NITYA GOPAL SAMANTA Vs. PRAN KRISHNA DAU

JUDGEMENT

(1.) This is an appeal by defendant 1 against a decision of Sri J. M. Bir, learned Subordinate Judge, Burdwan directing that the disputed property which consists of a tank and its banks, be sold amongst the co-sharers. The disputed property was recorded in C. S. dag 1205 of mouza Rasuikhand, P. S. Raina, District Burdwan. The plaintiffs claim 13 annas 12 gandas 2 kara 2 kranti share in the disputed property. The share of defendant 1 is stated to be 1 anna 12 gandas 1 kara 1 kranti 14 tils, that of defendants Nos. 2 to 4, 4 gandas 1 kara 1 kranti 16 tils and that of defendant No. 5, 10 gandas 1 kara 10 tils. The plaintiffs allege that defendant 1 has been exercising acts of possession in the tank and its banks and has not taken any care about the tank and that it is not convenient and possible to possess the disputed property jointly with the defendants, that the defendants refused to have the tank amicably partitioned though the plaintiffs requested the defendants to do so. The plaintiffs accordingly filed the present suit for partition. There was a further prayer in the plaint that in case the Court was of opinion that the tank could not be conveniently partitioned and that a partition of the tank would affect the intrinsic value thereof, necessary orders in accordance with law might be passed.

(2.) The defence of defendant 1, appellant in this Court, was that the plaintiffs are benamdars of defendants 2 to 4 and as such the suit was not maintainable by them. The defendants further alleged that the tank was capable of partition and if the suit was maintainable at the instance of the plaintiffs, the disputed property might be partitioned among the parties in accordance with their shares. The trial Court was of opinion that the disputed property cannot be conveniently partitioned and directed a sale thereof amongst the co-sharers. The trial Court also found that the allegation of benami was not true and that the suit was maintainable.

(3.) Against that decision defendant 1 preferred an appeal to the lower appellate Court. The lower appellate Court reversed the finding of the trial Court that the plaintiffs were not benamdars of defendants 2 to 4 and found that the plaintiffs were benamdars for some of the defendants. The lower appellate Court, however, held that the suit was maintainable at the instance of the plaintiffs though they were benamdars. The lower appellate Court then proceeded to consider the question whether the disputed property was capable of partition. The lower appellate Court was of opinion that it was not convenient to possess the disputed property jointly by the co-sharers as there were constant frictions between the parties and various litigations had cropped up. The lower appellate Court further found that the suggestion of defendant 1 that the tank should be partitioned cannot be accepted. It also found that a partition would affect the intrinsic value of the property and in that view directed a sale of the property amongst the co-sharers. In the result the lower appellate Court affirmed the decree' passed by the trial judge.