The expression "dwelling house belonging to an undivided family" in Section 4(1) of the Partition Act, 1893 refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family.

Rai, J.

1. This appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge of Muzaffarpur affirming those of the Additional Subordinate Judge, 2nd court of the same place.

2. The plaintiff filed the present suit for a declaration of his one-sixth interest in the holding in suit and for confirmation of possession or in the alternative for recovery of possession of his share. He also prayed for partition of his one-sixth share of the property in dispute in case it be not possible for the court to direct the defendant to sell to the plaintiff the remaining five sixth share of the holding together with the house standing on it for a consideration of Rs. 2916/10/-.

3. The case of the plaintiff was that the property in suit along with other properties were inherited by him & his two brothers Girish Chandra Chakraverty and Subodh Chandra Chakraverty, from their mother Khetramoni Debya. In the property in suit, the share of Subodh Chandra Chakraverty was half and the remaining half belonged to Khetramoni Debya, after whose death, each of her three sons, namely, Subodh Chandra. Chakraverty, Girish Chandra Chakraverty and the plaintiff inherited one-third of one-half, that is one-sixth share in the property in dispute. Girish Chandra Chakraverty sold his one-sixth share in the property to Srimati Radha Rani, wife of Subodh Chandra Chakraverty. Thus Subodh Chandra Chakraverty and his wife became the owners of five-sixth share in the property and the remaining one-sixth share belonged to the plaintiff. On 24-9-1943, Subodh Chandra Chakraverty and his wife Srimati Radha Rani sold the entire property in suit be defendant 1. As the defendant refused to partition the properties amicably, it became necessary for the plaintiff to institute the present suit.

4. The suit was contested by the defendant. Her plea was that the suit was not maintainable for the non-joinder of Subodh Chandra Chakraverty and his wife Srimati Radharani. According to her, unless the entire holding of 7 kathas be Included in the suit, it is not maintainable. Her case further was that the property in suit belonged to her vendors exclusively by some amicable arrangement, who had been, on previous occasions, dealing with this property as if they were its exclusive owners. Subodh Chandra Chakraverty alone had after the death of his mother, mortgaged the property in suit to Khirodeshwar Bose who ultimately realised his dues by instituting a mortgage suit. Subodh Chandra Chakraverty had further mortgaged the property in suit to Srimati Charusheela Devi for Rs. 1000 by a registered mortgage bond dated 15-7-1941. He had executed another mortgage by way of a conditional sale in favour of Sachindra Chandra Mukherjt and another for Rs. 1750 and had put the mortgagees in possession of the property in suit. The defendant pleaded that she had purchased the property in suit in good faith for a valuable consideration from its ostensible owners, and had thus acquired a valid title to it. According to her, even if it be held that the plaintiff had one-sixth share in the property in dispute he should not be allowed to get more than one-sixth of Rs. 3500 which was the consideration for the sale deed in her favour. On these and other allegations she pleaded that the suit was fit to be dismissed.

5. The trial Court came to the conclusion that the defendant had failed to prove any private arrangement between the plaintiff and Subodh Chandra Chakraverty by which the property in suit had fallen to the share of the latter. It further held that the suit was not bad for non- joinder of Subodh Chandra Chakraverty and his wife and that it was not necessary for the plaintiff to include, in the present suit, the entire holding of 7 kathas as alleged by the defendant. The trial court, however, held that, in the circumstances of the present case, the plaintiff was entitled to get, out of the consideration money of Rs. 3500, an amount proportionate to his o