( 1 ) THIS is an appeal by defendant 1 Ganga Dutt Murarka who had purchased 5/6th share of the disputed property from one of the co-sharers from an order under Section 4, Partition Act. After the purchase of 5/6th share of the disputed property by defendant 1, Bibhabati who acquired 1/6th share of the disputed property under the Will of her mother instituted a suit for partition. There was a preliminary decree on 17-6-1952. Thereafter she made an application under Section 4, Partition Act. The application was opposed by defendant 1 on two grounds, namely, that the plaintiff was not a member of the undivided family to which the disputed property belonged, and, secondly that the application was not maintainable in law. The learned Court below overruled both the objections and allowed the application of Bibhabati under Section 4, Partition Act.

( 2 ) MR. Gupta on behalf of the appellant does not raise before us any of the two points taken before the trial Court, but raises a new point altogether, namely, that there was no investigation by the Court below as to whether the entire disputed property really formed a dwelling house and whether to the whole of this property S