The record is taken up for passing necessary order. This is a suit for partition of the suit property. Perused the plaint, deposition of the plaintiff as P.W- 01, the documentary pieces of evidence marked as exhibit No. 01, and the case record.
02. Upon such perusal and consideration of the adduced evidences, it appears that the property comprised in SA khatian No. 395 belonged to one Rahim Sarkar @ Rahimuddin, transferred the suit land to the plaintiff and the defendant No. 01-02 via a registered deed of No. 16867/1964, and thus, they have been in ejmali possession of 15 decimal land since then [vide SA khatian, Deed No. 16867/1964]. The plaintiff also admitted that out of the land described in the respective plot scheduled to the plaint, they are now in ejmali possession of only 15 decimal lands; and the rest land of 03 decimal is in the possession of local government bodies. Nothing is proved to the contrary [Pw-01].
03. On perusal of the plaintiff’s gift deed, it appears that there are three persons named as donee, who are the plaintiff and the two defendants of the very suit. But, a close reading of the deed on board, it further transpires that no share of those donees is mentioned in the averment of the deed in question. So, the question arises of how and what share of land will vest to those donees, the parties to the suit. In evidence, it is noticeable that the plaintiff claims an equal share of the property described in the deed. The deed itself exposes in a way that no consideration money comes from the donees as the deed is a gift one. So, the concept of joint or co-ownership comes into play here.
04. Section 45 of the 1872 Transfer of Property Act deals with joint transfer for consideration. Since the deed in question is a gift deed and there is no consideration paid by each of donees, another question also comes into play whether the provision of section 45 of the 1872 Transfer of Property Act would be applicable to our case at hand. An undertaking of a textual and structural analysis reflects that section 45 of the Transfer of Property Act is unique in ways that it runs contrary to Section 91 of the Evidence Act, 1872; meaning that section 91 lends sanctity to the vesting of property through property deeds, whereas section 45 chips away at this sanctity. Section 45 of the Transfer of Property Act does not divest title. It only helps understand the extent to which the title had been vested to begin with. And the second paragraph of Section 45 itself suggests that a presumption is cast by the statute in favor of equal ownership.
06. In evidence, the PW-01 asserted that all the parties to the suit are now in ejmali possession of only 15 decimal lands described in the scheduled to the plaint. The plaintiff thus claims only 05 decimal of land out of those 15 decimal lands on the basis of her co- ownership. The PW-01 also claims that she has been in possession of 5 decimal of land and has a betel-leaf-field on her 5 decimal lands, and defendant No.01 has his house on his 5 decimal shares of lands. However, the RS khatian No. 334 is prepared in the name of defendant No. 01 only. Since Khatian is not evidence of title, and the plaintiff has proved his possession in his suit land with credible evidence, it can legally be opined that the plaintiff has successfully established his title and possession to the suit land he claims as such. Pertinently, this is a suit that is being tried ex parte; and there is no material on record that goes contrary to the plaintiff’s claims.
07. Generally, the law is settled that the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary. Furthermore, in this respect, it is also pertinent to mention that ‘the plaintiffs in order to succeed must establish their own case by credible evidence and weakness of the defendants is no ground for awarding a decree in favor of the plaintiffs. The court holds that since the plaintiff’s case has been proved by evidence as well as sufficient implications on the points that she has a property deed that substantiates her ownership of 05 decimal of the scheduled land and also that she is in ejmali possession of the suit property. And thus, the plaintiff may also get relief under section 42 of the Specific Relief Act, 1877. Thus, the suit deserves to be decreed. As such, it is decided that the plaintiff may get the relief as prayed for.
In considering the aforesaid facts, documentary evidence, relevant laws, corroborative evidence, and encompassing conditions, it appears to the court that Plaintiff has successfully proved her right, title to & interest in 5 decimal land out of the suit landed property. And thus, the plaintiff has established his right, title, and interest in 05 decimal lands out of the suit landed property. It is also proved that the suit is filed within the period of limitation as well as the parties to the suit have a community of interest in the suit property. Although a suit for partition determines the share of the co-sharers inter se, only the plaintiff has prayed for a separate Saham in the present suit. For that reason, it can easily be concluded that no decision as to the Saham of residual suit property shall legally be given in the instant suit. As such, Plaintiff may get relief as prayed for. On consideration and cognizance of the Pleadings, facts, surrounding circumstances of the case, shreds of evidence on record, and relevant laws, the Court is of view that the suit deserves to be decreed ex parte.
Court fee paid is sufficient.
Hence, it is ordered that the suit be decreed in preliminary ex parte against the defendants without any order as to costs, allocating the plaintiff a separate Saham for 05 decimal of lands on partition out of the suit landed property described in the schedule to the Plaint. The parties are directed to amicably effect partition of the suit properties among themselves by metes and bounds within 30 (sixty) days from the date, failing which, the plaintiff shall be at liberty to have the partition through the court in accordance with law for making the preliminary decree final by appointing a civil court commissioner.
(Composed and corrected by)