Dipak Kumar Sen, J.
1. The property which isthe subject-matter of the suit is premises No. 203/4. Bidhan Sarani, Calcutta (hereinafter referred to as the said premises). Bv an award made in an arbitration on the 12th April, 1949 the said premises was divided into four lots being A, B. C and D. Lot A was allotted to Ananda Chandra Paul the defendant No. 1. Lot B was allotted to Jahar-lal Paul the plaintiff : Lot C was allotted to Manick Lal Paul the defendant No. 3 and Lot D was allotted to Sushila Bala Paul. The allottees belonged to the same family. A decree was thereafter passed in terms of the said award. The said lots have since been accorded separate municipal numbers and Lot A has been numbered as 203/4B and Lots B. C and D have been similarly numbered 203/4C, 203/4D and 203/4A Bidhan Sarani.
2. 203/4A Bidhan Sarani allotted to Manicklal has since been sold in execution and has been purchased by a stranger.
3. In respect of the lots numbered 203/4A and 203/4C Bidhan Sarani litiga-tion has been had between the parties,Sushila Bala the allottee of 203/4A Bidhan Sarani executed a Deed of Settlement appointing Jaharlal as the trustee and Shib Nath Paul, the defendant No. 2 her son. was nominated the sole beneficiary. Sushila Bala died on the 7th Nov. 1977.
4. In or about September 1979, Shib Nath filed a suit in this Court being Suit No. 701 of 1979 claiming absolute ownership of the said Lot No. 203/4A and for a decree against Jaharlal for Rs. 33.236.12 P. In the said suit an application was made bv Shib Nath which was ultimately decided in the Appeal Court by an order dated the 5th Dec. 1980. By the said order Jaharlal was given leave to sell premises No. 203/4C on condition that he would furnish a Bank guarantee for a sum of Rupees 20,000/-.
5. On the 3rd December. 1980 Jaharlal filed the present suit claiming, inter alia, a declaration that he was the exclusive owner of premises Number 203/4C. Bidhan Sarani. Calcutta; an injunction restraining Ananda Chandra and Shib Nath from obstructing him in enforcing the said award by construction of partition walls and for a further declaration that he had a right of passage on the ground floor through premises no. 203/4A.
6. An interlocutory application was made in this suit in which an order was passed on the 23rd December, 1980 appointing a Receiver to demolish a wall to keen a common passage free.
7. The present application is by Shib Nath praying for an injunction restraining Jaharlal and his servants and agents from parting with possession of the vacant portion of premises Number 203/4C, Bidhan Sarani. to one Monika Ghosh or any other person who is a stranger to the family and for a receiver for taking symbolical possession of the said portion.
8. It is inter alia, alleged in the petition that though a decree has been passed on the said award of 1949 the same has not been implemented. Owelty money has not been paid. Separate electric meter have not been installed and no physical partition has been effected. It is further alleged that Jaharlal Pal has entered into an agreement of sale of the said premises No. 203/4C, Bidhan Sarani to one MonikaGhosh. It is alleged that the saidMonika Ghosh has filed a suit in the City Civil Court Calcutta in respect of the said premises No. 203/4C which is pending. It is alleged that the said Monika Ghosh also instituted Criminal Proceedings. It is alleged that Monika Ghosh intends to take possession of the premises No. 203/4C, Bidhan Sarani Calcutta. It is contended that she is not entitled to do so and after the sale is complete can only file a suit for partition and possession. It is further contended that the petitioner has a right to file a suit for pre-emption against any stranger purchaser of premises No. 203/4C, Bidhan Sarani and that a prospective purchaser has no legal right to take possession of the said premises to frustrate a prospective suit for pre-emption.
