JUDGMENT :- This appeal is on behalf of the defendants and arises out of a suit for partition of a tank.

2. The plaintiffs case is that there were other lands near about the tank belonging to the parties, there had been a previous partition of those other lands, but the tank was left Ejmali. The plaintiffs claim two-third share and defendant 1 one-third share in the disputed tank.

3. The defence was that the watery portion of the tank could not be partitioned. Some of the other contentions raised in the plaint which are not material for the present appeal were also contested.

4. The learned Munsif held in favour of the plaintiffs and came to the conclusion that it was not possible to possess the tank in two separate portions. The only way of partitioning the tank was by selling it under the provisions of the Partition Act. The Court farther directed that if the parties failed to settle the price of the tank amicably among themselves, a Commissioner would be appointed on the plaintiffs petition for holding a bid amongst the parties after a valuation was fixed by the Court. The tank would then be sold amongst the parties to the suit and the sale proceeds would be divides amongst them according to their respective shares.

5. After the passing of this preliminary decree, the defendants filed a petition under S. 3, Partition Act on 28th September 1915, for leave to purchase the share of the plaintiffs who had asked for the sale of the tank under S. 2, Partition Act. The learned Munsif, by his order dated 30th November 1945, allowed the defendants prayer under S. 3(1), Partition Act. The Commissioner was thereupon directed to ascertain the value of the two-third share belonging to the plaintiffs.

6. The plaintiffs preferred an appeal before the Court of the District Judge and the only question agitated was whether the application under S. 3, Partition Act, as made by the defendants, was maintainable in law and also whether the direction given by the learned Munsif for the sale of the two-third share belonging to the plaintiffs was according to law. The learned District Judge came to the conclusion that the defendants application under S. 3, Partition Act, was not maintainable after the passing of the preliminary decree. The application was accordingly rejected.

7. The defendants have preferred the present appeal before this Court and the only question in issue is as to the scope of S. 3, Partition Act, and the point of time when the defendants must make the application under that section.

8. There is prima facie a broad distinction between the provisions contained in S. 2 and S. 3 read with S. 6, Partition Act, forming practically one group and S. 4 of the same Act on the other. Section 4 applies to the case of a dwelling house, a share of which has been transferred to a stranger and there are certain conditions which must be fulfilled before S. 4 cornea into operation. As explained in the casa of Kshirode Chunder v. Saroda Prosad, 12 CLJ 525 : (7 IC 436), the claim most relate to a dwelling house of an undivided family secondly, some share in it must have been transferred to a stranger; and thirdly, that stranger mast have sued for partition. If reference is made to the provisions contained in Ss. 2 and 3 of the Act, it will appear that one of the parties to the dispute may or may not be a stranger to the family. Even if the subject of the dispute is a dwelling house, unless there be a stranger, S. 4 will not be attracted. Section 3 contemplates a request by a party with certain qualifications for the sale of the entire property, in suit. It is significant that this section favours the smaller share-holder at the express of the larger and the fact of a person owning a large share is a disability under the section, since such a person is precluded from offering to buy up the interest of the party owning the smaller share.

9. It has been repeatedly held that the application by a party to attract the provisions contained in S. 4 of the Act ma

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