Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and decree dated 31.1.1983 passed by the then Additional Subordinate Judge, 4th Court, Dhanbad in Title Suit No. 41/52 of 1981-82, whereby the plaintiffs--respondents suit for partition of their 7/8th share in the suit property and for purchase of 1/8th share of defendant No. 1 at a fixed price of Rs. 37,500.00 had been decreed preliminary. 2. The suit property is a tank, description of which has been fully detailed in Schedule B of the plaint. According to the plaintiffs, they are governed by Dayabhag School of Hindu Law. Two brothers Sidam Mangal and Netai Mandal having half share each in the suit tank were the original raiyats. The two brothers had partitioned their own raiyati lands besides the suit tank as the same was not capable of partition and as such the tank was left joint, though their shares were definite having each half share. The two brothers used to rear and catch fish and then the produces i.e. the fish were being divided into two equal shares. Sidam Mandal died about 45 years ago leaving behind four sons, Bhaglu, Suku, Guzar and Jhandu. The other son Mahananda predeceased Sadam Mandal. Jhandu is plaintiff No. 1 while the plaintiff Nos. 4 to 8 are the sons of Suku Mandal and Plaintiff No. 9 is the wife of Sadam Mandal. Plaintiff Nos. 10, 11 and 12 are the daughters of late Suku Mandal. Plaintiff Nos. 1, 2 and 3 are the sons of the other brother Netai Mandal. Defendant No. 6 is the widow of Bhaglu Mandal and Defendant No. 7 is the widow of Bhaglus son Ananta. Guzar Mandal, the predecessor-in-inter-est of the defendant Nos. 2, 3 and 4 conveyed and sold to defendant No. 1 his undivided two anna share but defendant No. 1, as a matter of fact, did not exercise any act of possession and in the Chakbandi proceeding which was conducted in Topchanchi Police Station at Mauza Gunghasa where the suit tank is situated did not put forth any claim on the basis of his purchase. Sadam Mandal name was also not recorded as a co-sharer of the tank. The plaintiffs have got 14 anna share in the suit tank as plaintiff Nos. 2, 3 7 and 8 have purchased the interest from defendant Nos. Sadam Mandal name was also not recorded as a co-sharer of the tank. The plaintiffs have got 14 anna share in the suit tank as plaintiff Nos. 2, 3 7 and 8 have purchased the interest from defendant Nos. 4, 5 who again purchase the share of Bhanu Mandalain, the wife of Anant, Again the plaintiff Nos. 2 and 3 have got nine annas share and plaintiff Nos. 1 and 4 to 12 have got four annas interest and plaintiff Nos. 7 and 8 have got one anna share jointly in the tank and thus, the plaintiff in all have got 7/8th share jointly in the tank besides 1/8th share of defendant No. 1 who got it purchased from Guzar Mandal. The plaintiffs are the major co-sharers of the tank and defendant No. 1 is a stranger and transferee, he started creating disturbances in the peaceful possession of the tank by the plaintiffs. As the tank cannot be partitioned by metes and bounds and the intrinsic value of the property would be lost if the same is partitioned and as such the plaintiffs wanted to purchase the 1/8th share of defendant No. 1 but the same was not agreed upon and as such the plaintiffs have filed the present suit with the following prayers: (A) Decree for partition, the plaintiffs 7/8th share in the property (tank) described in the Schedule-B of the plaint. (B) That an order for sale under the provisions of Partition Act be passed and liberty be given to the plaintiffs to purchase the 1/8th share of defendant No. 1. (C) Decree for appointment of a Commissioner to hold auction sale of the share of the defendant No. 1. (D) A decree for all the costs of the suit. (E) A decree for any other relief or reliefs to which the plaintiffs are entitled to. 3. Schedule-A of the plaint gives the genealogy table of the two brothers Sidan Mandal and Nitai Mandal. The suit has been contested by the defendant No. 1 alone. The genealogical table as claimed from the side of the plaintiffs had not been denied and it remained admitted that the plaintiffs have got 7/8th share in the suit tank while the defendant No. 1 by purchase from Guzar Mandal has become the owner of rest of the 1/8th share. That the suit tank being joint has also not been denied. That the suit tank being joint has also not been denied. Regarding the Chakbandi proceedings, the defendants case is that he filed a Title Suit No. 178 of 1977 in the Court of Munsif at Dhanbad for declaration and injunction against the State of Bihar and others and the suit was subsequently decreed in favour of the defendant and the Circle Officer, Topchanchi thereafter in compliance of the direction made in the said suit corrected the Chakbandi by entering the name of the defendant in the Khatiyan. It has also been admitted by the defendant that the suit tank is not in a position to be partitioned by metes and bounds and it has been mentioned specifically in para 50 of the written statement in the following manner: There is absolutely no question of giving liberty to the plaintiffs to purchase the share of the defendant. If the plaintiffs so desire they may sell out their share in favour of this defendant for which he is always ready on payment of market value. The plaintiffs are not entitled to relief mentioned in para-8. All other contrary statements made in the said paragraph are denied by the defendant. 