ARINDAM LODH,J. -
(1.)As we had heard Mr. K. Datta, learned counsel representing the appellants substantially on 4/2/2022, we proceeded to hear Mr. B. Saha, learned counsel for the respondent.
(2.)This is an appeal filed under Sec. 96 of the Code of Civil Procedure, 1908 against the judgment dtd. 29/8/2019 and decree dtd. 7/9/2019 passed by the learned Civil Judge, Senior Division, Court no. 1 in case No. Title Suit (Partition) 36 of 2018.
(3.)Considering the arguments, as advanced by Mr. Datta, learned counsel, we have perused the judgment passed by the learned trial court. The present suit instituted by the plaintiffs is a suit for partition concerning the suit land measuring 0.0830 acres. It is a very small piece of land, but, sharers are more compared to the land. Here we find there are eight co-sharers. Having considered the land in question and the number of co-sharers, the learned trial court had observed thus:
"So the situation as it prevails now is that there is a piece of land measuring 0.0830 acres which converted to square feet comes to 3615.48 square foot. As the gift deeds went off, this land is required to be partitioned in eight shares. One share is of late Rajabala Banik (W/O Late Brajendra Lal Banik) which will be again distributed equally amongst the remaining seven as she is no more. One share will be given to plaintiff no. 1(A) and 1(B) being heirs of Birendra Lal Banik. Similarly plaintiff no. 2(A) to 2(F) and the defendant will be entitled for one share being heirs of Bidhan Banik. Plaintiff No. 7 being the only legal heir of Maya Banik will get one share. Remaining plaintiff Nos. 3, 4, 5 and 6 will get one share each. So each of the share will come to 516.4 square foot approximately which in case of plaintiff no. 1, 2 and the defendant will again get further divided. The defendant and plaintiff no. 2(A) to (F) will get one-seventh share of 516.4 square foot which will stand around 73 square foot approximately.
The partition of the suit land will certainly lead to fragmentation of the suit land which is otherwise not permitted under the local law of Tripura Land Revenue and land Reforms Act, 1960. The relevant sec. 181 of the Act runs: Partition of holding. (1) No holding shall be partitioned in such manner as to create a fragment. (2) A fragment shall not be partitioned unless as a result of such partition its portions get merged in holdings of two standard acres or more or in fragments so as to create holdings of two standard acres or more.
In this regard I have also travelled through the judgment reported in Shasidhar and Others v. Ashwini Uma Mathad and Anr. 2015 STPL(LE) 49921 SC) in which the principles upon which a suit for partition can be adjudicated has been discussed intricately.
Para 24 of the judgment requires to be reproduced for the sake of discussion which is going on.
'24. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenary property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case.
So the first point to be determined is nature and character of the property. The court is to find out whether the property is such that it can be partitioned.
As discussed above the gift deeds can no more be taken into consideration which resulted in determination of possibility of partition of the suit land in between all the legal heirs equally.
In this regard it is found that the plaintiff 1(A) herself admitted that partition of the suit land in seven shares will make it insufficient for any homestead. The discussion made above clearly establishes that the suit land is so small in area that it is incapable of being partitioned amongst so many legal heirs.
Sec. 2 of the Partition Act, 1893 runs: 2. Power to court to order sale instead of division in partition suits.--Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
In the present case no such request is made. However the parties are appraised of their right given under the above provision.
To sum up it is held that the considering the area of the suit land and number of shareholders the division of property can not be made conveniently and accordingly the suit land is found to be not capable of being partitioned as per the prayer of the plaintiffs.
The issues are decided accordingly.
Issue no. iv and v
iv. Whether the plaintiffs are entitled to get a decree as prayed for?
v. Whether the plaintiffs are entitled to get any other relief or reliefs?
Both the issues are taken up together.
Above it is discussed that the suit land is not found to be capable of being partitioned amongst so many share holders. Accordingly, the plaintiffs are found to be not entitled for a decree of partition as prayed for.
They are also found to be not entitled for any other relief or reliefs.
Both the issues are decided accordingly against the plaintiffs.
"In the result, the suit of the plaintiffs is dismissed opining that the suit land is not capable of being partitioned amongst the parties to the suit as it will create fragment.
The suit is disposed of on contest with cost.
Make necessary entry in the relevant Trial Register.
Prepare decree accordingly and put up before me for signature within 14 (fourteen) days from today Pronounced in the open court.""