ZAMIR AHMAD Vs. SAMSON CLAUDIUS

JUDGEMENT

(1.) This is a second civil appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.1.1982 passed by the District Judge, Bahraich dismissing the appellant's appeal against the judgment and decree of first Additional Munsif, Bahraich, dated 7.11.1981 in Regular Suit No. 216 of 1970 allowing the plaintiffs' application under Section 4 of the Indian Partition Act.

(2.) I have heard Shri Mohd. Arif Khan, the learned counsel for the appellants and Ms. Veena Sinha, the learned counsel for the respondents on the substantial questions of law formulated in the memo of the appeal.

(3.) It appears that Samson Claudius, Wilson Claudius, Churchill Claudius and Mrs. Pyari Claudius, four persons had filed a suit for partition against Smt. Ester Zondin and Miss Ruth Claudius as defendant Nos. 1 and 2 and Zamir Ahmad, a stranger to the family being purchaser of the share of the defendants for partition of a house detailed at the foot of the plaint. This suit was decreed after passing of the preliminary decree for partition an application for final decree was moved but it was not pressed. Thereafter, Samson Claudius and others the plaintiffs of the suit moved an application under Section 4 of the Indian Partition Act. This application has been allowed against which an appeal was filed by the appellant Zamir Ahmad and that appeal has also been dismissed by the impugned judgment dated 23.1.1982. At the time of hearing of the application under Section 4 of the Indian Partition Act, the appellant filed objections to oppose the application under Section 4 of the Indian Partition Act. The appellant raised two objections ; firstly that the disputed house was not a dwelling house but it is only a 'khandahar' and secondly, the application under Section 4 of the Indian Partition Act moved by the plaintiff is not maintainable. The learned Munsif held that the disputed house is a dwelling house. The learned Munsif also rejected the contention of the appellant about the maintainability of the application under Section 4 of the Indian Partition Act moved by the plaintiff. After relying on a decision of Calcutta High Court in Satish Kumar Mitra v. Kaliappa, AIR 1981 Cal 278, in which it was held that Section 4 of the Partition Act applies even where the suit for partition was not filed by the transferee (stranger) himself.