SALIL KUMAR DATTA, J.

( 1 ) THIS is an appeal by the plaintiff in a suit tor partition. The suit land is comprised in plot No. 3004 Khatian No. 356 of mouza Kashigram. There is no dispute that the plaintiff is the owner of -/8/- as share in the suit property purchased from defendants Nos. 2-3 out of their 2/3rd share The defendant No 1 inherited his 1/3rd share in the property and purchased the remaining 1/6th share from the defendants Nos 2 and 3 thereby acquiring 1/2 share of the property. The suit land measured 5 decimals and is recorded as a Bas-toc with one ghar. The plaintiff instituted a suit for partition and in that suit the defendant No 1 filed an application under Section 4 of the Partition Act for pre-emption of the plaintiff's share alleging that the disputed property was the dwelling house of the undivided family of the defendants contemplated in the said section. The plaintiff opposed the said prayer contending that the co-sharers never possessed the disputed property as the dwelling house and they had no intention of using the same as the dwelling house.

( 2 ) THE trial Court on evidence accepted the plaintiff's contention and rejected the application filed under Section 4 by defendant No. 1 and decreed the suit in a preliminary form directing the defendant No. 1 to effect partition by allotting the northern half to the defendant No. 1 himself and southern half to the plaintiff, and in default, a Pleader Commissioner was to be appointed for partition by metes and bounds as indicated above.

( 3 ) THERE was an appeal by the defendant No. 1 and it was held by the appeal Court that in both the entries of the two settlement records there was mention of a structure on, the suit land. According to defendant No. 1 structure was demolished in 1967 D. S. and a new structure was being raised by defendant No. 1. According to the plaintiff the old structure fell down long time ago and the suit plot ceased to be a dwelling house and accordingly the disputed property lost the character of a dwelling house. The appellate Court accepted the contention of the defendant No. 1 and the appeal was accordingly allowed and the defendant No. 1's application under Section 4 of the Partition Act was allowed after setting aside the judgment of the learned Munsif. The present second appeal has been preferred against the aforesaid decision of the lower appellate Court.

( 4 ) MR. Panchanan Samadder learned Advocate appearing for the appellant has contended that the Court of appeal below erred in holding that there was a dwelling house on the suit plot when evidence was that there was a structure and that structure fell down long ago. Further Exhibit A the defendant No. 1's kobala dated the 10th May, 1962 described the land in suit as patit bhiti and it was further recited therein that the sale was being made as it fetched no income. Accordingly the application under Section 4 should have been rejected.

( 5 ) MR. Saktinath Mukherjee learned Advocate appearing for the respondents has contended on the other hand that the record of rights indicated that there was a ghar in the suit land and though the same fell down a new ghar was being constructed thereon. He relied on some decisions in which it has been held that the ancestral dwelling house does not lose its character of dwelling house simply because at some point of time there remained no structure on the suit land provided the parties intended to use the same as such.

( 6 ) WE shall consider the decisions which have been cited by the learned Advocates at the Bar. In the case of Nil Kamal v. Kamakshya reported in AIR 1928 Cal 539, it was observed that the mere fact that the huts were blown down does not make the dwelling house any the less a dwelling house so long as the members have not abandoned it or given up the idea of using it as such. In Bhagirath v. Afaq Rasul, it was held that the test is whether the family has abandoned all idea of dwelling in the house and not the state in whi

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