9. Jaharlal has filed an affidavit affirmed on the 15th January, 1981 in opposition to the application. It is, inter alia, alleged in this affidavit that the premises No. 203/4, Bidhan Sarani has been duly divided, but because of obstruction by the petitioner a stair-case could not be erected in premises No. 203/4C. In order to enter into the second floor of premises No. 203/4C it is necessary to go through the verandah ir the portion of the petitioner. It is for this reason that the present suit was instituted. It is contended that the plaintiff having obtained '.eave from the appeal court to sell the said premises No. 203/4C this application is not maintainable.
10. An affidavit of Ananda Chandra affirmed on the 15th January, 1981 has also been filed in opposition to the petition. It is, inter alia, stated in this affidavit that there were tenants occupying portions of the premises and it is difficult to separate the portions allotted.
11. An affidavit affirmed by Shib Nath on the 20th January. 1981 has been filed in reply. It is alleged therein inter alia that it is admitted in this suit that the property has not been partitioned and that Jaharlal has himself prayed for appointment of a Commissioner.
12. A supplementary affidavit has been filed by Shib Nath affirmed on the 27th January, 1981 setting out a portion of the report made by the Receiver annexing certain photographs.
13. Mr. Dipankar Ghose, learned counsel for Shib Nath the petitioner contended that the said premises, namely No. 203/4, Bidhan Sarani Calcutta was still the undivided dwelling house of the Pal family. It was undivided inasmuch as the partition thereof has not been fully implemented in terms of the award and the decree and the said property has not been divided by metes and bounds. The fact that a part of the premises has been sold to a stranger or the fact that a portion thereof is let out to tenants was of no relevance. He drew my attention to Section 44 of the Transfer of Property Act. the relevant portion of which is as follows :
'.....where the transferee of a shareof a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to ioint possession or other common or Dart enjoyment of the house.'
14. Learned Counsel submitted that Monika Ghosh, the proposed transferee of the share of the plaintiff in the said premises, namely, 203/4 Bidhan Sarani Calcutta, was not entitled to possession thereof along with other members of the Pal family. In support of his contention he cited the following decisions :
(a) Botokrishna Ghosh v. Akshoy Kumar Ghose, reported in : AIR1950Cal111 . This is a judgment of a Division Bench of this Court. The following passage in this judgment appears to be relevant (at pp. 113, 114):
'The essence of the matter, therefore, is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house, and it is this attribute of the house which imparts to the family its character o,f an undivided family. For, the members of the family may have partitioned all their other .ioint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling-house so long as they have not divided it amongst themselves.
'If in this state of things a member of the family transfers his share in the dwelling-house to a stranger, the position that arises is that the second Paragraph of Section 44 of the Transfer ofProperty Act comes into operation and the transferee does not become entitled to joint possession or other common or part enjoyment of the house, although he would have the right to enforce a partition of his share. The obiect of this provision is to prevent the intrusion of strangers into the family residence, which is allowed to be possessed and enioyed by the members of the family alone in spite of the transfer of a share to a stranger. Such a dwelling-house can in our opinion still be looked upon as a dwelling-house belonging to an undivided family, because the member of the family have not divided it amongst themselves and are in sole enjoyment and possession of it to the exclusion of the stranger transferee who has only a right to partition. And so long as the dwelling-house has not been completely alienated tc strangers, as was the case in Vamyn Vishnu Gokhale v. Vasudev Morbhat Kale ((1899) ILR 23 Bom 73), successive trans-ftrs 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 have the right to hold exclusive possession to the exclusion of the stranger alienees. So long us the situation lasts, the dwelling-house, in our opinion, continues to be a dwelling-house belonging to an undivided family.'
