1. In this revision application the petitioners have challenged the legality of an order dated 5-3-1974 passed by the learned Subordinate Judge, Bhagalpur, fixing valuation of a house which was the subject-matter of partition in Title Suit No. 25 of 1966.

2. The petitioners had purchased 9-10th share of the said house, situated in Mohalla Golghat in the town of Bhagalpur, under a sale deed dated 10-11-1965. After purchase the petitioners filed aforesaid title suit on 22-2-1966 for partition of 9/10th share in the aforesaid house on the basis of the transfer made in their favour. The defendant-opposite party had the right, title and interest over the remaining 1/10th share in the said house. The opposite party filed written statement on 19-8-1966 disputing the claim for partition made on behalf of the petitioners. In paragraph 13 of the written statement, it was stated as follows:-

"That the disputed house was a dwelling house belonging to the undivided family of the defendant and his uncles, brothers and cousins on the date of sale. All the members of the family were actually living in the house or were using the house as their dwelling house whenever they came to Bhagalpur. This family was undivided qua dwelling house in question and in view of the plaintiffs claim for partition of their alleged share in the dwelling house (which is not admitted) belonging to the undivided family; this defendant undertakes to buy the share of the plaintiffs and request this court to make a valuation of the share of the plaintiffs in the house as mentioned by the plaintiffs or in such manner as it thinks fit and direct the sale of the plaintiffs share to the defendant and might give all necessary and proper directions in that behalf under Sec. 4 of the Partition Act, Act IV of 1893."

3. During pendency of the suit another application was filed on 3-5-1967 by opposite party again reiterating the undertaking to buy the share of the plaintiffs in accordance with the provisions of Sec. 4 of the Partition Act (Act IV of 1893) (hereinafter referred to as the Act). The learned Subordinate Judge, however, instead of adopting the procedure prescribed under Sec. 4 of the Act, decreed the suit for partition filed on behalf of the petitioners, by his judgment and decree dated 3-4-1969. Being aggrieved by the said judgment and decree the opposite party filed a First Appeal before this Court which was numbered as F. A. 211 of 1969. The said appeal was allowed by a Bench of this Court on 20-7-1973. Their Lordships set aside the preliminary decree passed in the said suit and directed the learned Subordinate Judge to value the property in dispute in accordance with Sec. 4 of the Act, giving option to the opposite party to purchase the share of the plaintiffs in the house, in question, on the basis of valuation fixed by the court concerned. It appears that in pursuance of the said direction the learned Subordinate Judge by the impugned order has fixed the value of the house, in question, at Rs. 25,000 and the share of the petitioners at Rs. 22,500 and has directed the opposite party to deposit the said amount of Rs. 22,500 for the transfer of the share of the plaintiffs.

4. The learned counsel appearing for the petitioners has submitted that the learned Subordinate Judge should have fixed the market value of the house, in question, taking into account the valuation of the said house in the year 1974 when the application under Sec. 4 of the Act was being disposed of by the learned Subordinate Judge in pursuance of the direction of this Court. According to the learned counsel the court below acted with material irregularity in exercise of the jurisdiction, in fixing the value of the house with reference to the date of the institution of the suit. During the course of argument, however, the learned counsel appearing for the petitioners conceded that the relevant date should be the date on which a co-sharer undertakes to buy the share of such transferees, w