DURGAPADA PAI Vs. DEBIDAS MUKHERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit tor partition. The suit land is comprised in plot No. 3004 Khatian No. 356 of mouza Kashigram. There is no dispute that the plaintiff is the owner of -/8/- as share in the suit property purchased from defendants Nos. 2-3 out of their 2/3rd share The defendant No 1 inherited his 1/3rd share in the property and purchased the remaining 1/6th share from the defendants Nos 2 and 3 thereby acquiring 1/2 share of the property. The suit land measured 5 decimals and is recorded as a Bas-toc with one ghar. The plaintiff instituted a suit for partition and in that suit the defendant No 1 filed an application under Section 4 of the Partition Act for pre-emption of the plaintiff's share alleging that the disputed property was the dwelling house of the undivided family of the defendants contemplated in the said section. The plaintiff opposed the said prayer contending that the co-sharers never possessed the disputed property as the dwelling house and they had no intention of using the same as the dwelling house.

(2.) The trial Court on evidence accepted the plaintiff's contention and rejected the application filed under Section 4 by defendant No. 1 and decreed the suit in a preliminary form directing the defendant No. 1 to effect partition by allotting the northern half to the defendant No. 1 himself and southern half to the plaintiff, and in default, a Pleader Commissioner was to be appointed for partition by metes and bounds as indicated above.

(3.) There was an appeal by the defendant No. 1 and it was held by the appeal Court that in both the entries of the two settlement records there was mention of a structure on, the suit land. According to defendant No. 1 structure was demolished in 1967 D. S. and a new structure was being raised by defendant No. 1. According to the plaintiff the old structure fell down long time ago and the suit plot ceased to be a dwelling house and accordingly the disputed property lost the character of a dwelling house. The appellate Court accepted the contention of the defendant No. 1 and the appeal was accordingly allowed and the defendant No. 1's application under Section 4 of the Partition Act was allowed after setting aside the judgment of the learned Munsif. The present second appeal has been preferred against the aforesaid decision of the lower appellate Court.