BHASKAR BHATTACHARYA, J.

( 1 ) BY this revisional application, applicants under Section 4 of the Partition Act ("act") have challenged an order dated june 30, 1999 passed by the learned civil Judge, Senior Division, 4th court, Alipore in Misc. Case No. 72 of 1994 thereby rejecting an application under Section 4 of the Act filed by the petitioners.

( 2 ) THERE is no dispute that a suit for partition being Title Suit No. 23 of 1976 filed by some of the co-sharers of the petitioners was finally decreed on June 17, 1982. The present petitioner No. 1 was defendant No. 7 and the petitioner No. 2 is the son of the original defendant No. 2 of the said suit. The opposite party No. 1. an admitted stranger, by two different sale deeds dated September 11, 1993 and june 5, 1994 purchased Lot No. A allotted to the plaintiff Nos. 3 and 5 having 2/7th share and Lot No. B fallen to the plaintiff Nos. 4 and 6 having equal share respectively. After such purchase, the opposite party No. 1 started an execution case being Title execution Case No. 13 of 1994 for recovery of possession of her purchased portion by executing the final decree of partition passed in favour of her vendors.

( 3 ) THE present petitioners after getting notice of the said Title execution case entered appearance and filed an application under section 4 of the Act for pre-empting the shares purchased by the opposite party No. 1. The said application gave rise to the aforesaid Misc. Case No. 72 of 1994.

( 4 ) THE said application for preemption was resisted by the opposite party No. 1 by precisely raising two points. First, a part of the family dwelling house having been let out, the same lost the character of the 'family dwelling house' and secondly, the petitioners having accepted the final decree for partition by demarcating their respective portions in accordance with the allotment, they ceased to be co-sharers and as such at their instance the prayer for pre-emption was not maintainable.

( 5 ) THE learned trial Judge initially dismissed the prayer for preemption holding that the opposite party No. 1 being a tenant in the suit property for more than forty years could not be described as 'stranger purchaser'. Besides, the learned trial judge was of the view that an application under Section 4 of the Act was not maintainable at the stage of execution.

( 6 ) BEING dissatisfied, the present petitioners preferred a revisional application under Section 115a of the code of Civil Procedure before the learned District Judge and the learned revisional Court below by the order dated August 19, 1995 disposed of the said rovisional application by setting aside the order passed by the learned trial Judge and remanding the matter back to him for fresh decision whether the property has been partitioned by metes and bounds. The learned revisional Court below however specifically held that an application under section 4 of the Act was maintainable even at the stage of execution.

( 7 ) AFTER remand, the learned trial Judge on consideration of the materials-on record again dismissed the application for pre-emption. This time, the learned trial Judge held that he was satisfied that the property was partitioned by metes and bounds and that the petitioners got their respective allotments. The learned Judge further held that by induction of tenant in a part of the property, the same lost the character of the family dwelling house.

( 8 ) BEING dissatisfied, the petitioners by the legal advice of their the then learned Advocates preferred a miscellaneous appeal being Misc, appeal No. 353 of 1999 before the learned Court below although no appeal lies against an order rejecting the application under Section 4 of the act.

( 9 ) THE learned Court of appeal below however instead of dismissing the appeal on the ground of maintainability went into the merit and dismissed the same.

( 10 ) THEREAFTER, the petitioners have been advised to challenge the order of the learned trial Judge after remand by f

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