Das Gupta, J.

1. The question for decision in this appeal is whether the purchaser in a revenue sale of a residuary share of a touzi is entitled to have on a partition of the touzi allotments even in those lands for which separate accounts under sec. 11 of Act XI of 1859 have been recorded. The Plaintiff is a purchaser at revenue sale of the residuary share in the Touzi No. 65 of the Howrah Collectorate, the residuary share being 1 anna 5 gandas odd share. There have been a number of separate accounts opened from time to time, some under sec. 11 and some under sec. 10 of Act XI of 1859. The Plaintiff, in the suit for partition out of which the appeal has arisen, has claimed that he acquired an undivided 1 anna 5 gandas odd share in respect of every bit of land comprising the touzi and was not bound by the fact that other co-sharers were in exclusive possession of specific plots of land in the touzi.

2. The contesting Defendants contended that as the owners of separate accounts opened under sec. 11 of the Revenue Sales Act they were entitled to continue to hold their lauds without those being put in the melting pot for the purpose of partition. It appears that they brought in also a case of previous partition.

3. The Courts below found that the story of previous partition had not been proved. It appears that they also came to the conclusion that the fact that some of the lands in the touzi were in possession of persons who were owners of separate accounts opened under sec. 11 of Act XI of 1859 would not stand in the way of the Plaintiff getting partition of the touzi as a whole and getting allotment as might seem convenient even out of those shares. The final order passed was that the partition would be effected by the Collector or by his subordinates in accordance with the provisions of sec. 54 read with Or. 20, r. 18 of the Code of Civil Procedure. If the Collector was unable to effect the partition, a Commissioner appointed by the Court was to effect the partition. The decree provided for partition to be made under the provisions of the Estates Partition Act. If sec. 5 of the Estates Partition Act is given effect to it necessarily follows that the Plaintiffs claim that he would get a share in respect of every bit of land comprising the touzi and would not be affected by the fact that the contesting Defendants were in exclusive possession of some specific plots of land in the touzi, would fail.

4. It was contended before us by Mr. Gupta on behalf of the Appellants that the learned Courts below failed to see the distinction between a separate account opened under sec. 10 and a separate account opened under sec. 11 of Act XI of 1859. He contended that whereas when the purchaser of the residuary share would be entitled to get an allotment in any portion of every bit of land in the touzi it the separate accounts were only under sec. 10 of the Act, he would not be so entitled as regards the lands far which there has been a separate account spend under sec. 11 of the Act on the ground that they were in the separate possession of some of the proprietors only. This contention is in our opinion correct.

5. The point is covered by the authority, namely, Fakir v. Nabadwip (1). In that case it was held that the purchaser of a specific portion of the land of an estate separately recorded under sec. 11 of Act XI of 1859 could not claim a butwara of the whole estate and obtain a share of the whole land proportionate to the salar jama paid by him. The necessary conclusion from this is that the purchaser of a residuary share of an estate cannot in a partition obtain any portion of the land for which a separate account has been opened under sec. 11 of Act XI of 1859 and which has not been in the possession of the previous holder of the residuary share. We are unable to agree with the learned District Judge that this case is distinguishable from the present case. The fact that the property which was the subject-matter of the separate account was one () mouza in Fakir v. Nabadwip (864 W.R. 59), whereas in the present case the properties said to have been recorded under separate acocunts are lands in different mouzas cannot in any way affect the principle on which that case was decided. Therefore, the Plaintiffs contention, that he was entitled to a share of every bit of land comprising the touzi must fail.

6. Dr. Sen Gupta, who appeared for the Respondent, has agreed that the decision in Fakir v. Nabadwip (864 W.R. 59) is not distinguishable and concedes that the Plaintiff will not be entitled to gel any allotment in the lands which are in the specific possession of the owner of a separate share recorded under sec. 11. He says that the decree as passed by the learned Court below will necessarily have this effect.

7. It is necessary, however, in view of the decision of the learned Courts below that the Plaintiffs contention that he is entitled to every bit of land in the touzi should succeed, to point out clearly that this decision is wrong in law. The correct position in law is that while there would be a partition of the entire estate the Plaintiff would be entitled to have no allotments in those lands which are in the specific possession of persons other than the previous holder of the residuary share on the basis of separate shares recorded under sec. 11 of Act XI of 1859.

8. We accordingly direct in modification of the order passed by the learned Court of Appeal below that the partition will be effected as directed by the Court below in the light of our finding as mentioned above.

9. There will be no order as to costs. The records to be sent down without delay.

Lahiri, J.

I agree.