1. The plaintiff sues for partition in respect of a tank and some lakheraj land. The contest is only with regard to the tank. It appears that a two annas share of the tank is at present held by defendant 1, and the remaining 14 as by the pro forma defendant 7. The plaintiff has obtained a permanent lease of 14 annas from defendant 7, and is building a house on the bank of the tank. In the plaint the plaintiff made an alternative prayer that if the division of the property cannot conveniently be made a direction might be given to the commissioner to compensate the party who might get less than what was due to his share. In his defence the defendant made a prayer that he should be allowed to purchase the share of the plaintiff in the tank. On 8th August 1927, when the suit was being heard, the plaintiff filed a petition offering to purchase the defendants' share.

2. It also appears from the judgment of the trial Court that, in moving the petition, the plaintiff's pleader asked that, if the prayer be not granted, the Court might direct that the tank might be sold to that cosharer who should offer the highest price above the valuation made by the Court. Both the Courts below agreed in holding in favour of the defence and gave a direction that, on defendant l's depositing the value of the 14 annas share as made by the Court within a certain time he would be entitled to obtain a conveyance from the plaintiff.

3. There was however some difference as between the two Courts regarding the money value of that share. The present second appeal is preferred by the plaintiff. The amount of the money value as fixed by the lower appellate Court of the 14 annas share is not now in dispute. But the appeal is pressed against the direction that defendant 1 will get a conveyance from the plaintiff on his depositing the amount of the value of 14 annas share.

4. In coming to the above decision the Courts below have had recourse to the Provisions of the Partition Act, 1893. ‘he learned Additional Judge has further held that, even apart from the Partition Act, the defendants would be liable to a decision in their favour having regard to general principles. It appears that the plaintiff sought to rely on the case of Debendra Nath v. Haridas Bhattacharjee . [1911] 7 I.C 844.. But the learned Judge had distinguished that case by remarking that it stands on a different footing. That was a case in which the property in suit could not be conveniently divided. I may remark that in the present case there is no dispute that the tank in question cannot be conveniently divided.

5. In the reported case it was held as follows:

“The proper course therefore to follow is to direct a sale of the property among the co-sharers; and it should be given to that share-holder who offers to pay the highest price above the valuation by the Court. The defendant cannot in our opinion be compelled to transfer his share at a valuation to the plaintiff merely because the latter happened to have possession of the property at the time when they commenced the present action.”

6. In that case it appears that the plaintiff did not choose to follow the procedure laid down in the Partition Act of 1893 and therefore the case was decided on general principles. I do not think that the learned Subordinate Judge was correct in holding that the reported case stood on a different footing. The learned advocate on the other side has drawn my attention to the case of Basant Kumar Ghose v. Moti Lal Ghosh . [1907] 6 C.L.J 8n.. There it is held that when it is inconvenient to divide a property it must be left in the possession of the person in occupation, and the other person who cannot conveniently get actual possession should be compensated. In the present case no doubt the learned Subordinate Judge has found that the defendants have their homestead very close to the tank. But he does not refer to the fact that the defendant share only small cosharers, whereas the plaintiff is now entitled to by far the greater part of it. His case that he is building a house on the bank of the tank also has not been negatived. Therefore even on the equity of the case it does not seem to me that the defendants are entitled to decision in their favour on the alleged ground that they, and not the plaintiff, are in possession of the tank.