4. Thus, the point involved in the suit was as to whether the tank can be partitioned by metes and bounds and if not, whether under the Partition Act as per plaintiffs claim they should be allowed to purchase the defendants share or not. 5. On the basis of the pleadings of the parties, following issues were framed: (1) Have the plaintiffs any cause of action? (2) Is the suit maintainable? (3) Is the suit barred by limitation? (4) Is the plaintiffs entitled to a decree as prayed for? (5) Are the plaintiffs entitled to purchase the share of defendant No. 1? (6) To what relief or reliefs, if any, are the plaintiffs entitled? 6. For and on behalf of the parties, nine witnesses have been examined and some documents have also been exhibited. On behalf of the plaintiffs, three witnesses have been examined while six witnesses have been examined on behalf of the contesting defendant including P.W. 6, the defendant. Issue Nos. 6. For and on behalf of the parties, nine witnesses have been examined and some documents have also been exhibited. On behalf of the plaintiffs, three witnesses have been examined while six witnesses have been examined on behalf of the contesting defendant including P.W. 6, the defendant. Issue Nos. 4 and 5 are the vital issues in the case and the learned Court below after consideration of the position of the tank and its intrinsic value held that the tank cannot be partitioned by metes and bounds and that the defendant No. 1 being a stranger to the family, under the Partition Act the sale of the whole tank in auction would not be proper, when the plaintiffs have got the maximum share having the ancestral property and the defendant No. 1 being a stranger on purchase of a little share from one of the co-sharer, the defendants share should be auctioned and the plaintiffs would be entitled to purchase the same. Other issues being co-related to the issue Nos. 4 and 5, those had also been decided in favour of the plaintiffs and the suit has been decreed in favour of the plaintiffs ordering the two annas share of the defendant No. 1 be sold in auction, the price of which was fixed at Rs. 37,000.00 only and a preliminary decree was prepared for the auction sale of two anna share of defendant No. 1 and liberty was also given to the plaintiffs to be bidder in that auction. 7. Mr. Manjul Prasad, appearing on behalf of the defendant-appellant has attacked the impugned judgment on the following grounds: That Secs. 2 and 3 of the Partition Act had not been properly construed by the learned Court below and the Ruling of the Calcutta High Court as submitted from the side of the defendant-appellant were also not been properly gauged. His further submission is that although the pleadings in the written statement were not very proper but it came in evidence that the defendant No. 1s agricultural land just on the bank of this tank, was being irrigated from this tank and as such the defendant had got much more a necessity to get the tank in his possession and as such he should have been given the option to purchase 7/8th share of the plaintiffs. 8. Mr. 8. Mr. P.K. Prasad, appearing on behalf of the plaintiffs-respondents have controverted the submissions of the learned Counsel for the appellant, to the effect that the tank in question is the ancestral property of the plaintiffs and the defendant created trouble only after purchasing a small share from the share-holder and as such the paramount interest are of the plaintiffs to retain the bank in their possession. His further submission is that the learned Court below has rightly decreed the suit in favour of the plaintiffs when it could be found that the defendant No. 1 being a stranger should not be allowed to take away the ancestral property of the plaintiffs on purchase of a very small share in it. 9. The factual aspect regarding shares in the suit tank of the respective parties are admitted. It is also the case of both the parties that the subject-matter of the suit being a tank, its partition is not feasible and as such there was prayer from the side of the plaintiffs to purchase the share of the defendant No. 1 on the market value being fixed by the Court, or by auction to be made at the option of the Court by appointing a Commissioner. On the other hand, defendant has also made the same prayer for giving him liberty to purchase the 7/8th share of the plaintiffs, if the plaintiffs so desire (Emphasis supplied by me). So, in the circumstances of the case, it remained to decide as to how the partition can be effected either by sale of the whole of the suit tank and then give the shares in money value to the respective parties or giving liberty to either of the parties to purchase the share of the adverse party. 