The disputed property, although vacant land at the present moment, could be treated as "dwelling house" within the meaning of Section 4 of the Partition Act, provided that the plaintiffs had an intention of erecting their residence or dwelling house on the property and that they had not abandoned or given up the idea of using it as such.

( 1 ) THIS appeal is by the plaintiffs and it arises out of a suit for partition, in which the plaintiffs made a claim for pre-emption under Section 4 of the Partition Act.

( 2 ) THE suit was instituted on March 20, 1957. The plaint was a simple plaint for partition on the allegation inter alia that the plaintiffs had l/3rd undivided share in the disputed property. Within two days, namely, on March 22, 1957, the plaintiffs applied for a temporary injunction to restrain the defendant from erecting structures on the suit land or changing its character and, in the said application, a reference was made to the plaintiffs' claim for pre-emption, or right in that behalf, -- under Section 4 of the Partition Act upon the ground that the defendant was a stranger purchaser, although he had purchased the major share, namely, 2/3rds, and, on the implication, though not very expressly stated, that the disputed property comprised the ancestral dwelling house of the plaintiffs' family. Thereafter, the suit proceeded for some time and, eventually, on September 22, 1959, there was a specific application for pre-emption under Section 4 of the Partition Act, mentioning all the requirements under the said section.

( 3 ) THE learned Trial Judge, after finding that the plaintiffs had l/3rd share in the disputed property and the defendant the remaining 2/3rds, made a preliminary decree for partition, and, upon the plaintiffs' above application under Section 4 of the Partition Act, came to the conclusion that, having regard to the nature of the disputed property and the circumstances of this case, it could be treated as coming sufficiently within the expression "dwelling house belonging to undivided family", as used in the said section, and, accordingly, the plaintiffs were entitled to pre-emption under the said statutory provision. In that view, he allowed the plaintiffs' said claim for pre-emption.

( 4 ) ON appeal, this decision was modified by disallowing the plaintiffs' claim under Section 4 of the Partition Act and giving them, in lieu thereof, only a decree for partition to be worked out in the ordinary way by a Commissioner by allotment of the disputed property to the parties in accordance with their shares, keeping in view their present possession.

( 5 ) FROM this appellate decree, the present second appeal has been filed by the plaintiffs, who press their claim for pre-emption under Section 4 of the Partition Act and challenge the findings and the decision of the Lower Appellate Court on the point and ask for restoration of the Trial Court's decision in respect of the same.

( 6 ) FOR the decision of this appeal, it will be convenient now to state, in brief, the relevant facts.

( 7 ) THE suit property originally belonged to one Satya Charan, who was the grandfather of the present plaintiffs. Satya Charan died, leaving three sons Gouri, Bimal and Nirmal, Plaintiffs are the sons of Gouri and are his heirs and legal representatives. On June 15, 1954, the plaintiffs appear to have sold their l/3rd share in the disputed property to their co-sharer, uncle Nirmal, who thus got 2/3rds share in the disputed property, l/3rd under this purchase and l/3rd originally by inheritance from Satya Charan. On March 19, 1955, the plaintiffs appear to have purchased, from co-sharers Bimal's heirs, their l/3rd interest in the disputed property, and, on August 4, 1956, Nirmal appears to have sold his above 2/3rds share of the disputed property to the defendant.

( 8 ) THE disputed property, as it now stands, comprises vacant land but it is well established that, upon this land, stood the original ancestral dwelling house of the plaintiffs' undivided family, or, in other words, that the disputed property was the site of that ancestral dwelling house. That house, along with the land underneath, forming its site, appears to have been requisitioned under the Defence of India Act by the military authorities, sometime in the year 1942, and it r