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

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