R. Bhattacharya, J.
1. This revisional application has been filed by the defendant of the original suit against an order passed by the learned Munsif on 25-3-1974 rejecting the petitioner's application under Section 4 of the Partition Act. The opposite party is opposing the application.
2. The opposite party Jitendra Nath Karamkar filed a suit for partition against the petitioner Mohiuddin Molla and others. There has been a preliminary decree for partition. Thereafter when poceedings were going on for final decree, the petitioner Mohiuddin filed a petition under Section 4 of the Partition Act. The plaintiff opposed and the learned Munsif found that the entire suit property was not the dwelling house of the defendant's family. It has also been held by the learned Munsif that as previously a petition was filed on similar ground and since it was rejected, the subsequent application under Section 4 of the Partition Act was not maintainable. On these grounds the defendant's petition was rejected. Against that order the petitioner has come up before this Court challenging the propriety and validity of the said order.
3. I have heard Mr. Roy Chowdhury appearing on behalf of the petitioner and Mr. Motilal for the Plaintiff-opposite party.
4. Mr. Roy Chowdhury's contention is that the learned Munsif acted beyond jurisdiction and also with material irregularity for not considering the relevant materials essential for the determination of the application and in doing injustice to the party. It has also been contended that the learned Munsif also acted illegally and with material irregularity in holding that the subsequent application under Section 4 of the Partition Act filed by the petitioner was not maintainable.
5. On the question as to whether the suit property was not the dwelling house of the defendant's family, I find that the learned Munsif did not at all pay his attention to the respective cases of the parties. From the allegations made in paragraphs 1 and 8 of the plaint and also with reference to the other allegations made in the body of the plaint, it is quite clear and there is no ambiguity, that the suit property was the dwelling house of the predecessor-in-interest of the petitioner, the defendant No. 1 and the other defendants except the defendants Nos. 4 and 5. There is no doubt also that the defendant No. 3, the brother of the petitioner, was living in the suit property. In this case the parties did not adduce separate evidence regarding the character of the suit property. From the plaintiff's own admission it is quite clear that the learned Munsif did not look to the case of the plaintiff himself and that he wrongly construed the plaintiff's case.
6. In this connection Mr. Motilal has made an attempt to argue that when there is a shop room in the suit premises, the suit property cannot be held as the dwelling house. On this question there can be no doubt that only a minor part of the dwelling house is a shop room. The meaning of the dwelling house in Section 4 of the Partition Act is relevant. The relevant portion of Section 4 of the Partition Act runs as follows:--
'Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf.'
In this connection we should consider the decision of a Division Bench of this Court in the case of Dulal Chandra Chatterjee v. Gostha Behari Mitra, : AIR1953Cal259 . There we find the following:
'But assuming that the house concerned must be a residential house of the members of the family owning it. I am altogether unable to agree that any suspension of occupation or, for the matter of fact, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, can have the effect of making the house cease to be a dwelling house.'
Further down we also get.....
'the mere grant of a tenancy cannot possibly have the effect of making the house which is otherwise a residential house of the members of the undivided family owning it, cease to be a dwelling house.'
It is clear, therefore, that to ascertain whether a house is a dwelling house or not, it has got to be considered how the house is being used or for what purpose the house is there. In the instant case a minor portion of the suit property constitutes a shop. But the admitted fact is that the defendant is the owner of the dwelling house inherited from his father and that his other co-sharers sold their shares to different persons.' In my view, therefore, simply because there is a shop in the suit dwelling house it cannot be stated that the character of the dwelling house has been changed. I cannot, therefore, accept the contention of Mr. Motilal that due to the existence of a shop room the character of the suit property as dwelling house has been changed.
7. With regard to the finding of the learned Munsif that the defendant's application under Section 4 of the Partition Act was not maintainable as there was a similar application filed earlier though rejected, the order sheet shows that during the partition suit when the preliminary decree was yet to be passed, the petitioner filed an application under Section 4 of the Partition Act, but that was rejected as the defendant was not present when the matter was to be heard. There was, therefore, no decision of that application on merit. The application was rejected only for default of the petitioner. There can be no question of any application of the principles of res judicata. The view of the learned Munsif is clearly illegal and cannot be accepted.
