Norris and Beverley, JJ.
1. This is a suit for partition.
2. The plaintiffs are the proprietors of a 12-anna share in a certain tenure known as taluk Banga Chandra Das, and they allege that they are in possession of the other 4 annas of the tenure as durtalukdars; but it does not appear upon the proceedings, so far as we are aware, to whom the plaintiffs pay rent on account of the 4-anna share of the taluk.
3. The taluk in question consists of a 71/2 annas or a 15/32 part of the rents of so much of the lands of the three villages, Deora, Bagmara and Talagao as appertain to the estate No. 23 on the tauzi of the Collectorate of Noakhali. It appears that estates Nos. 23, 24, 25 and 26 represent fractional shares in three parganas comprising some 500 villages. No butwara has been made of these parganas, but by some private arrangement, apparently, certain lands in a village have been assigned to one estate and certain other lands to another, some lands being kept common to all the four estates. Thus the estates do not consist of entire villages, but of specific lands in certain villages and a joint interest in other lands kept ijmali.
4. It is not clearly set out in the plaint who are the proprietors of these four estates; but it is alleged that the defendant No, 1, either as zemindar or as putnidar or as dur-putnidar, is in possession of estate No. 23; and the other zemindars of that estate have been added as parties to the suit.
5. The plaintiffs, therefore, on the ground that they are in joint possession of the lands in suit with the defendant No. 1, ask for a partition of those lands as against him.
6. There is yet another complication in this intricate and curious system of tenures that must be noted. It appears that there is another permanent tenure called taluk Sobharan in this estate No. 23, which taluk consists of lands not only in the three villages in suit but in nine others. A 2-anna share of this taluk is in the khas possession of the defendant: of the other 14-anna share, a 7i-anna share is held under the plaintiffs.
7. The lower Court has dismissed the plaintiffs' suit on several grounds. In the first place the Subordinate Judge has held that the plaintiffs cannot sue for partition of the lands appropriated to estate No. 23 without at the same time asking for partition of those lands that are held common to all the four estates. In the next place he has held that as subordinate talukdars the plaintiffs cannot enforce a partition as against their landlord. The Subordinate Judge notices other forcible objections to the suit, and adds that, even if the plaintiffs were entitled to a partition, it is difficult to conceive how such partition could be carried into effect.
8. In appeal it has been contended before us by Dr. Rash Behari Ghose that the decision relied on by the Subordinate Judge [Haridas Sanyal v. Pran Nath Sanyal I.L.R. 12 Cal. 566] is not applicable to the facts of the present case, and that there is no rule which would compel a plaintiff, when suing for a partition of lands in which he and the defendant are jointly interested, to ask for the partition of other lands in which third parties are also interested. In the case of Padmamani Dasi v. Jagadamba Dasi 6 B.L.R. 134 it was held that the subject-matter of a partition must be a matter of convenience. On this point we are inclined to agree with the learned pleader for the appellants that if the plaintiffs are entitled to a decree for partition, such a decree might be made as regards the lands specified as belonging to estate No, 23 without reference to the lands that are held in common as belonging to all the four estates.
9. As regards the question whether the plaintiffs as permanent talukdars are entitled to a partition as against their landlord, Dr. Rash Behari Ghose has cited as authorities upon the point the English cases of Hobson v. Sherwood 4 Beav. 184, Heaton v. Dearden 16 Beav. 147, and Baring v. Nash 1 V. and B. 551. We are of opinion, however, that this is not a matter in which English cases decided under a wholly different system of law can afford us very much assistance. The authorities relied on by the Subordinate Judge appear to be in point, and the facts in the case of Parbati Churn Deb v. Ain-ud-deen I.L.R. 7 Cal. 577 : 9 C.L.R. 170 appear to be very similar to those in the case before us.
10. The plaintiffs base their claim to partition upon their joint possession with the defendant No. 1 of the subject-matter of the suit. We take it, however, that joint possession alone is not a sufficient basis for such a claim. In order that persons may be coparceners, and so have a right to partition, it seems to us that not only must they be in joint possession of the property, but that that joint possession must be founded on the same title. We are not aware of any Indian case in which a person holding a subordinate interest in land has been held to have a right of partition as against the superior holder. In the present case the plaintiffs pay their rent to defendant No. 1, who is the putnidar of the 71/2 anna share in which is the taluk Banga Chandra Das; he is also the zemindar of a 1-anna share, and the putnidar or dur-putnidar of the other 71/2 annas. The nature of his possession is different from that of the plaintiffs; his possession is that of a subordinate tenure-holder. Such an interest does not carry with it in our opinion the right as against the superior landlord of compelling him to partition the lands in these three villages, so as to assign to the taluk Banga Chandra Das an exclusive interest in certain specific lands instead of a joint undivided interest in all the lands in these villages which appertain to estate No. 23. Such a partition could only be carried out by means of a partition between the three shares of the zemindari, viz., 71/2 annas, 71/2 annas, and 1 anna; and it could not properly be carried out in respect of these three villages only, without taking into consideration the other villages comprised in the zemindari. Moreover, it is possible--and indeed it is in evidence--that there are other taluks in these villages that would be affected by such a partition, the holders of which have not been made parties to the suit.
11. For all these reasons we are of opinion that the decree of the lower Court is correct and that the plaintiffs' suit must fail.
12. The appeal is dismissed with costs.