1. This is an appeal against a decision of the SubordinateJudge of the 24-Pergunnahs, dated the 29th August 1905.

2. The appeal arises out of a suit for partition. The areaof the land to be divided is very small. The land consists of 3 plots, one of 7cottahs on which a dwelling-house has been erected, another near thedwelling-house consisting of 1 bigha, 6 cottahs and a tank the area of which is1 bigha. The plaintiff has been found to have a 1/10th share in plots Nos. 1and 2 and 1/20th share in plot No. 3.

3. The Munsif has held that, as the defendants have erecteda dwelling-house on the plot of 7 cottahs and have done so without oppositionon the part of the plaintiff; or his predecessor in interest, and as this plotconstitutes the family dwelling-house of the defendants, while the plaintiff isa stranger to the family, it will be very inconvenient to every one concerned,if plots Nos. 1 and 2 be divided by metes and bounds. He has, therefore,allowed the defendant to buy up the plaintiffs share at a proper valuationthereof. The learned Subordinate Judge has affirmed the decision of the Munsifon this point.

4. Then, with regard to the tank, the Courts below havefound that it is not convenient to divide it and have, therefore, left itjoint.

5. The plaintiff appeals to this Court and argues, first,that the Courts below are wrong in applying section 4 of Act IV of 1893;secondly, that the plaintiff is entitled to partition of the tank; thirdly,that the procedure laid down in section 4 of Act IV of 1893 has not beenfollowed; fourthly, that the basis of the valuation adopted by the Munsif isnot correct, and, fifthly, that the question of the share of the plaintiff inplots Nos. 1 and 2 is not barred by res judicata.

6. In our opinion there is no force in any of these pleas.

7. It seems to us from the manner in which this case hasbeen argued before us that no mode of partition whatever would satisfy theplaintiff. The objections to the partition affected by the lower Courts seem tous perverse and unreasonable. The Munsif and the Subordinate Judge have, wethink, very properly not allowed any partition of the 7 cottahs plot upon whichthe defendants, to the knowledge of the plaintiff, erected theirdwelling-house. It would certainly be very inconvenient and improper to haveat-tempted to divide this plot, particularly as the plaintiff is a stranger tothe family of the defendants, and has a right only to a 1/10th share in it.

8. Similarly, plot No. 2 should be left in the enjoyment ofthe occupants of the dwelling-house erected on plot No. 1. It is the meresttechnicality to say, in the first place, that section 4 of Act IV of 1893 doesnot apply to the partition of this 1 and, and then to argue that the Courtshave not adopted the procedure laid down in section 4 of Act IV of 1893.Whether section 4 of Act IV of 1893 applies or not, it is a well knownprinciple of equity, which must be adopted in all partition cases, that, whenit is inconvenient to divide a property, that property must be left in thepossession of the person in occupation, and the other person who cannotconveniently get actual possession compensated.

9. As for the tank, it appears to us to be perverse in theextreme for the plaintiff to attempt to insist on a partition of it. He hasonly a 1/20th share on it. The tank is 1 bigha in extent; and it wouldcertainly be very inconvenient, if not impossible, to divide such a tank into20 parts and to give the plaintiff his due share. It appears to us a veryexcellent arrangement for the plaintiff that the tank should remain in theenjoyment of himself and the other coparceners.

10. Then, with regard to the 4th plea of the appellant, thatthe Courts below have not adopted a proper basis of valuation, it appears to usthat, if anything, they have given the plaintiff too much compensation. Theplaintiff in his plaint valued the whole of the 16 arrears of the property atRs. 85. For the purpose of Court-fee duty, he has valued the suit at Rs. 115;and for the purposes of jurisdiction at Rs. 530. Now, the Munsif has notadopted the market-value or the Court-fee value, but the value for the purposesof jurisdiction and has given the plaintiff his shave according to that value,namely, on Rs. 530.

11. Then, with regard to the last plea, that the question ofthe share of the plaintiff in plots Nos. 1 and 2 is not barred by res judicata,that appears to us to be entirely unreasonable. The pleader for theplaintiff-appellant admits that his clients share in the tank has been foundto be 1/20th in the previous litigation. But, he says, that this only appliesto plot No. 3, and that is then no res judicata as to plots Nos. 1 and 2. TheSubordinate Judge has not found that there is any res judicata with regard tothe plaintiffs share in plots Nos. 1 and 2. But the Munsif has found that hisshare in plots Nos. 1 and 2 is 1/10th. That finding has been affirmed by theSubordinate Judge and it concludes us.

12. This appeal is accordingly dismissed with costs.

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Basunta Kumar Ghoshvs. Moti Lal Ghosh (11.06.1907 -CALHC)