7. The next question, whether the Courts below were right in applying the “provisions of the Partition Act, it is contended on behalf of the appellant that Section 2 of the Partition Act, 4, 1893 does not apply to the present case because the plaintiff is not a cosharer of the same grade as the contesting defendants and therefore he is not interested in the share of the property to the same extent as the defendants. Section 2 of the Partition Act, provides for a special procedure by which in place of partition of the property to which a cosharer is ordinarily entitled, there may be a sale of the property and rateable distribution of the proceeds, and the condition that is laid down is that there must be a request by the shareholders interested to the extent of one moiety at least. It seems to me that the moiety here means moiety of the entire property vis a vis the other shareholders. No doubt shareholders of different grades may sue for partition, because the right of partition exists when two persons are in joint possession of land under permanent titles although those titles may not be identical: see the cases of Lala Bhagwat Sahai v. Bepin Behary Mitter . [1910] 37 Cal. 918 and Himudri Nath v. Khana Kamini Kanta Ray . [1897] 24 Cal. 575 a shareholder however small may sue for partition of the entire property. But an application under Section 2 of the Partition Act contemplates a somewhat different set of circumstances. There may be partition as between persons possessing one moiety of the property in zamindari right and other persons possessing the other moiety in permanent tenancy right. But if there is an application by the tenants representing only the tenants' interest, it would be anomalous if that would give them a right to have a direction from the Court for the sale of the entire property even though the zamindars were not willing. In the present case the plaintiff's lessor has been made a party as proforma defendant 7, but he has not joined in the application for the sale of the property. The learned/advocate for the respondent has contended that this is a new point raised for the first time in the second appeal. The point however is one of law: but in any case the applicability of the Partition Act has been discussed in the judgments of the Courts below. In the view that I take it seems to me that there was not a request by the co-sharers interested to the extent of one moiety or upwards vis a vis the contesting defendant 1 is not entitled to ask that the property be sold to him.

8. Conceding that the Partition Act applies to the present case, the next question is whether there was a request by the plaintiff as contemplated in S. 2 of the Act. In the plaint no doubt the plaintiff made a prayer that the commissioner might be empowered to award compensation to the parties making their respective shares equal. In his petition which was filed on 8th August 1927 the plaintiff prayed that the defendants' share might be sold to him. This was supplemented by a verbal prayer from the plaintiff's pleader who asked that the property might be sold to that cosharer who should offer to pay the highest price. It is pointed out that this was not a request for a public sale of the property which is provided for by S. 2 read with Section 6 of the Partition Act. The Courts below have relied upon the case of Atul Chandra Kundu v. Bhusan Chandra Kundu . A.I.R 1926 Cal. 1190. The facts of that case are no doubt in some respects similar, but it seems that there is a distinction on a vital point, and that is that the plaintiff in that case made an alternative prayer that the property should be sold to the highest bidder, that is to say, that there should be a sale under Section 6 of the Partition Act. The learned advocate for the appellant has drawn my attention to the recent case of Ram Prasad v. Mukundi . A.I.R 1929 All. 443. In that case a house, which was the subject-matter of partition was found to be incapable of partition. The plaintiff asked the Court that the sale might be confined amongst the shareholders and the cosharer who offered the highest price might be given the house. It was held that where the nature of the property is such that a division thereof amongst all the share holders cannot reasonably or conveniently be made and the parties are agreed that no division could be made, the Court should direct the sale to be held among the plaintiff and the defendants and the property should be given to that party who offers the highest price above the-valuation of the Court. This is also the decision in the case in Debendra Nath v. Hdridas Bhattacnarji referred to above. In these circumstances it seems to me that the Courts below were not right in deciding the case in the way they have done. As, mentioned already, even on the equity of the case, it seems to me that the plaintiff is entitled to a decision in his favour and I think that the present case should be decided in accordance with the decision in Debendra Nath v. Haridas Bhattacharji and Ram Prasad v. Mukundi.

9. I therefore reverse the judgment of the lower Court of appeal and remand the case to the trial Court and direct that the valuation which has already been arrived at in respect of the 14 annas share of the plaintiff must be taken as conclusive and that the Court should value the 16 annas of the property in proportion to the valuation of the 14 annas share as already arrived at. The Court will then hold a sale of the tank amongst the plaintiff and the defendants and deliver the property to the party who should offer the highest price above the valuation of the Court. The appeal is allowed accordingly, but in the circumstances of the case the parties will bear their own costs in this Court. Future costs will abide the result. I do not think that this is a fit case for further appeal under the Letters Patent.

M.N/R.K

10. Appeal allowed.