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ARINDAM LODH, S. G. CHATTOPADHYAY
Sunanda Banik – Appellant
Versus
Bimal Banik – Respondent
| Table of Content |
|---|
| 1. nature of the partition suit. (Para 2) |
| 2. court's analysis on partition capability. (Para 3 , 4 , 5) |
JUDGMENT
Arindam Lodh, J. - As we had heard Mr. K. Datta, learned counsel representing the appellants substantially on 04.02.2022, we proceeded to hear Mr. B. Saha, learned counsel for the respondent.
2. This is an appeal filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment dated 29.08.2019 and decree dated 07.09.2019 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
In partition suits, the court must assess the property's nature to determine if partition is feasible without creating a fragment, as mandated by local regulations.
A co-sharer’s right to ancestral property is inherent and cannot be extinguished by absence from the parental home.
Claiming partition requires proof of joint possession and enjoyment; absence of such evidence leads to dismissal of partition suits.
The court ruled that disputed gift deeds require credible evidence for enforcement; joint property claims must prioritize actual possession and entitlement over mere assertions of gift.
Earlier partition decrees are binding on heirs unless substantial rights are violated; amendments in succession laws do not retroactively affect holdings from prior valid decrees.
The court ruled that historical evidence and conduct proved prior partition among family members, emphasizing that joint records do not negate previous separations of ownership.
The heirs of a deceased party cannot confer rights through a gift deed when prior partition eliminates their interest in the property.
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