1. One Girish Chandra Dutt was the owner of certain properties, which were made the subject ofa suit for partition. Out of an application, under Section 4 of the Partition Act, made in the aforesaid suit for partition, the present appeal arises.
2. Girish was succeeded by three sons, namely Tulsidas (the plaintiff respondent No. 1), Bonbehari (defendant No. 1, who is the respondent No. 2) and Satya Sadhan (father and husband respectively of defendants Nos. 2 and 3, who are respondents Nos. 3 and 4). Sankar Charan (defendant No. 4, who is respondent No. 5) is the son of the plaintiff. He was made a party to the partition suit in his capacity as the purchaser of a certain share in some of the properties included in the partition suit. Kali-pada (defendant No. 5, who is the appellant) is the transferee of the share of defendants Nos. 2 and 3 (respondents No. 3 and 4) in some out of the several properties, which were included in the suit for partition.
3. The property in dispute is C. S. Plot No. 1596, recorded in Khatian No. 183 of Mouza Khato-ra. In the settlement record the land is recorded as Udbasu land, measuring 19 cent. The said plot was described in item No. 2 of the Schedule to the plaint.
4. The aforesaid plot No. 1.596 appears to have been acquired in the name of Natabar, brother of Girish, in the year 1884. In the year 1892, them was a partition between Girish and Natabar and plot No. 1596 was exclusively allotted to Girish, under the said partition. On 12-5-1947, defendants Nos. 2 and 3 (respondents Nos. 3 and 4) granted a mourashi mokrari settlement of their share in some of the joint properties including C. S. plot No. 1596, in favour of Kalipada (defendant No. 5 appellant). The Patta granting the aforesaid settlement is Ex. C.
5. In the partition suit, hereinbefore mentioned, there was a preliminary decree for partition passed on 12-12-1953. Plaintiff's claim to item No. 6 of Schedule to the plaint was dismissed because of non-joinder of necessary parties. His share was found to be 6as-6g-2k-2 kranties in item No. 5 of the Schedule to the plaint. In the remain-ling items of divisible property, plaintiff's share was found to he one-third. It was directed by the said preliminary decree :
'The leasehold of the defendant No. 5 will go to the allotments of defendants Nos. 2 to 3 from whom be took the lease provided they pay for partition. The question regarding Section 4 of the Partition Act cannot now be determined since the value of the property will have to be ascertained when that question will be dealt with at the time of the final decree.'
There was Commissioner for partition appointed to effect partition by metes and bounds. In the report submitted by the Commissioner, we find the following observation :
'I am not inclined! to disturb the possession of defendant No. 5, the lessee of defendants Nos. 2 and 3, by allotting the portion of the land to the plaintiff by demolishing and removing the structures of defendant No. 5, and which I think would be unjust, unfair and inequitable under the facts and circumstances of the present case. So after considering the convenience and inconvenience of the parties and leaving aside the portion of the land possessed exclusively by defendant No. 5, the lessee of defendants 2 and 3, I have allotted the major portion of the front land to the share of the plaintiff.' After the Commissioner submitted his report, the plaintiff filed an application under Section 4 of the Partition Act 1893, on 25-2-1955 and therein stated that item No. 2 of the Schedule to the plaint (Plot No. 1596) was the ancestral Udbastu land of the plaintiff and defendants Nos. 1 to 4 and was beingused as part of the dwelling house (Bastu) and that the defendant No. 5. being a stranger, was not entitled to possess the same on the basis of any settlement thereof taken by him. Plaintiff expressed his willingness to purchase the share of defendants Nos. 2 and 3, in said plot No. 1596, (from whom the defendant No. 5 had obtained the settlement) on payment of price, as fixed by the Commissioner in his report.
6. The trial court allowed the prayer. On appeal before the lower appellate court, at the instance of the defendant No. 5, the order made by the trial court was affirmed.
7. It is not disputed that a predecessor of the defendant No. 5 obtained settlement of the land to the contiguous west of plot No. 1596 from an ancestor of the plaintiff, as far back as the year '1883 and thereon built a residential house, which is now occupied by the defendant No. 5. The defendant No. 5 also himself acquired certain plots of land to the contiguous north of plot No. 1596.
8. It is not also disputed that between plot No. 1473, on which the plaintiff's residential house stands, and the disputed plot No. 1596 runs the Union Board Road.
9. It appears from the evidence that on the plot of land to the east of plot No. 1596 there are several structures namely, a granery, a privy, a cowshed and a temple, in which the plaintiff is interested. It also transpires in evidence that somewhere to the north of plot No. 1596 there is a tank (Khirki pukur), which is used by the female members of the plaintiff's household.
10. It further transpires that at the time when plot No. 1596 was acquired by the ancestors of the plaintiff, there was a structure standing on the land. The said structure, at a time, used to be occupied by the servants of Natabar, the brother of Girish, and Natabar did have a Kitchen garden on plot No. 1596. In the deed of partition between Girish and Natabar (Ext. 1), it was recited that Natabar would vacate the Kitchen garden portion as soon as the said portion of the land would be required by Girish or his heirs, for the purposes of their residence.
11. There is no dispute on the point that the structure standing on plot No. 1596 fell down or was pulled down about 20 to 21 years prior to the filing of the suit for partition.
12. The plaintiff contended that it was necessary for him and the members of his family to pass over the disputed plot No. 1596, in order to reach the granery, the privy, the cow-shed, the temple and the tank. The plaintiff further contended that he never gave up the idea of utilising plot No. 1596, which was at one time part of his dwelling house, but fell into disuse, again as a dwelling house and for that purpose did collect some building materials, not very long ago.
