The record is taken up for passing necessary order. This is a suit for partition under sections 2 and 6 of the Partition Act, 1893. Perused the plaint, deposition of the plaintiff as P.W- 01, the documentary shreds of evidence marked as exhibits No. 01-08, and the case record.
2. The plaintiff’s succinct fact can be
encapsulated in the way that the suit land is a pond which is sold to defendant No. 01 who is a stranger to the suit lands. The plaintiff argued that
the defendant’s intrusion as a stranger purchaser into their ejmali property causes distraction disruptively to its enjoyment. He also maintains that the disputed pond is not worth being partitioned. Since he is a co-sharer to that, he manifested his
purchasing desire and prayed for getting the disputed pond from the defendant
under sections 2 and 6 of the Partition Act, 1893.
3. Upon considering the impugned fact and
the adduced pieces of evidence, it appears that the PW-01 asserted that the suit
property is a pond; and this discourse is clearly supported by the Ex. No. 01.
It is also evident that the defendant is a stranger transferee, whereas the
plaintiff is a co-sharer to the disputed holding. It is unambiguously the court’s
view that the suit property is a divisible pond. Pragmatically, a pond is
divisible, and a division of the same can reasonably or conveniently be made.
Conspicuously, even a layman’s mind can grasp the sheer possibility of a fact
that ‘shares’ of a given pond is also distributable among its holders. In
cognizance of the materials on record, nothing is proved to be contrary to this
proposition.
4. In legal parlance, it is well
established that in the absence of a finding that a division of the property
cannot reasonably or conveniently be made, action cannot be taken under the
referred provisions of law. It is sheer ratiocination to hold that section 2 of
the 1893 Partition Act is amenable to be invoked only when the partition of the
suit land is impracticable, impossible, and uneconomic in its’ very nature.
5. The statutory epithet of section 2 of
the Partition Act, ‘a division of the property cannot reasonably or
conveniently be made’ contemplates that if it appears to the court that because of the nature of the property or of any other exceptional circumstances, a
division of the property cannot conveniently be made; and that a sale of property
and distribution of the proceeds would be more beneficial for all the
share-holders, the Court may direct sale of the property and a distribution of
the assets. The Court has the inherent power to order a sale
instead of a partition in such a condition. But so far as the instant suit is concerned, the
plaintiff cannot overcome this legal threshold.
6. The principle underlying this section
is that a partition should not be made if the property's intrinsic value is destroyed thereby. The plaintiff turned up before the court not for mere
division of the suit property. Even he did not take legal recourse for
pre-empting the suit pond even though if a portion or share of a
holding is sold to a stranger thereto, that share or portion is preemptible.
Moreover, the sale which a court directing partition can order under this
sections only for that of a complete share; not of a portion thereof. The
plaintiff also gets entwined within legal knots which derails him from the
passage of the relief prayed for.
In the background of the findings described above and in consideration and cognizance of the petitions, facts, surrounding
circumstances, submitted evidence both oral and documentary on record and
relevant laws, it appears to the Court that the plaintiff has not been
successful in proving his case under the provision he brought in the instant
suit which is found not maintainable in its present form. Thus, the suit
deserves to be dismissed. As such, it is decided that the plaintiff may not get
the relief as prayed for.
Court fee paid is sufficient. Hence, it is ordered that the suit be dismissed ex parte against the defendants without costs.