( 1 ) THIS is a second appeal from the decision of the subordinate judge, Alipore in a suit for partition. The plaintiff is a purchaser from one of the co-sharers, a brother of the defendant. The plaintiff instituted the suit for partition claiming one half share in the disputed property. The defendant filed a petition under Section 4 of the Partition Act and applied for a relief under that section on the ground that the property was a dwelling house. It belonged to an undivided family and it has been transferred to a person who is not a member of such family. The application under Section 4 was allowed by the trial court; against that there was an appeal and the appeal has been dismissed. The appeal to this Court is against the decision of the appellate court At an earlier stage of the proceeding we sent the matter to the court below for enquiry as to whether whole of the property was a dwelling house or not and whether the portion which has been in use and occupation of the tenant is a separate and distinct portion from that which has been used for the purpose of residence of the members of the family. The second point for which the matter was sent to the Court