The mere fact that the owners of a dwelling house have constructed another house and are living there does not amount to abandonment of intention to use the disputed house as a dwelling house.

H.Mahapatra, J.

1. The defendants I and 2 in a suit for partition are the appellants. One Pratap Chandra Ash had four sons; Ealipada Ash, Amulya Chandra Ash, Gopal Chandra Ash and Abinash Chandra Ash. Gopal and Abinashs son Jitendra transferred their half share in a property measuring 0.03 acre in Mouza Chirkunda bearing survey plots Nos. 1110 and 1111 under Khata No. 243 to the plaintiff on the 9th of November 1960 by a registered Instrument. On the basis of a title thus transferred to her, the transferee brought the suit for partition of her half share. The defence by the other two sons of Pratap Chandra Ash, namely, Kalipada and Amulva, who are the appellants here, was that under Sec. 4 of the Partition Act (Act IV of 1893), they were willing to purchase the half share belonging to the two other sons of Pratap Chandra Ash and that the plaintiff should not be given a decree for partition in respect of that on the basis of her purchase. Secondly, they also pleaded that the road frontage of this holding being only 12 feet, it was not convenient to be partitioned as prayed for by the plaintiff. Both the Courts found against the defendants and decreed the plaintiffs suit for partition of half share. Hence this second appeal by the defendants 1 and 2.

2. The finding of the Courts below that the disputed property was not a dwelling house and did not attract the application of the provisions. Sec. 4 of the Partition Act, was seriously challenged by learned counsel for the appellants. He urged that even according to the plaintiffs own evidence, which is borne out by the evidence adduced on behalf of the contesting defendants, the disputed house was the ancestral dwelling house of Pratap Chandra Ash, in which all his children, including the plain-tiffs vendors and the defendants, were born. The Courts below thought that as the sons of Pratap Chandra Ash bad built a new house about 30 or 33 years ago and have been living with their families in that new house for about 20 years and as they were not occupying the disputed house, they had abandoned their intention to use the disputed house as a dwelling house. The inference of abandonment of intention has been drawn by the Courts below from the two facts as stated above. Learned counsel contended that there is no evidence in support of such an inference, those two facts being insufficient and inappropriate to give rise to such an inference. I find strong force in this contention. The very admitted fact that the disputed house was the ancestral dwelling house of the family and that all the children of Pratap Chandra Ash were born in that house, establishes beyond doubt that it is a dwelling house within the meaning of Sec. 4 of the Partition Act. unless it is proved that the owners had abandoned their intention to use this house as a dwelling house once for all. The mere fact that they have constructed another more suitable house where they have been living is not enough to establish or even to give rise to an inference of abandonment of such an intention. The disputed house has not been let out and has not been allowed to be used in any way, but has been kept under lock and household materials, such as bed and other things, have been kept there. The story that the defendants put up during trial that some of their employees were living in that house has been discarded by the Courts below, because such story was not mentioned in their written statement filed in the suit. But all the same, keeping household materials inside that house and not allowing that house to be used for any other purpose even during the last 20 or 25 years that the family has been living in the new house, is strong circumstance against abandonment of their intention to keep this house as a dwelling house. Their new house is not very far away from this house according to evidence.

3. Learned counsel appearing for the plaintiff-respondent, however, urged that the finding arrived at by the Courts below is a find