B.N. Maitra, J.
1. On the 17th Dec., 1942, the plaintiff purchased 8 annas share in the disputed tank in a court sale. Subsequently, on the 6th June, 1953, he acquired 6 annas share in that tank from one Nitya Gopal Mukherjee by a sale deed. The plaintiff's suit is for partition of his 14 annas share in the tank in question.
2. Defendant No. 2 filed a written statement stating that the tank could not be partitioned.
3. The learned Munsif rejected the defendant's contention and decreed the suit Defendant No. 2 preferred an appeal and lost the same and hence this second appeal.
4. The learned Advocate appearing on behalf of the appellant has referred to the case of Narendra v. Jnanendra in (1952) 90 Cal LJ 147 to show that where a dwelling bouse jointly owned by the members of a Hindu family is sought to be partitioned, every member has an inherent right to obtain a slice in his share. If partition is destructive of the intrinsic value of the property, the Court may. in cases coming under Section 2 of the Partition Act, direct a sale. When Section 2 does not apply, there also the Court has jurisdiction to direct a sale independently of the Partition Act. There is no denial that the irrigation right of several plots from the tank in question is involved. If the tank is partitioned, it will mean destruction of the subject-matter of the partition. So the Court should in the exercise of its inherent power direct the sale of the property, at least, under Section 2 of the Partition Act.
5. The learned Advocate appearing on behalf of the respondent has stated that both the Courts have concurrently found that the tank can be partitioned. Hence there is no point in allowing this appeal.
6. The aforesaid case of Nagendra v. Jnanendra ((1952) 90 Cal LJ 147) (supra) is in the appellant's favour. In the case of Khudiram v. Gour Chandra in (1974) 78 Cal WN 809 at p. 812 it has been stated that in a suit for partition of a tank and its bank encumbered with burden of irrigation rights of third, party, as in the present case, a preliminary decree for partition was passed. An objection was raised that the tank was incapable of partition because the same would interfere with the irrigation rights of third parties and would throw an excessive burden of those rights on some portion of the tank or other. There was a request by the plaintiff for sale of the property. It was held that Section 9 of the Partition Act did not enable the Court to declare that a property must remain joint. If the property is not capable of partition and there is a request of sale of such property, the Court is within its power to direct a sale. In this Bench case the previous Bench decision of Nityagopal v. Prankrishna, reported in : AIR1952Cal893 was not followed. The Rule was made absolute and a direction was given to the Court below to make an order for sale of the tank.
7. In this case the plaintiff is the owner of 14 annas share. There is no denial of such irrigation right regarding several plotsfrom the tank in question. In such circum-stances, the proper course is to direct a sale of the property.
8. The appeal is allowed. The judgment and decree appealed against be and hereby are set aside. The learned Munsif win direct a sale of the tank in question. He will give direction that enough land should be kept on the bank to enable the owners to use it in a befitting manner. The suit is decreed accordingly in a preliminary form without costs.
9. There will be no order as to costs in this Court.