- (1.) The plaintiffs hold under a patni lease 13as. 6g. 2c. 2k. of an estate called Taraff Kusba in Rajshahye; and the defendants under a distinct patni granted by co-sharers in the Zamindari entitled to such fractional share, hold 2as. 13g. 1c. 2k in the same estate Taraff Kusba. The plaintiff sues for partition, alleging that she has suffered inconvenience and loss in consequence of the defendants' attempts to enforce the cultivation of indigo. The first Court decreed a partition. The Judge reversed this order and dismissed the suit. From this decision the plaintiff appeals. Several oases were referred to by the Judge and one not noticed by him was cited before us : Banimadhub Bose v. Pearee Lal Mundul S.D.A. Rep., (1853) 536; Mathur Chunder Kurmokar v. Manik Chunder Bungo 6 W.R. 192; Oomesh Chunder Shaha v. Manick Chunder Bonick 8 W.R. 128; Gouri Sankar Roy v. Anand Mohan Moitro 9 W.R. 478.
(2.) The Judge attempts to distinguish the present case from those cited on the ground that the parties here are patnidars. But we think it may be laid down broadly that in all cases of joint ownership each party has a right to demand and enforce partition; in other words a right to be placed in a position to enjoy his own right separately and without interruption or interference by others : see Spence's Equitable Jurisdiction, Vol. 1, page 653; Story's Equity Jurisprudence, sections 648-649.
(3.) The zamindars have nothing to do with this question. They have been made defendants, and had they merely appeared for the protection of their own interests, they would have been entitled to their costs. Those who have appeared and opposed the partition must bear their own costs. The partition will of course not affect the liabilities of the parties under their several contracts with the zamindars. The decision of the lower appellate Court must be reversed. The respondents must pay the costs of the appeals in the lower appellate Court and in this Court. The case must be remanded to the first Court, in order that an Ameen may be appointed to survey and make a partition as between the plaintiffs and the defendants; on the Ameen making his report, either party will be at liberty, if dissatisfied to except to it in the usual way. The costs of the suit in the first Court and of the partition are the necessary expenses of obtaining a partition by a decree of Court caused not by any wrongful act of the defendants, but by the nature of the tenancy, viz., a tenancy of an undivided share of an estate. The plaintiff for her own advantage, convenience, and security is desirous of exercising her right of exchanging her undivided share for an equivalent share of that estate to be held in severalty. The defendants hold subject to the plaintiff's right to demand such partition. The plaintiff and principal defendants must therefore each bear their own costs of the suit in the first Court, and the costs of the partition will be divided between the parties in proportion to their respective shares in the estate.;