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16. In such a contingency if any other co-sharer offers to buy at a valuation the plaintiff's, share, the Court will make an order to that effect as provided for in Section. 3(l), but where more than one co-sharer applies for leave to purchase the-plaintiff's share at a valuation, the Court will under Section 3(2) direct a sale among the co-sharers, at a sum in excess of a valuation to be made by the Court. Section 4, Partition Act, deals with a special class of cases where a dwelling house has been purchased by a stranger. This provision is complementary to Section 44, Transfer of Property Act. Sections 6 and 7 deal with procedure to be followed at the sale which may be directed under: the Act. Section 8 provides for an appeal against an order under Sections 2, 3 or 4. Section 9 provides, that in a suit for partition the Court may, if it thinks fit, make a decree for partition of part of the property to which the suit relates and a sale-of the remainder under the Act. A conspectus of these sections clearly indicates that the Partition, Act conferred on the Court in a suit for partition a power of sale in certain specified cases. No general power of sale can be spelt out from the provisions of the Act. On the other hand the implication is that the legislation did not intend to confer on the Court a power of sale apart from the provisions of the Partition Act. The contrary view suggested on behalf of the respondents would make the Partition Act unnecessary.

28. The result of the above discussion in my opinion is that there is no current of authority which would establish that in a suit for partition the Court possesses a power to direct a sale apart from the Partition Act. In my opinion, in the absence of clear authority which binds us, it is open to us to come to a conclusion based on the terms of the Act looked at from the historical perspective. In my opinion the effect of the Partition Act cannot be whittled down by drawing upon some undefined and uncertain inherent powers in Courts to direct a sale in lieu of partition where the invitations of the parties to the Court is merely to make a partition between the co-sharers inter se. The power of the Court to direct a sale in a suit for partition must be held to be limited to the cases provided for within Partition Act.

30. Nothing can be spelt out from the provisions contained in Section 37(2), Bengal, Agra and Assam Civil Courts Act 1887 to which Mr. Chatterjee referred us. The provision was not intended to get round the express terms of the Partition Act. The provision was intended for entirely different purpose to arm the Court with residuary powers in cases where either the Hindu Law or the Mahomedan Law is otherwise silent. I have already stated teat the Partition Act has a clear implication about the non-existence of inherent powers in the Court to direct a sale in lieu of partition in cases not covered by the Partition Act. Nor do the provisions of Section 396, Civil P. C, 1882 or the provisions contained in Order 26, assist the respondents. Section 396 of the Code of 1882 rather supports the position that under the then state of the law the Court had only power to partition, and not to direct a sale. The provisions of Order 26, Civil P. C., merely lay down the mode in which the Commissioner will do his, duty in making allotments. Nor can any inference be drawn from the general words of Order 20, rule, 18, which empowers the Court while passing a preliminary decree for partition to give further directions. Such directions mean directions which relate to the working out of the preliminary decree for partition and 1952 Cal/113 & 114 cannot be invoked as conferring on the Court a substantive power of sale apart from partition.

31. Mr. Chatterjee also referred us to the case of Hari Charan Bera v. Fakir Chandra Sao, 40 Cal. W. N. 955. The facts which led this Court to direct a sale under Section 3, cannot be gathered from the judgment which is somewhat cryptic and does not state all the facts. The decision merely dealt with the argument which was addressed to this Court.

32. The question then remains whether we should direct a partition of the banks keeping the watery portion of the tank joint between the parties.

33. I have already referred to Section 9, Partition Act, 1893. That section does not confer an independent power of sale. It is merely an enabling section and not an empowering section. It merely entitled the Court in a suit for partition to direct a partition of a portion of the property in suit and a sale of the remainder. Mr. Chatterjee referred us to the decision of Jadu Nath v. Haran Chandra, 36 Cal. L. J. 217. That case however turned on an entirely different set of facts, as Mookerjee J. rightly pointed out; in that case the Court had directed a sale of the allotment of one of the co-sharers. It did not decide the true meaning of Section 9, Partition Act. In my opinion, Section 9, Partition Act is sufficiently wide to enable the Court to direct a Sale of the banks if that is possible, keeping the watery portion of the tank joint between the parties.