10. Mr. Manjul Prasad, appearing on behalf of the appellant has relied much on the decision of the Calcutta High Court as reported in AIR 1926 Calcutta, page 190 Atul Chandra Kundu V/s. Bhusan Chandra Kundu. This judgment was placed before the Court below also. 11. Before going to the decisions of the High Courts and Supreme Court, first of all, it is required to go through the Secs. 2 and 3 of the Partition Act, 1893. This judgment was placed before the Court below also. 11. Before going to the decisions of the High Courts and Supreme Court, first of all, it is required to go through the Secs. 2 and 3 of the Partition Act, 1893. Under Sec. 2 of the Act, power has been given to the Court to order sale instead of division in partition suits whenever it could be found that subject-matter of the partition cannot reasonably or conveniently be made, and that a sale, of the property and distribution of the proceeds would be more beneficial for all the share-holders, but such sale can be made on the earnest of any such share-holders interested individually or collectively to the extent of one moiety or upwards. Sec. 3 of the Act contemplates the Procedure when one of the share-holders undertakes to buy. Sec. 3 is a corollary to Section 2 of the Act giving liberty to one of the share-holders to buy the other shares of the adverse party at the option of the Court. 12. In the ruling of the Calcutta High Court as mentioned above, two annas share-holder was given option to buy the 14 annas share but the same was reversed by the 1st Appellate Court holding that the plaintiffs cannot be compelled to sell his 14 annas share at a valuation fixed by the Court. The main reason for setting aside the 1st Appellate Courts Judgment was that there was no such order of sale at the request of the defendant, rather the order of sale was being asked by the plaintiffs, who had 14 annas hare. When the plaintiff has requested for sale of the property and then under Sec. 3 of the Act, the defendant has given the option to purchase the 14 annas share then it cannot be said that there was any compulsion on the plaintiff to sell his 14 annas share and as such the order of the Original Court was restored by the Division Bench judgment of the Calcutta High Court. The position in the present case is not the same as that of the facts mentioned in the Calcutta case. Here, in the present case, none of the parties have asked for sale of the suit property, rather both parties have asked for purchase of the shares of the adverse party. The position in the present case is not the same as that of the facts mentioned in the Calcutta case. Here, in the present case, none of the parties have asked for sale of the suit property, rather both parties have asked for purchase of the shares of the adverse party. The principle of Owelly would definitely come into play in the present case. Both parties have relied on the judgment of the Supreme (Court as reported in -- , Badri Narain Prasad Choudhary and Ors. V/s. Nil Ratan Sarkar. It was held by the Apex Court that request by the share-holder for sale of property under Sec. 2 of the Partition Act is sine qua non for directing the sale and when such request is lacking then the Court may proceed to decide the matter when the Partition Act having come into play for distribution in such a way that the same be beneficial more to the share-holders, Court has its discretion to direction or not to direct sale of the properties and distribution of the proceeds because the word may has been used under Sec. 3 of the Act. When the cases are not being governed under Secs. 2 and 3 of the Partition Act then it rests on the Court to partition property by co-relative method and which is found to be more convenient in the circumstances of the case on complying the principle of Owelty which means the right and interest of the parties in the property would be separated only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. 