R. BHATTACHARYA, J.

( 1 ) THIS revisional application has been filed by the defendant of the original suit against an order passed by the learned Munsif on 25-3-1974 rejecting the petitioner's application under Section 4 of the Partition Act. The opposite party is opposing the application.

( 2 ) THE opposite party Jitendra Nath Karamkar filed a suit for partition against the petitioner Mohiuddin Molla and others. There has been a preliminary decree for partition. Thereafter when poceedings were going on for final decree, the petitioner Mohiuddin filed a petition under Section 4 of the Partition Act. The plaintiff opposed and the learned Munsif found that the entire suit property was not the dwelling house of the defendant's family. It has also been held by the learned Munsif that as previously a petition was filed on similar ground and since it was rejected, the subsequent application under Section 4 of the Partition Act was not maintainable. On these grounds the defendant's petition was rejected. Against that order the petitioner has come up before this Court challenging the propriety and validity of the said order.

( 3 ) I have heard Mr. Roy Chowdhury appearing on behalf of the petitioner and Mr. Motilal for the Plaintiff-opposite party.

( 4 ) MR. Roy Chowdhury's contention is that the learned Munsif acted beyond jurisdiction and also with material irregularity for not considering the relevant materials essential for the determination of the application and in doing injustice to the party. It has also been contended that the learned Munsif also acted illegally and with material irregularity in holding that the subsequent application under Section 4 of the Partition Act filed by the petitioner was not maintainable.

( 5 ) ON the question as to whether the suit property was not the dwelling house of the defendant's family, I find that the learned Munsif did not at all pay his attention to the respective cases of the parties. From the allegations made in paragraphs 1 and 8 of the plaint and also with reference to the other allegations made in the body of the plaint, it is quite clear and there is no ambiguity, that the suit property was the dwelling house of the predecessor-in-interest of the petitioner, the defendant No. 1 and the other defendants except the defendants Nos. 4 and 5. There is no doubt also that the defendant No. 3, the brother of the petitioner, was living in the suit property. In this case the parties did not adduce separate evidence regarding the character of the suit property. From the plaintiff's own admission it is quite clear that the learned Munsif did not look to the case of the plaintiff himself and that he wrongly construed the plaintiff's case.

( 6 ) IN this connection Mr. Motilal has made an attempt to argue that when there is a shop room in the suit premises, the suit property cannot be held as the dwelling house. On this question there can be no doubt that only a minor part of the dwelling house is a shop room. The meaning of the dwelling house in Section 4 of the Partition Act is relevant. The relevant portion of Section 4 of the Partition Act runs as follows:--"where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf. "in this connection we should consider the decision of a Division Bench of this Court in the case of Dulal Chandra Chatterjee v. Gostha Behari Mitra. There we find the following:"but assuming that the house concerned must be a residential house of the members of the family owning it. I am altogether unable to agree that any suspension of occupation or, for the matter

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