1. This appeal arises from a suit for partition by a stranger to whom a part of the property of an undivided family had been transferred. The plaintiff-respondent obtained a decree for partition of his share. The appellants wished to buy out his share, and they made a report under Section 4, Partition Act of 1893. Both the Courts have held that the property concerned is not a 'dwelling house' within the meaning of that section. The lower appellate Court has remarked:
The fact that the land is khandal from six or seven years, coupled with the fact that Mt. Nabban lives in mohalla Sari Gobbardan, points out that its owners have given up the idea of using it as a dwelling house.
2. The learned Counsel for the appellants wished to assail the finding that Mt. Nabban lives in mohalla Sari Gobhardhan on the ground that there is no evidence to support It. But there is no certificate to support this plea, and I have therefore not allowed it to be taken in this Court. The next argument is that the property consists of some vacant land, a hut, and that the hut is still capable of being used as a dwelling house, though it may be that the undivided family has not actually been using it as such for a number of years. I have been referred to two decisions of the Calcutta High Court in support of the appellants plea, the first of which is the case of Nil Komal Bhattacharjya v. Kamakshya Charan 1928 Cal 539. This, only goes so far as to show that it is the owner ship of a dwelling house, and not its actual occupation which brings the operation of the section into play. If the house in question however is not a dwelling house, there is no relevancy in the ruling, and the finding of the Court in the present suit is that this hut is not a dwelling house. In Pran Krishna v. Keshab Chandra 1919 45 Cal. 873, it has merely been held that the land and its appurtenances which are ordinarily and reasonably necessary for the enjoyment of a dwelling house may be included in the expression as well as the house itself. This again clearly has no relevancy in the present case where the house itself is not a dwelling house. It appears to me that the question at issue has really been decided by the findings of fact, and that there is no force whatever in the appeal. It is therefore dismissed with costs.
3. Mr. Mansur Alam has asked for leave to appeal under the Letters Patent on the ground that Section 4, Partition Act, ought to be capable of application where a house, although it has been found not to be used as a dwelling house, is still capable of being used as such, and as this question may be of some importance, leave to appeal is given.