13. While deciding the case, the Apex Court has referred to a Division Bench judgment of the Andhra Pradesh High Court as reported in AIR 1958 AP 647 R. Ramaprasada Rao V/s. R. Subbaramaiah and Ors. Partition is a legal process by which unity of title and possession of co-owners are disrupted giving separate title and possession to each of the co-owners. But, when the property becomes either so small or intrinsically not possible to partition then convenient and collective methods are resorted to so that the immoveable properties may not be wasted or lost of its intrinsic worth. But, when the property becomes either so small or intrinsically not possible to partition then convenient and collective methods are resorted to so that the immoveable properties may not be wasted or lost of its intrinsic worth. Although, in the present case, both parties are resorted to the provisions of the Partition Act, but, practically those provisions have not been properly been urged. Sale of the suit tank had not been asked by any of the parties and as such Sec. 2 of the Act was not available in the present case, rather both the parties have resorted to Section 3(2) which is completely dependent on Sec. 2 as already mentioned. That Sec. 3 is nothing but a corollary to Sec. 2. When both parties have claimed to purchase the share of the other party then it remains with the Court to apply the principle of Owelty as to which would be the convenient method to get the property divided so that the intrinsic worth of it may not be lost. 14. The admitted position of the present case remains that the plaintiffs are owners of 14 annas share and the suit tank is the ancestral property of the plaintiffs. Only a small portion i.e. two anna share had been purchased by the defendant that too he was not coming up for any possession and in Chakbandi proceeding also he did not appear and contest, although afterwards he got a declaration in respect of his share from the Civil Court. The fact remains that the defendant is an outsider and stranger and came to acquire a small portion of the suit tank by purchasing the share of two annas share-holder. In that view of the matter, the defendant being a stranger cannot have a better interest than that of the plaintiffs who were possessing the suit tank since the days of their ancestors. Definitely, the plaintiffs would be in the better footing to retair the suit tank as a whole being their ancestral property and it was also come in the evidence of the plaintiffs side that the suit tank was being used by them for rearing and catching fish and also for the irrigating and both etc. when their ancestral house is just 200 yards away from the suit tank. when their ancestral house is just 200 yards away from the suit tank. On the other hand, defendant in his written statement had not pleaded as to how he was using his share in the suit tank. Only at the time of evidence, he said that his agricultural land is situated on the northern bank of the suit tank and the water of the tank was being used by him for irrigating his agricultural land. But, that agricultural land is not just by the bank of the tank rather in between his land and the suit tank there is land of another person. Moreover, such sort of pleading of irrigating the agricultural land through the suit tank has never been pleaded in the pleadings. Thus, it cannot be said that the defendants need is more than the plaintiffs in the suit tank. 15. Mr. Manjul Prasad, for and on behalf of the appellant has admitted that the pleadings on behalf of the defendant is not very happy but when the fact of irrigation came in the evidence he ought to have been allowed to make some amendment in his pleadings and some more evidence might come, if both parties are allowed to give more evidence regarding the intrinsic worth of the suit tank in their respective favours. 16. I am not inclined to accept the version of the learned Counsel for the appellant. They have got ample opportunity in the Court below when they had pleaded for purchase of the 14 annas share of the plaintiffs then it was his duty to plead his intrinsic worth regarding the suit tank. Now, at the appellate stage, when there is no petition, nothing of the sort either for additional evidence or for amendment of the written statement, such sort of submission on the part of the learned Counsel for the appellant is redundant. Although, in the impugned judgment, the learned Court below did not make any specific observation regarding the principle of Owelty but on reading the judgment as a whole, it could be found that the learned Court below has also applied the same principle while giving liberty to the plaintiffs to purchase the 1/8th share of the defendant, after getting the property bidded for sale in auction. On the principles of law, when the facts and admitted in the case. On the principles of law, when the facts and admitted in the case. It find that the lower Courts view is just proper and justifiable in decreeing the plaintiffs suit and ordering in the way as has been done. 17. In the result, the appeal fails with costs and the impugned judgment and decree passed by the learned Court below is hereby upheld and confirmed.