JUDGMENT

Glover, J. - The point for decision in this appeal is, can the purchaser of a share in an undivided lakhiraj estate sue his coparceners for a batwara of his own portion. The plaintiff bought a 5-anna, 7-ganda share of the estate from one of the owners, and seeks to have that share separated from those of the other share-holders, on the ground of disputes, between the parties, and losses and inconveniences in consequence of those disputes. The defendants deny the right of a share-holder in a lakhiraj estate to have his share divided off from the others, and contend generally that the plaintiff has no cause of action, The Subordinate Judge held that the plaintiff could have his share separated, and against this decision the defendants appeal.

2. I think we may dispose of the technical objections raised to the plaintiff's suit, without going minutely into the evidence as to the precise nature and extent of the inconveniences and losses detailed in the petition of plaint, inasmuch as if the question of right to a batwara be decided in the plaintiff's favor, the refusal of the defendants to allow the partition would of itself be a sufficient cause of action.

3. With regard to the general issue, it is contended by the appellants that there is no law to compel the joint owners of a lakhiraj estate to submit to a partition; but they are entitled to enjoy their property in the way they have always enjoyed it; and that what the plaintiff bought was the right to receive a share of the rent of the estate collected, as they had always been jointly. The appellants contend, further, that the decree of the Subordinate Judge is incapable of execution, and is, therefore, a bad decree; that the Civil Court has no power to send an Ameen to make the batwara; and that a partition could only be made by the Collector.

4. In support of this contention, we have been referred to several rulings of the late Sudder Court and of this Court. The first of these is the case of The Collector of Dinagepore v. Anand Moyee Chowdhrain S.D.A. Rep. 22nd July 1857, 1277, and in this the Sudder Court held that "the proper and substantial ground on which a legal right to a division could be based was the common responsibility which the Decennial Settlement imposes on the proprietors of an estate in co-parcenary, whereby the co-sharers are liable to lose the whole estate through the default of one of their body. But where no such common responsibility exists, and the liability is distinct and defined, absolving the proprietor from such risks as co-sharers are subject to, the community of interests in other respects, either through joint management of the lands or sharing rateably in the collections, cannot, in our opinion, entitle a proprietor so situated to force on the others a separation and division of the land." The appellants argue from this, that if in a revenue-paying estate certain particular arrangements made with Government absolved the co-sharers from mutual responsibility for the revenue, and, therefore, barred their right to force a division, a fortiori, there can be no such forced partition where the estate was lakhiraj, and no question of Government revenue existed. I do not think that we can fairly apply this precedent to the present case. Revenue-paying estates are subject to a particular law in the matter of partition, and the Judges considering the peculiar circumstances of the case before them, circumstances which appeared to do away with the risk that, under the old law, all co-sharers in a joint estate ran in respect of the Government revenue, held that a partition could not be made without the consent of the other share-holders. The ruling had reference to a particular law only, and the Court refused to strain that law to the inconvenience or prejudice of the general body of share-holders. In the present case, we have an entirely different state of things; and although the reasoning of the learned Judges of the Sudder Court may be taken into