SATYABHAMA DE Vs. JATINDRA MOHAN DEB

JUDGEMENT

(1.) This appeal is by defendant 9 in a partition suit. The facts are that the plaintiffs brought a suit for partition of a dwelling house and some agricultural lands. In the plaint they prayed that if their share was not allowed in the dwelling house they might be allowed a proportionate parcel of the agricultural lands in lieu of their share. The appellant did not appear at the earlier stages of the suit but her husband defendant 10 appeared and filed a written statement in which he said that the plaintiffs share in the dwelling house might be valued and defendant 10 be allowed to purchase it, he being a member of an undivided family. In view of the pleadings the preliminary decree, which was passed on 5 December 1921, directed that the plaintiffs could not get any share in the dwelling house but they should get a share in the lands of the value of the share they had purchased in the property. On the same day namely 5th December 1921, defendants 14 to 19, who are respondents in this appeal, filed an application in which they prayed that their possession might be maintained and that they might be given a separate saham including the portion in their possession. These defendants claimed to be in possession of a portion of the dwelling house and asked that that portion might be allotted to them on partition. After the preliminary decree a final decree was also passed in terms thereof. At the instance of defendant 10 the final decree was subsequently set aside. Before another final decree could be passed the appellant appeared in Court on 14 December 1925 and filed an application under Section 4, Partition Act (Act 4 of 1893) praying to be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 all of them being strangers to the family. The trial Court allowed the application and directed that the appellant should be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 in the homestead described in Schedule ca of the plaint. Against that order an appeal was taken to the District Judge of Dacca and the Additional District Judge by his judgment dated 17 May 1926 dismissed the appeal so far as it related to the plaintiffs share but allowed the appeal in respect of the shares of defendants 14 to 19 holding that the lower Court was in error in permitting defendant 9 to purchase the shares of these defendants. From the decree of the District Judge two appeals were preferred to this Court, one by the plaintiffs against the order of sale of their share of the dwelling house and the other the present appeal by defendant 9 against the order dismissing her prayer to purchase the shares of defendants 14 to 19. We have already allowed the plaintiffs appeal and held that in the circumstances of this case defendant 9 is not entitled to claim relief under Section 4, Partition Act.

(2.) Now in this appeal the appellant's contention is that the defendants 14 to 19 are strangers who had purchased shares in the dwelling house from some of the defendants cosharers and that the appellant should be permitted under the provisions of Section 4, Partition Act to purchase their share in the dwelling house. The learned Judge has disallowed the appellant's prayer on the ground that the Partition, Act does not authorise the original shareholder to purchase the share of a stranger to the dwelling house other than the stranger who sues for partition. The effect of this order is that because the respondents are not plaintiffs in the case their shares cannot be purchased by the defendants under the law. We have considered this matter carefully and we have come to the conclusion that the order of the lower appellate Court cannot be supported.

(3.) Before entering into the substantial question raised in the suit we should dispose of a preliminary objection which has been taken on behalf of the respondents. It has been argued that under Section 8, Partition Act, an appeal lies from an order for sale made by the Court under Section 4. This appeal is against an order made by the District Judge refusing to pass an order for sale and therefore, it is not open to appeal, We do not think that this contention ought to prevail. The first Court passed an order for sale and that order was appealable under Section 8, Partition Act. The original order being open to appeal any order passed by the appellate Court should be held open to second appeal unless there is anything in law to prevent it. The order passed in this matter is a decree and has been appealed from as such. Under the Civil P. C. a second appeal is allowed against a decree if the other conditions mentioned therein are fulfilled. We hold that the second appeal is competent.