N.N.Mithal, J. - (1.) In this second appeal by the defendants, only a very short point is involved; as to whether the suit property is family dwelling house or not? The plaintiff purchased in Court auction 2/3rd share in the property in dispute and filed a suit for partition of his share. The suit was contested by the defendants on the ground that it was a family dwelling house and, therefore under Section 4 of the Partition Act, the same cannot be partitioned. One of the defendants offered to purchase the share of the plaintiff at the value assessed by the Court. The plaintiff contended that it was not a dwelling house and got a commission issued for local inspection whose report is on the record. The trial Court as well as the lower appellate Court have held that the house was not used for residence and, therefore, it was not a family dwelling house within the meaning of Section 4 of the Partition Act. Agrieved, the defendants have come up in second appeal.
(2.) From the evidence, it appears that in execution of the money decree in O. S. No. 173 of 1962, Ram Narain versus Ganga Prasad and others, 2/3rd share of the defendant in the property was put up for auction and was purchased by the plaintiff decree-holder, in respect of which the sale certificate was issued to him on 14-3-1966. In the details of the property given in the sale certificate, it was mentioned that 2/3rd portion of Kuchcha-pukka house having boundaries detailed therein had been sold. A Dakhalnama was also issued in pursuance of this sale certificate which is paper Number 25-C on the record, in the Dakhal-nama the details of the constructions then existing on the spot have been mentioned along with the boundaries of the property. The commission was issued at the instance of the plaintiff whose repor is 14-C along with map 15-C prepared by him. Besides this, the plaintiff examined himself and was supported by one witness. Similarly the defendant has examined himself as D.W. 1 and D.W. 2 was examined in his support. This is the entire evidence on the record. The question that comes up for consideration is whether on the evidence on record, it can be said that the property in dispute was a family dwelling house and if so whether it was covered by the provisions of Section 4 of the partition Act.
(3.) The defendants claim to be entitled to the benefit of Section 4 of the Partition Act (hereinafter referred to as the Act). The section reads as under: "Partition suit by transferee of share in dwelling house : (1) 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 share holder 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 share holder and may give all necessary and proper directions in that behalf. (2) If in any case described in Sub-section (1) two or more members of the family being such share holders severally, undertake to buy such share, the court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.";