P. N. MITRA, J. :- This is an appeal under cl. 15, Letters Patent, from a judgment of Chakravartti, J. It is on behalf of defendant 1 in a suit for partition of a dwelling house and certain other properties. Our learned brother in concurrence with the Courts below has rejected the appellants prayer under S. 4, Partition Act, to buy up the plaintiffs share in the dwelling house and it is the propriety of this decision that is in question before us in this appeal.

2. The facts, which are not now in dispute, are these. One Fakir Ghose and his three brothers Dwarik, Tarini and Ambika held a raiyati holding under a gaati tenure which was owned by one Kalidhan Debi, and their dwelling house stood on a portion of this holding. The ganti tenure was purchased by Fakir. He thereafter died leaving two sons Upen and Nabin as his heirs, who obtained by inheritance each an eight annas share of the ganti and a two annas share of the holding including the homestead. On 12th June 1920, Upen sold his undivided share in both the tenures and the holding including the homestead to one Troilakya who was a stranger to the family. After this sale, Upen left the homestead and Troilakya came to occu