PRABHAWATI DEVI Vs. IIND ADDL DISTRICT JUDGE GHAZIPUR

JUDGEMENT

(1.) G. P. Mathur, J. The petitioner Smt Prabhawati Devi filed Original Suit No. 53 of 1977 for partition of her 2/5th share in the property in dispute situate in mohalla Khodaipura in Ghazipur which was decreed on 4-9-1981 by the Civil Judge Ghazipur and a preliminary decree for partition was passed. Aggrieved by the judgment and decree Rahat Ullah filed Civil Appeal No. 4 of 1982 and Syed Zainul Nabi filed Civil Appeal No. 11 of 1982 which were both dismissed bv 1st Additional District Judge on 1-5-1986. Thereafter, proceedings for preparation of final decree were commenced wherein Rahat Ullah moved an application under Section 4 of the Partition Act. This application was allowed by the Civil Judge by the judgment and order dated 20-11-1987 and it was directed that Rahat Ullah may take neces sary steps for ascertaining the valuation of plaintiff's 2/5th share and plaintiff-Smt. Prabhawati Devi was directed to execute a sale- deed of her share in favour of the applicant. This order was challenged by the plaintiff Sm I. Prabhawati Devi by filing a Revision which was dismissed by 2nd Additional District Judge on 1-2-1991. As the second Revision is barred on account of U. P. Amendment to Section 115, CPC, the plaintiff has preferred the present writ petition under Article 226 of the Constitu tion and has sought quashing of the orders dated 20-1 l-1987and 1-2-1991.

(2.) SRI R. N. Singh, learned Senior Counsel for the petitioner has submitted that the impugned orders wherein the plaintiff has been directed to execute a sale-deed of her 2/5th share in favour of Rahat Ullah is illegal as his plea which is based upon Section 4 of Partition Act, has not been examined on facts by any Court. It is urged that in order to attract Section 4 of Partition Act, it is necessary that a share in a dwelling house belonging to an un divided family should have been trans ferred to a person who is not a member of such family but in the present case a share in a dwelling house was not transferred as the house in dispute had been mortgaged and was also in occupation of a tenant. Dr. R. G. Padia, learned Senior Counsel for the respondent has, on the other hand, urged that in view of the earlier judgment and order dated 1-5-1986 of 1st Additional District Judge, it is not open to the petitioner to raise such a contention. It is urged that a finding has already been recorded in the aforesaid judgment. and order that the respondent No. 3 is entitled to the benefit of Section 4 of the Partition Act which finding having become final, the plea of the petitioner is barred by prin ciples ofresjudicata.

(3.) IT may be pointed out that in the written statement the defendants denied the plaintiffs case that she had any share in the property in dispute of that the plaintiff was entitled to redeem the share of defen dant second set over house No. 88 on pay ment of due money or that she was entitled to claim relief for recovery of Rs. 682/- as rent and damages. The issues framed in the suit have been quoted in the judgment and order dated 1-5-1986 of the 1st Additional District Judge and it shows that no issue regarding giving of benefit of Section 4 of Partition Act was framed. In fact, during trial of the suit neither any plea was raised nor any issue was framed nor any finding was recorded regarding applicability of Section 4 of the Partition Act. Certified copy of the decree of Civil Appeal No. 4 of 1982 has been filed on 10-4-1998 alongwith a supplementary affidavit by the respondents and this shows that no ground regarding applicability of Section 4 of the Partition Act had been taken in the grounds of appeal. IT appears that during the course of hearing of appeal before the lower appellate court, an argument was raised on this point and it was in these circumstances that the learned Additional District Judge framed point No. 5 about the applicability of Section 4 of Partition Act. While examining a plea based on Sec tion 4 of Partition Act, the basic question to be considered is whether it is a "dwelling house". The expression "dwelling house belonging to an undivided family" has been borrowed from Section 44 of T. P. Act and it refers to the family dwelling house and does not mean any house for human dwelling belonging to an undivided family. A house which is in occupation of tenants or which has been mortgaged with posses sion to third party does not come within the ambit of the Section. In order to attract the provisions of the Act, it is necessary that the house either be actually in use of the family or that the conditions are such that it is still possible for the family mem bers to return to the occupation of the house at some future date. In Narshimaha Muni v. Susheelabai, AIR 1996 SC 1826 while considering the provisions of Sec tion 23 of Hindu Sucession Act it was held that a house tenanted brings in strangers and it ceases to be a dwelling house in habited by members of the family. The case set up by the plaintiff as well as the judg ment of Additional District Judge dated 1-5-1986 shows that the house No. 88 had been mortgaged. In fact this question has been considered in the judgment under Point No. 4 and it was observed that the plaintiff could redeem the mortgage and recover possession of the property. The basic question as to whether the house in dispute was a "dwelling house" has not at all been considered either by the trial Court or by lower appellate court at the stage of passing of preliminary decree nor there is any finding on this point. As no finding had been recorded by any Court on this point, it is always open to the plaintiff to show at the subsequent stage when such a plea was raised at the stage of prepara tion of final decree that the property in dispute was not a "dwelling house" so as to attract the provisions of Section 4 of the Partition Act and the bar of res judicata cannot be pleaded against her.