(b) Dulal Chandra Chatleriee v.Gosthabehari Mitra reported in : AIR1953Cal259 . This is also a judgment of a Division Bench of this Court. This is a case under the Partition Act. 1803. Construing Section 4 of the said Act, it was observed by the Division Bench as follows (at P. 260) :
'The creation of a tenancy does not terminate the possibility of the owners of the house returning to the occupation. What seems to be import am under Section 4 (1) is that the house concerned should either be actually in use, though not necessary in constant occupation, by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future time. Judged by that test, the mere grant of a tenancy cannot possibly have the effect of making a house, which is otherwise a residential house of the members of the undivided family owning it, cease tobe a dwelling-house. It may be that if a permanent and irrevocable leas, is granted to a third party a question may arise as to whether the character of the house as a dwelling-house in so far as the owners are concerned, still survives. No such question can possibly arise where what has been created is nothing more than a tenancy of the ordinary kind.' (c) Paresh Nath Biswas v. Kamal Krishna reported in : AIR1958Cal614 . This decision of a single Bench of this Court was cited for the following proposition (at p. 615 of AIR) :
''In my opinion, the second part of Section 44 does not really create any new right in favour of any co-owner of a family -- dwelling-house but by implication it recognises a right which already inheres in him. A co-sharer owner of a property is entitled to exercise his possession over every portion of the property. Normally such exorcise of possession is limited to the extent of his share. When, however, there are several co-sharers of a property and one of them refrains from exercising his possession by giving up his connection with the property or by leaving the country or for any other reason, the remaining co-sharers though not full owners of the property, can certainly, resist a trespasser or stranger from taking possession of the share of that co-sharer by bringing a suit for injunction against him. The stranger purchaser of a fractional share of an undivided family dwelling-house is reduced to the position of a stranger, so far as possession is concerned, on account of the disability imposed upon him by the second part of Section 44 of the Transfer of Property Act. The remaining co-shnrers can. therefore, in-junct him from entering into possession of the dwelling house, just as they can injunct a trespasser in the illustration given by me, the only difference in the case of a stranger purchaser of a share of a family dwelling house, being that he can sue for partition on the strength of his title. In this view of the matter, I am clearly of opinion that a suit for injunction of the present description is maintainable in law.' (d) Surendra Nath Achar v. Ram Chandra Hazra, reported in (1971) 75Cal WN 195. This decision of a single Bench of this Court was also cited for similar proposition as in the other elections.
(c) Ramaswami Pillai v. Subramania Piliai reported in : AIR1967Mad156 . This decision of a single Bench of Madras High Court was also cited for the proposition laid down as follows (Page 158) :
'A Hindu joint family divided in status will still be an undivided family qua dwelling house, if there has been no division of the dwelling house by metes and bounds for the purposes of the Act.' (f) Monomohan v. Smt, Usharani Ghosh reported in : AIR1979Cal79 . This decision was cited for the following passage in the judgment (at p. 82):
'I hold that undivided family does not mean joint family as commonly understood, but undivided family qua dwelling house and it mattered not that possession of any portion of the pre-mises was obtained by the stranger-transferee at any point of time and/or that his name was mutated in the re-cords of the Corporation. Nor does the same debar the defendants from claim-ing the benefits under Section 4 of the Partition Act.' (G) Satyendu Kundu v. Amar Nath reported in : AIR1964Cal52 . This decision of a Division Bench of this Court was cited for the following propositions of law laid down construing Section 4 of the Partition Act:
(i) The propositions contained in Section 4 (1) of the Partition Act have been introduced in order to maintain customary privacy and to prevent the intrusion of strangers into the dwelling house belonging to an undivided family.
(ii) A liberal interpretation is to be put upon the provisions contained in Section 4 of the Partition Act. as would promote and fulfil is object, which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible.
(iii) The expression, 'share of a dwelling house belonging to an undivided family' occurring in Section 4 of the Partition Act is to be construed in ihe same wav as the expression is construed in Section 44 of the Transfer of Property Act. Section 4 of the said Act carries forward the law laid downin Section 44 of the Transfer of Property Act.
(iv) As long as there is a 'dwelling house' which has not been divided 'qua' the family, it might be said to be a dwelling house belonging to an 'undivided family' for the purposes of Section 4 (1).
