YOGENDRA SINGH Vs. MOHD ISLAM

JUDGEMENT

(1.) This application is directed against the order passed by the Learned Subordinate Judge by which he has allowed the petition under Section 4 of the Partition Act, 1893 (hereinafter referred to as the 'Act').

(2.) Two questions have been raised by the learned counsel appearing on behalf of the petitioner in support of this revision petition. Firstly learned counsel contended that Section 4 of the Act applies to joint family dwelling house alone and to no other house meaning thereby that for invoking Section 4 of the Act it has to be shown that the members of the joint family were/are residing in the dwelling house. In the case in hand according to the defendant No, I who filed the application under Section 4 of the Act property in question was a dwelling house meaning thereby that members of joint family were residing therein whereas according to the plaintiffs-petitioners the suit property was not dwelling house for of members of the joint family rather the same was let out to the various tenants. It is well settled that Section 4 of the Act shall have no application to such dwelling houses which have been occupied by tenants and the said provision applies only to such dwelling house in which all members of the joint family or some of them are residing. Since the parties were not in agreement the court below was required to decide this question after affording reasonable opportunity to the parties to lead evidence. In my view the court below has committed a serious error of jurisdiction in disposing of the petition under Section 4 of the Act without deciding this controvesry which was necessary to be decided before assuming jurisdiction to pass an order under Section 4 of Act. Therefore the matter requires a remand to the court below for reconsidering the whole matter. Learned Counsel appearing on behalf of the petitioners next contended that after allowing the application under Section 4 of the Act the court below has directed the plaintiff, to sell the share purchased by them for Rs. 15.000/- on the ground that the plaintiff had valued the suit at Rs. 15,000/-. So far petition suit is concerned I do not think that the plaintiffs were requite to give market value of the suit property for the purposes of jurisdiction. According to the express language of Section 4 of the Act the court is required to decide valuation of the property in question after affording reasonable opportunity to the parties to lead evidence on the question of valuation. Therefore the impugned order is not sustainable on this ground as well since no market value of the suit property has been fixed by the court below.

(3.) In the result the revision application is allowed, the impugned order is set aside and the court below is directed to dispose of the petition under Section 4 of the Act after giving reasonable opportunity to the parties to lead evidence in support of their respective cases on both questions, i. e. on the question whether Section 4 of the Act shall have application to the case in hand or not and also on the question as to what was the market value of the suit property on the date of filing of the petition under Section 4 of the Act. In the circumstances of the case I direct that the parties shall bear their own costs. Revision allowed.