit for identity of the suit property which is obviously an outcome of factual ascertainment. Therefore, no second appeal should be allowed on that score. Out of the aforesaid three points, the first two points are reasonably the factual grounds. Therefore, on that score I do not want to interfere with the concurrent findings. So far as the last point is concerned, a lot of arguments were advanced before this Court to come to an appropriate conclusion.
(3.) On Taran Ghosh (since deceased) had his three sons viz., Fakir, Nanitosh and Banamali. As per submissions made by the parties I have come to know that there is also a daughter named as 'Panchubala'. According to the appellant, in 1922 by a Deed of Gift Taran gifted the entire property to Panchubala. In 1943, a partition suit being Title Suit No. 11 of 1943 was resolved in a partition amongst the sons. There, the plot No. was 631, part of which is the subject-matter herein. In 1945, Panchubala instituted a suit being Title Suit No. 132 of 1945 in respect of a plot No. 709 which was ended with compromise in between the brothers and sister. Such plot No. 709 is arisen out of mouza 'Atuhat' approximately at an area of 6 cents = 4 kattahs of lands. The subject-matter of the suit herein is in respect of the plot No. 631, khatian No. 72, mouza-Katwa about 13 decimals of lands. The plaintiff purchased 1/3rd share of the successor in interest of Banamali and 1/9th share of successor in interest of Fakir, totalling to 4/9th shares. Naturally, when the dispute arose in respect of the identity of the suit property, the present suit was instituted for declaration of 'ka' schedule property and 'Ga' schedule being part of 'Ka' schedule, in effect, part of plot No. 631 as aforesaid. The prayer in respect of 'Ka' schedule property is in the nature of declaration whereas the prayer in respect of 'Ga' schedule property is in the nature of a mandatory injunction. In both the Courts, the respondents succeeded.;