8. Mr. Motilal has particularly urged that as there was a suit filed by the petitioner for pre-emption and as the said suit was dismissed, the present application under Section 4 of the Partition Act cannot be maintainable. I am afraid, this contention is unacceptable. There is no doubt that the petitioner filed a suit for pre-emption on the basis of a different Act and that was registered as Title Suit No. 860 of 1958. Thai suit was dismissed for default. No decision on merit again was there. Anyway, that suit was on the basis of a different Act and the present application is one under Section 4 of the Partition Act. Again there can be no question of res judicata or the like Principles.
9. It has next been argued by Mr. Motilal that Order 9, Rule 9 (1) read with Section 141, C. P. Code will be applicable in the present case and that the said provisions will debar the petitioner from filing the present application. I must say that the contention is based upon misconception of law. First of all an application under Section 4 of the Partition Act cannot be stated to be a proceeding as contemplated under Section 141 of the Code of Civil Procedure. Secondly, even if it is assumed that it is a proceeding because the application was registered as a Miscellaneous Case, still as there was no default or dismissal of the application in the Miscellaneous Case, there can be no occasion for application of Order 9, Rule 9 (1) and Section 141, C. P. Code. I, therefore, cannot accept the argument advanced by Mr. Motilal.
10. Lastly, Mr. Motilal has made an attempt to argue that the application under Section 4 of the Partition Act is not maintainable because the defendant-petitioner who filed that application was the only co-sharer having any subsisting interest in the suit property and, therefore, if there is only one co-sharer having any interest in the property, he cannot claim any relief under Section 4 of the Partition Act. Mr. Motilal's argument is that if there be more than one co-sharers having subsisting interest in the suit property, then one of them is entitled, to claim the relief. In this connection he wants to rely upon a decision of the single Judge of this Court in Durgapada Pal v. Debidas Mukherjee reported in : AIR1974Cal14 . Mr. Motilal relics upon the following portien of the judgment:
'It would appear from the facts of this case that the suit property at the time of the institution of the suit did not belong to any undivided family but it belonged to a person, the defendant No. 1, In my opinion, the provision of Section 4 applies to a dwelling house owned by an undivided family with members who are its owners in some share. In the facts of this case, the suit property is owned solely by the defendant No. 1 and not by an undivided family.'
The learned Judge in this case has referred to the case of Botokrishna Ghose v. Akshoy Kumar Ghosh reported in : AIR1950Cal111 . That is a Division Bench decision of this Court. I quote the relevant portion as follows:--
'And so long as the dwelling house has not been completely alienated to strangers, as was the case in Vaman Vishnu Gokhale v. Vasudev Morbhat Kale, successive transfers by other co-sharer members' of the family do not alter the factual position in this respect, because the remaining member or members of the family having the right to hold exclusive possession to the exclusion of the stranger alienees. So long as the situation lasts, the dwelling house, in our opinion, continues to be a dwelling house 'belonging to an undivided family.'
From the reading of this decision particularly the paragraph just quoted it is quite clear that if after several transfers by other co-sharers there remains only one member of the family having interest in the suit property that one member will have the right under Section 4 f the Partition Act. It has been clearly stated as noted above that the remaining member or members of the family will have that right. If there is a single co-sharer owner of the joint family, he will have the right to exert his claim and even, if there be more than one co-sharer they will also have the same right. Following, this Division Bench decision there can be no doubt, that even if at the time of institution of the suit there is one member of the undivided family having any interest in the suit property which is the dwelling house of the undivided family, he shall have the right under Section 4 of the Partition Act. I cannot, therefore, accept Mr. Motilal's contention as urged before me.
11. Moreover, in the present case I find from the amendment of the plaint that the defendant No. 2 who was also a co-sharer having interest in the suit property at the time of institution of the suit, sold off her share to the plaintiff and her name in the category of the defendant was struck off. At the time of institution of the suit, it is evident, there were more than one co-sharer who were the members of the family of the original owner. The last point urged by Mr. Motilal is also unacceptable. No other point was raised on behalf of the parties.
12. In view of my discussions above, I hold that the order of the learned Munsif below is liable to be set aside. I further find that the learned Munsif ought to have allowed' the petitioner's application under Section 4 of the Partition Act. The petitioner's contentions are accepted.
13. In the result, the revisional application succeeds and the Rule is hereby made absolute with costs. The petitioner's application under Section 4 of the Partition Act stands allowed. The learned Munsif will now pass necessary orders giving an opportunity to the petitioner to buy the share he has claimed and proceed according to law by giving necessary and proper directions in that behalf.
14. Send down the records of the lower Court as quickly as possible.