The court's decision was influenced by the provisions of the Partition Act, 1893, which allowed for the sale of the property to the party offering the highest price above the valuation made by the Court.

JUDGMENT

S.K. Ghose, J. - 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 1'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. 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.

3. In coming to the above decision the Courts below have had recourse to the provisions of the Partition Act, 1893. The 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.

4. 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 cosharers; and it should he 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.

5. 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. 8 n. 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 defendants are only small cosharers, whereas the plaintiff is now entitled to