KRHUDIRAM MALIK Vs. SOUR CHANDRA JASH

JUDGEMENT

(1.) THIS Rule is directed against an order made by the learned Subordinate Judge, Additional court, Burdwan in Title Suit No. 37/88 of 1966/ 64. The suit has been filed for partition of a tank and its banks. It is not in dispute that the plaintiff has 11 annas 15 gandas, the respondent No. 1 has 4 annas and the respondent No. 2 has only 5 gandas shares in the property. A preliminary decree was duly passed in the suit declaring the shares of the parties. Thereafter, a Commissioner of Partition was appointed and the Commissioner effected partition of the tank as also of the banks by metes and bounds and submitted his Report. The plaintiff as well as the defendants filed objections to the Report of the commissioner, the plaintiff's objection being that an order should be Marie for sale of the tank under the provisions of Ss. 2 and 3 of the Partition Act as he, the owner of more than a moiety of share, having made a request for sale, in the plaint. The other ground of his objection was that the burden of irrigation rights, which some neighboring owners enjoy over the tank, will fall unequally on his portion of the tank and thereby increase the burden of irrigation rights on that portion. In his objection, the respondent No. 1 stated that the portion of the tank which is adjacent to his lands should have been allotted to him which the commissioner has not done by his report. The Pleader-commissioners report as well as the objections of the parties came up for consideration before the learned Subordinace Judge. The learned Subordinate Judge by order no. 74 dated 13th December, 1969 gave the following direction to the Com missioner : -

(2.) IT appears that neither the plain tiff nor the defendants are aggrieved by the order for partition of the banks by metes and bounds. The dispute centres round the disposal of the tank or what has been described as the watery portion of the tank. Admittedly, the tank is burdened by substantial irrigation rights enjoyed by neighbouring owners. The learned Subordinate Judge in rejecting the part of the Report of the Commissioner by which he partitioned the tank by motes and bounds has rightly observed that in such a contingency, that is to say. in the event of a partition of the tank by metes and bounds, the irrigation rights of the neighbouring lands will be adversely affected. He has also accepted the plaintiff's case that in that event, the plaintiff will have to bear an excessive burden of irrigation rights. It seems to us, and it also appears to have been the view taken by the learned Subordinate Judge, that the tank is inscape able of partition. In the facts and circumstances of the case, we think it is incapable of partition because partition is bound to interfere with the irrigation rights of third parties and throw an excessive burden of those rights on some portion of the tank or other. The former objection, in fact, is the more weighty of the two. In convenience of partition may not be a good ground for refusing partition but when third party right are affected and to amendments can be made for affecting those rights, no partition by metes and bounds is obviously possible. The learned Subordinate Judge then proceeded to consider the question of sale of the tank. He relied on the decision of a Division Bench of this court presided over by G. N. Das, J. in (1) Nitya Gopal v. Pran Krishna a. I. R. 1952 Cal. 893 where it was held that apart from the Partition Act, the court has no inherent power of sale if the Court finds that a property cannot be conveniently partitioned or that the partition thereafter would affect the intrinsic value of the property. The learned Subordinate Judge apparently took the view that no order for sale could be made in the facts of the case. It seems to us that the learned Subordinate Judge overlooked the request made by the plaintiff in the plaint itself for sale of the property if partition was not possible or convenient. This request made by the plaintiff, who owns more that a moiety of the share in the property, vested in the Court a power to direct a sale under the provisions of section 2 and 3 of the Partition Act. In those circumstances, an order for sale could and should have been made by the learned Subordinate Judge. Instead of making an order for sale, which he had ample power to make the learned subordinate Judge directed that the watery portion of the tank be kept joint for the enjoyment of the co-sharers. In making that order, he relied On the decision in (1) Nitya Gopal v. Pran krishna where he found that the learned Judges of the High Court had given the same direction in the facts of that case.

(3.) IN (1) Nitya Gopal's case no re quest had been made by any party for sale of the tank which was found by the court to be incapable of partition the Court, therefore, had neither the power to direct a sale nor could the court direct partition of the tank because partition was impossible of performance. By force of circumstances the only course left open to the Court was to submit to the inevitable, or in other words, to leave the tank as it was, that is to say, in a state of joint. ownership. The function of the partition court is to partition and not to declare that the properties which are the subject matter of the partition suit are to remain joint. It is only in extreme circumstances when neither partition nor sale is possible that the order declaring that the property or a part of it should remain joint, can be made, lex non cogit ad impossibly the law does not compel the impossible. In (l) Nitya Gopal's case the Bench pre sided over by G. N. Das, J. took the view that the language section 9 of the Partition Act is wide enough to enable the Court to declare that a pro party which is the subject matter of a partition suit should remain joint. With very great respect to the learned Judges who decided the case, we are constrained to say that section 9 of the partition Act does not appear to be an authority for that proposition. The section speaks only of partition of a part of the property and sale of the remainder. It; does not leave any scope for a third course. In our view, the order made by the leaned Judges in (1) Nitya Gopal's case was justified for another reasons, the reason being one of necessity. If the Court finds that neither partition nor sale is possible, the only alternative course left open to court is to maintain status quo, or in other words to declare that the property is to remain joint. That is precisely what was done in (1) Nitya gopal's case. In. fact, G. N. Das, J. gave a direction in his judgment that if the court below found that the tank was capable of partition it was to be partitioned if not, the tank was to be declared to be a joint property. Be that as it may, the order was made in the context of the fact that no request was made for sale of the tank and therefore the court had no power to direct sale. No such impediment: exists in the facts and circum stances of the present case.