The term "dwelling house" used in section 44 of the Transfer of Property Act has been interpreted in the several judgments referred to by the learned advocates for both the parties in the instant case which I have already mentioned in the foregoing pages of this judgment and it appears that a "dwelling house" belonging to an undivided family is not one where the plaintiff actually resides but includes all other appurtenants used by the members of that undivided family as part of their residential house.

( 1 ) THIS appeal has been directed against the judgment and decree dated 5. 5. 1998 and 30. 6. 1998 respectively passed by Sri M. K. Chowdhuri, Civil Judge, Senior Division, Diamond Harbour, South 24-Parganas in connection with Title Appeal No. 48 of 1997 reversing the judgment and decree dated 23. 7. 1996 passed by Sri A. N. Roy, learned Munsif, Second Court, Diamond, Harbour in connection with Title Suit No. 53 1987.

( 2 ) IT appears from the record that the suit before the learned Munsif was for declaration and injunction. The learned Munsif was pleased to dismiss the suit on contest while the lower appellate Court reversed the judgment of the trial Court and having allowed the appeal decreed the suit.

( 3 ) THE plaint case in brief is that the properties in plot Nos. 839 and 840 originally belonged to four brothers namely Ganesh, Priyanath, Sitanath and Lalmohan Ghosh. There was no partition of the suit plots amongst the four brothers. Suit plots consist of plot Nos. 831, 832, 833 and 834 out of which plot No. 833 is a tank and other three plots are danga. The non-suit plot Nos. 839 and 840 are the undivided family dwelling house. One Lalmohon, the predecessor-in-interest of the appellant/plaintiff had 1/4th undivided share in the suit property. The plaintiff/appellant has 1/8th share in the suit property. The non-suit plot being Nos. 839 and 840 are the part and parcel of the suit plots and the suit plots having tank and kitchen garden are being used by the plaintiff and the suit plots are necessary for the convenient and beneficial enjoyment of the non-suit plots of the undivided family on which dwelling house is situated. The defendants contested the suit before both the Courts below and denied all the materials allegations.

( 4 ) THE substantial question of law formulated for the determination in the instant appeal is as below:"is the lower Appellate Court erroneous in arriving at the correct conclusion in interpreting the terms "dwelling house" and to hold that the suit plots are part and parcel of the non-suit plots?"

( 5 ) MR. Sardar Amzad Ali learned advocate along with Ms. Karabi Ghosh, learned advocate appearing for the appellant/defendant submits before me that according to the plaint case the defendants are the stranger purchasers of one of the suit plots being No. 831. It is pointed out by him that the said purchase was made on 22. 1. 1987. And thereafter the defendant No. 1 sold the said plot to the defendant No. 8. It is also pointed out by Mr. Ali that the transfer of the suit plots started from the year 1931, to the strangers. Mr. Ali further submits before me that the suit plots are never part and parcel of the dwelling house. Mr. Ali has then taken me through exhibit 'ka' which is a settlement map and tries to impress upon me that the dwelling house that is the non-suit plots and the suit plots are intervened by a road and the road is shown in the settlement map as plot No. 835. Mr. Ali has then argued before me that the plaintiff is to establish that the dwelling house belonged to an undivided family.

( 6 ) MR. Ali has cited a number of case laws. Thus, it was held in the case of Manicklal v. Gouri Sankar (AIR 1968 Cal 245) that in determining whether a house is a dwelling house within the meaning of those words in section 4 (1) of the Partition Act it has to be first found out whether the house in question was used by the members of the family for residential purpose. Secondly it must be remembered that a dwelling house would include not merely the structure where the members of the family actually reside or use to reside but also all appurtenants such as a courtyard used by the members and even other structures, if there are any, as for example a kitchen or a cowshed or a shed for garage provided they are or were used by the members of the family as part of their residential house. Finally, the question will also have to be determined with reference to partition taking into conside