A dwelling house does not cease to be a dwelling house merely because of suspension of occupation or, for the matter of that, absence of the owner therefrom or because of occupation or terminable occupation thereof by tenants.

( 1 ) ONE Girish Chandra Dutt was the owner of certain properties, which were made the subject of a suit for partition. Out of an application, under Section 4 of the Partition Act, made in the aforesaid suit for partition, the present appeal arises.

( 2 ) GIRISH was succeeded by three sons, namely Tulsidas (the plaintiff respondent No. 1), Bonbehari (defendant No. 1, who is the respondent No. 2) and Satya Sadhan (father and husband respectively of defendants Nos. 2 and 3, who are respondents Nos. 3 and 4 ). Sankar Charan (defendant No. 4, who is respondent No. 5) is the son of the plaintiff. He was made a party to the partition suit in his capacity as the purchaser of a certain share in some of the properties included in the partition suit. Kali-pada (defendant No. 5, who is the appellant) is the transferee of the share of defendants Nos. 2 and 3 (respondents No. 3 and 4) in some out of the several properties, which were included in the suit for partition.

( 3 ) THE property in dispute is C. S. Plot No. 1596, recorded in Khatian No. 183 of Mouza Khato-ra. In the settlement record the land is recorded as Udbasu land, measuring 19 cent. The said plot was described in item No. 2 of the Schedule to the plaint.

( 4 ) THE aforesaid plot No. 1. 596 appears to have been acquired in the name of Natabar, brother of Girish, in the year 1884. In the year 1892, them was a partition between Girish and Natabar and plot No. 1596 was exclusively allotted to Girish, under the said partition. On 12-5-1947, defendants Nos. 2 and 3 (respondents Nos. 3 and 4) granted a mourashi mokrari settlement of their share in some of the joint properties including C. S. plot No. 1596, in favour of Kalipada (defendant No. 5 appellant ). The Patta granting the aforesaid settlement is Ex. C.

( 5 ) IN the partition suit, hereinbefore mentioned, there was a preliminary decree for partition passed on 12-12-1953. Plaintiff's claim to item No. 6 of Schedule to the plaint was dismissed because of non-joinder of necessary parties. His share was found to be 6as-6g-2k-2 kranties in item No. 5 of the Schedule to the plaint. In the remain-ling items of divisible property, plaintiff's share was found to he one-third. It was directed by the said preliminary decree :"the leasehold of the defendant No. 5 will go to the allotments of defendants Nos. 2 to 3 from whom be took the lease provided they pay for partition. The question regarding Section 4 of the Partition Act cannot now be determined since the value of the property will have to be ascertained when that question will be dealt with at the time of the final decree. "there was Commissioner for partition appointed to effect partition by metes and bounds. In the report submitted by the Commissioner, we find the following observation :"i am not inclined! to disturb the possession of defendant No. 5, the lessee of defendants Nos. 2 and 3, by allotting the portion of the land to the plaintiff by demolishing and removing the structures of defendant No. 5, and which I think would be unjust, unfair and inequitable under the facts and circumstances of the present case. So after considering the convenience and inconvenience of the parties and leaving aside the portion of the land possessed exclusively by defendant No. 5, the lessee of defendants 2 and 3, I have allotted the major portion of the front land to the share of the plaintiff. "after the Commissioner submitted his report, the plaintiff filed an application under Section 4 of the Partition Act 1893, on 25-2-1955 and therein stated that item No. 2 of the Schedule to the plaint (Plot No. 1596) was the ancestral Udbastu land of the plaintiff and defendants Nos. 1 to 4 and was being used as part of the dwelling house (Bastu) and that the defendant No. 5. being a stranger, was not entitled to possess the same on the basis of any settlement thereof taken by him. Plaintiff expressed his willingness to purchase the share of defendants Nos. 2 and 3, in said plot No.