(v) The word 'family' as used in Section 4 was not intended to be used in a narrow and restricted sense, namely a body of persons who can trace their descent from a common ancestor. It certainly includes such persons, but it is sufficient if there is a collective body of persons living together within the same curtilage, subsisting in common, and directing their attention to a common object and to the promotion of their mutual interests and social happiness.
(vi) It is not necessary that all the members of such a family should con-tinuously reside together. It is sufficient if some of them so reside. and others reside there temporarily or have not abandoned the intention of residing there, altogether.
(vii) It does not matter if a part of such dwelling house is let out to tenants or even the whole, provided that it can be shown that the owners have not given up their intention of residing therein, whether they have such an intention or not is a question of fact, to he decided upon the circumstances prevailing in each case. For example, if the parties have given a permanent lease, it may be said to militate against their having an intention of resuming residence.
(viii) That some of the members of the family have transferred their interest to strangers will not by itself take the case out of the operation of Section 4. Until the dwelling house is completely alienated to a stranger, it is still an undivided dwelling house within the meaning of Section 4.
15. Learned a counsel Mr. p. Sen appearing on behalf of the respondent has contended to the contrary. He reiterated that in the instant case, the partition has been fully effected and the house is no longer undivided. In support of his contention, he relied on Jowitt's Dictionary of English Law, current edition, at page 1180 for the interpretation of the word 'mete' and the words 'metes and bounds' as follows :
Mete. The word also meant to measure, and occurs in this sense in compound forms, such as mete wand (a measuring-rod) etc.
Metes and bounds. Where a widow was entitled to dower, (2. v) of land, her share was ascertained and set apart to be held by her in severalty, and she was then said to hold it by metes and bounds, that is by measurement and boundaries.
16. He contended further that the portions of the house having been clearly demarcated in the plan annexed to the award the property has been completely partitioned by metes and bounds. He further contended that the petitioner's own suit in respect of another portion being premises no. 203/4A Bidhan Sarani was on the basis of partition. A part of the premises being No. 203/4D Bidhan Sarani had been irrevocably alienated in favour of a stranger.
17. On a consideration of the facts and circumstances of the instant case it appears to roe that the premises No. 203/4. Bidhan Sarani Calcutta had lost its character as an undivided dwelling house.
18. In the award passed in this case the portions allotted to the several members of the Pal family have been clearly demarcated into different lots. The precise boundaries of such demarcation appear in the plan annexed to the award. A decree has been passed in terms of the said award to which the predecessor in interest of the petitioner was a party. None of the parties to the decree has challenged the same up till now and the same has become final. It is possible to measure and demarcate the boundaries of the different lots as shown in the plan. Accordingly, and in view of the defini-nition and meaning of the words 'metes and bounds' cited on behalf of the plaintiff it appears to me that the partition is complete.
19. The contentions of the learned Counsel for the petitioner that partition walls have not been erected and each portion has not been made self-contained cannot in my view make any difference to the position. A partition wall is nothing more than a further demarcation of the boundary which has already been done in the instant case,If I hold otherwise, then if at any time a partition Or a common wall between separate properties originally one joint property breaks down or is demolished for any reason whatsoever, the properties though separated would have to be held to have regained their ioint character. I am unable to reach this conclusion.
20. It is also to be noted that this suit is not a partition suit and even if the contentions of the petitioner are correct it does not appear to me that he is entitled to the prayers in his application in this suit. This application is outside the scope of this suit.
21. I also take note of the fact that a portion of the property has been irrevocably alienated to strangers and other portions of the property are in the hands of the tenants.
22. Assuming the contentions of the petitioner are correct Manika Ghosh at present cannot be said to be a purchaser stranger who is intending to intrude a common dwelling house. She is also not a party to this application where an order is being prayed for against her.
For the reasons as above, there will be no order on this application. The applicant will pay the cost of this application to the appearing defendants. The ad-interim order passed in this application will continue for one week. Liberty to mention.