13. The court of appeal below was of the opinion that the intervention of the Union Board Road between plots Nos. 1473 and 1596, was a matter of little consequence in deciding whether plot No. 1596 was a part of the dwelling house. The court of appeal below was also of the opinion that the non-existence of the structure on plot No. 1596, at the material time, would not matter in the least, if the plaintiff had not deliberately abandoned the aforesaid plot and did have the intention of using the said plot as part of the dwelling house.
14. On the evidence, hereinbefore referred to, the court of appeal below was satisfied that plot No. 1596 was part of the plaintiff's dwelling house and that the plaintiff always had the intention of retaining it as such. In that view of the matter theCourt of appeal below affirmed the order of the trial court, by which plaintiff's application under Section 4 of the Partition Act had been allowed.
15. The propriety of the appellate decision is being disputed in this appeal.
16. Dr. Atul Chandra Gupta, learned Advocate for the appellant, contended that the user of plot No. 1596, as part of the dwelling house 20 or 21 years ago, prior to the filing of the partition suit, was a matter of historical interest only. The disuse of the plot as part of the dwelling house for so long a time, was enough indication of abandonment on the site as such part. The necessity of passing over plot No. 1596 so as to reach other areas, in which the plaintiff was interested, it was contended, was no ground for allowing the plaintiff's application under Section 4 of the Partition Act.
17. The terms 'house' or 'dwelling house' are ambiguous terms and for the purposes of Section 4 of the Partition Act must be liberally construed. The terms should be taken to mean not only the structure or building, but also adjacent buildings, garden, courtyard, orchard, and all that is necessary for the convenient occupation of the house. In support of the proposition, we need refer to the following, from amongst numerous decisions on the point -- Kshirode Chunder v. Sharada Prosad, 12 Cal LJ 525, Pran Krishna v. Keshab Chandra, 22 Cal WN 515 : (AIR 1919 Cal 1055), Nilkamal v. Kamakshya Charan : AIR1928Cal539 .
18. Then, again it is not necessary for the members of the family or for one or more of therm physically to occupy a house so as to make it a dwelling house. It is enough if the house or its appurtenances are used for the use or accommodation of servants, officers, or guests of the family. The case reported in Gour Chand v. Khirode Nath : AIR1948Cal73 is an authority on the point.
19. It is doubtful whether a person, who is not in occupation of a house belonging to an undivided family and who has no intention of occupying it in future, is entitled to the benefit of Section 4 of the Partition Act, merely because that he is an owner. Macklin J. expressed the opinion, in a case reported in Bai Fatma v. Gulamnabi Hajibhai, AIR 1936 Bom 197 that such a person was not so entitled.
20. Nevertheless, a dwelling house does not cease to be a dwelling house merely because of suspension of occupation or, for the matter of that, absence of the owner therefrom or because of occupation or terminable occupation thereof by tenants. What is important under Section 4 of the Partition Act is that the house concerned should either be actually in use, though not 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 date. This is the view which was expressed bv Chakravartti A.C.J. and Das J. in a case reported in Dulal Chandra v. Gostha Behari, : AIR1953Cal259 .
21. In a case reported in Bhagirath v. Afaq Rasul, : AIR1952All207 Kidwai J. observed that a house might fall into a complete state of disrepair and might remain unrepaired for a considerable time, owing to poverty or internal disputes, but it would nevertheless continue to be a family residential house, if the members of the family intended to use it as such as soon as they could conveniently do so.
22. In the instant case, the court of appeal below was satisfied, on the evidence, that the plaintiff never abandoned the idea of utilising plot No. 1596 as part of the dwelling house. This finding wouldhave been sufficient for us to dismiss this appeal, were it not for the fact that there was an important aspect, which completely missed the attention of the Court of appeal below.
23. It is in evidence that defendants Nos. 21 and 3 (respondents Nos. 3 and 4) settled their share in plot No. 1596 in Mourashi Mukrari right to the defendant No. 5 appellant, as far back as 12-5-1947. It is also in evidence that plot No. 1596 was not used for any purposes of dwelling by the members of the joint family for long long years. For full 3 years after the settlement made to defendant No. 5, no protest appears to have been raised by the plaintiff or anybody else against the permanent settlement of the aforesaid plot in favour of defendant No. 5. In the case reported in : AIR1953Cal259 Chakravarti A.C.J. (Das J. concurring) observed as follows :
'It may be that if a permanent and irrevokable lease is granted to a third party a question may arise whether the character of the house as a dwelling house, in so far as the owners are concerned, still survives.'
24. In our opinion such a permanent settlement would be a material fact to be taken into consideration in coming to the conclusion as to whether it was still then the intention of the owners to utilise the plot, so settled, for the future purposes of their dwelling house. It would depend upon the terms of the settlement as to whether it would! be at all possible to get back the land in the event of a partition. Further complications would arise if such a permanent settlement was granted by only one of the co-sharers but was acquiesced in by the others. In such an event it would have to be seen whether the acquiescence was of such a nature as to operate as an estoppel against the other co-sharers, who were no parties to the permanent settlement. This is the view of the matter which has not been considered by any of the Courts below. In our opinion the case has not been properly tried and must be remanded to the trial court for a rehearing in the light of the observations contained in this judgment.
25. The evidence already on the record shall be treated as evidence at the rehearing but parties shall have liberty to adduce further evidence if they like.
26. This appeal is accordingly allowed and the case is remanded to the trial court for rehearing. Costs of this appeal shall abide the final result.
27. I agree.