JUDGMENT 1. This is a suit for partition, but of a novel character. The Plaintiffs are mokuraridars, of a 3 annas 4 pies share of mouzahs Kalapahar, Nimajorha, and Muruli Khurd. The mokurari was, however, granted by the ancestors of the Defendants Nos. 2 to 4; it was renewed by these Defendants in the names of the Plaintiffs Nos. 1 and 3 only. The Plaintiffs seek for partition of the lands of the mehals, claiming a 3 annas 4 pies share of them as against the proprietors of the mouzahs. Defendant No. 1 is an 8 annas co-sharer. He has no objection to the partition. The Defendants Nos. 2 to 4 are the proprietors of the remaining 8 annas proprietary interest. They are in direct possession of a 6 pies share of this interest. The other Defendants, viz., Defendants Nos. 5, 6 and 7 have a mokurari interest in the remaining 71/2 annas share. These last-mentioned Defendants do not resist the Plaintiffs' claim. It is the Defendants Nos. 2 to 4 who alone do so. The Subordinate Judge has allowed partition, and has passed a preliminary decree, directing it to be carried out. 2. The Defendants Nos. 2 to 4 now appeal. On their behalf it has been urged--(1) that the suit is not maintainable, as tenure-holders cannot sue their landlords for partition; (2) the Plaintiffs as co-sharers only in the mokurari cannot sue for partition; (3) that the Defendants Nos. 2 to 4 do not recognise the Plaintiffs Nos. 2, 4 and 5 and the Defendants Nos. 6 and 7 as their tenants; (4) that as there was a previous suit for partition, which was withdrawn without leave to bring a fresh suit, the present action is barred by the provisions of sec. 43 of the Code; and (5) that it has not been made out that any inconvenience will result from not partitioning the property, but, rather, the contrary. 3. The four last-mentioned pleas do not seem to us to have much force; but it is not necessary for us to consider them, as, in our opinion, the first ground of appeal must prevail. 4. There are not precedents for such a suit as this. No case has been cited to us which is exactly in point. Our attention has been called to the cases of Parbati Charan v. Ainuddin ILR 7 Cal. 4. There are not precedents for such a suit as this. No case has been cited to us which is exactly in point. Our attention has been called to the cases of Parbati Charan v. Ainuddin ILR 7 Cal. 577(1881), Mukunda Lal v. Lehuraux ILR 20 Cal. 379 (1892) and the Full Bench case of Hemadri Nath Khan v. Ramani Kant Roy ILR 24 Cal. 575 (1897) The first of these has no application. In the second, the principle that to entitle a person to partition there must not only be joint possession, but the possession must be founded on the same title, was laid down. On this principle the Plaintiffs have no right to partition. But the ratio decidendi of Mukuuda Lal v. Lehuraux ILR 20 Cal. 379 (1892) was disapproved of in the third case cited to us, viz., the Full Bench case of Hemadri Nath v. Ramani Kant ILR 24 Cal. 575 (1887). This case was one brought by a zemindar, a 10 annas co-sharer, for partition against a putnidar of a 6 annas share. It was held that the Plaintiff was entitled to partition in the circumstances of the case. But the learned Judges of the Full Bench laid dawn no general rule. on the contrary, Mr. Justice Banerjee, who delivered the judgment of the Court, said :--"I think the Court must in each case determine whether having regard to the nature of the interest owned by the parties and to all other circumstances necessary to he taken into consideration, the balance of convenience is in favour of allowing partition, and if it determines that question in the affirmative, the mere fact of the parties owning interests which are not co-ordinate in degree, ought not to be a bar to partition." Hence it is clear that the fact that the Plaintiffs are mokuraridars and the Defendants or some of them are proprietors, will not bar the partition sought for in this case. But the learned Judge in the body of his judgment observed: "As to the second ground the only reason that might be urged in its support is that if partition can be enforced as between co-owners whose interests are not co-ordinate in degree, parties having permanent interests may be put to frequent and needless expense and trouble by having to watch partition proceedings instituted at the instance of co-owners with temporary interest, such proceedings not leading to any division of the property which can have a lasting effect. But, in the present case, no such reason can hold good: in the first place, because the party who is asking for partition is the holder of the higher of the two kinds of interest respectively owned by the parties to the suit, his interest being that of a zemindar, so that there can be no apprehension of the division effected not having an enduring effect; and, in the second place, because the interest owned by the party against whom partition is sought, though subordinate to that of the Plaintiff, is certainly not of a temporary and qualified character such as would make it undesirable to have a partition against him and to subject him to the trouble and expense of a partition proceeding." Again, Mr. Justice Beverley in his judgment in the case has said :--"The right to a partition can only, in my opinion, exist as between co-parceners holding similar interests in the property. How 'similar interests' should be defined it may not be easy to say. They should probably be permanent, transferable interest. A temporary leaseholder of an undivided portion of an estate ought not, in my opinion, to be allowed to put his lessor to the trouble and expense of a partition." 5. The rule to be deduced from these passages would seem to be that partition should not be allowed when the interests of one or more of the persons owning interests in the property to be partitioned is of a temporary and qualified character-- is not a permanent and transferable interest--and when there may be apprehension that the division effected may not have an enduring effect. 6. Now to apply these rules to this case. 6. Now to apply these rules to this case. The interests of the holders of the mokurari in 71/2 annas share of the properties would seem to us not to be of a permanent and transferable nature, but to be rather of a temporary and qualified character for two reasons :-- (1) that the mokurari is by the terms of the lease of the 16th September 1865 to become null and void on default of payment of three instalments of the mokurari rent Hence the mokurari may cease at any time. (2) Then there is a further clause prohibiting alienation subject to the some penalty. Alienation of part of the mokurari interest has no doubt taken place and been condoned, but on the Defendants Nos. 2 to 4 instituting a suit to cancel the mokurari on the ground of this alienation, the present Plaintiffs Nos. 1 to 3 at once compromised the matter with them by paying a bonus of Rs. 500 and costs, and obtaining a distribution of the rent. This was effected by the ekrarnamah of 6th April 1896. But the Defendants Nos. 2 to 4 do not appear to be bound to overlook and condone any future alienation of any other portion of the mokurari interest. 7. In these circumstances, it seems to us, that the interests of the Plaintiffs in this case are not of such a permanent and transferable nature as to ensure that any division that may now be effected will be of enduring effect. For this reason, we do not consider them entitled to partition against the wishes of the Defendants Nos. 2 to 4. We, accordingly, set aside the decree of the Judge in the Court below and decree this appeal with costs.