( 1 ) THIS appeal is at the instance of the defendant No. 10 in a suit for partition. The plaintiff is a purchaser of 4 annas share of Bhupendra Nath Das and others who were admittedly co-sharers of the properties in suit. So far as the plaintiff's share is concerned, there is no dispute that the plaintiff acquired the said 4 annas share. The defendant No. 10 in his written statement submitted that he was entitled to pre-empt the plaintiff's 4 annas share Under Section 4 of the Partition Act inasmuch as the suit property was home-stead of the parties, namely, the defendant No. 10 and his co-sharers. The learned Judge framed an issue being issue No. 2 as follows:--Is the contesting defendant No. 10 entitled to get relief under Section 4 of the Partition Act?" the defendant No. 10, however, did not make any application for pre-emption under Section 4 of the Partition Act.

( 2 ) BY his judgment dated July 20, 1964, the learned Judge determined the shares of the parties. As to issue No. 2, the learned Judge was of the view that the said issue need not be decided at that stage and that it would be decided later at the instance of the contesting defendant No. 10.

( 3 )