DULAL CHANDRA CHATTERJEE Vs. GOSTHABEHARI MITRA

JUDGEMENT

(1.) This appeal raises a short point under Section 4, Partition Act.

(2.) The facts which have led up to this appeal are as follows. There is a house situated within the limits of Konnagar Municipality which was owned at one time by one Nilmoni Mitra and on his death devolved on his four sons, Tinkari, Bishnu Charan, Gangacharan and Gostha Behari. By three separate conveyances executed on three different dates in 1948 the appellant, Dulal Chandra Chatterjee, purchased the respective shares of Tinkari, Bishnu Charan and Gangacharan, and thereafter he filed a suit for partition. In that suit the remaining brother Gostha Behari, who is the respondent in this appeal, made an application under Section 4, Partition Act, praying that he might be allowed to buy the shares purchased by the plaintiff at a valuation fixed by the Court. That application was met by the appellant with the objection that the application did not lie, inasmuch as the house concerned had been let out to tenants long ago and had therefore ceased to be a 'dwelling house' within the meaning of Section 4, Partition Act. The learned Second Subordinate Judge of Hooghly declined to give effect to that objection and avowed the application made by the respondent. Thereupon the present appeal was preferred.

(3.) Neither of the parties led any evidence before the learned Judge and the matter seems to have been dealt with as on a demurrer. We also, therefore, have to proceed on the basis that the statements made by the respondent in his application or in his reply to the objection filed by the appellant are correct. In the absence of evidence the facts, therefore, must be collected from those applications and petitions of objection.