A co-sharer of a family dwelling house is entitled to pre-emption under Section 4 of the Partition Act, even if the suit for partition is brought by him.

Sengupta, J. : This judgment shall dispose of the Second Appeal No. 404 of 1980 filed by Charu Chandra Manna (since deceased) and also the connected revisional application under section 115 of the C. P. Code also filed by the said Charu Chandra Manna. The appeal and the revisional application are directed against the judgment and decree dated 13.9.79 of the District Judge of Howrah by which the learned Judge dealt with and disposed of an appeal against the judgment and decree dated 15.5.79 passed by the subordinate Judge in a partition suit being title Suit No. 1/76. The original appellant and petitioner namely Charu Chandra Manna was Defendant No.4 in the said title Suit. He having died has been substituted by his legal heirs Umapati Manna and others.

Facts

2. The above partition suit was in respect of a dwelling house on Plot No. 318 of mouza Ichapur, P. S. Jagatdalpur in the district of Howrah. This dwelling house, according to Becharam Manna who instituted the suit, was a family dwelling house belonging to the family of the plaintiff and his uncle Gopal and Gopal having died his interest devolved upon his widow and two daughters (impleaded as Defendant Nos.1 to 3 in the suit) who thus acquired half share in the dwelling house. Charu Chandra Manna (predecessor of the present appellants and petitioners) was a stranger to the family, but he purchased in 1975 the half share of the heirs of Gopal in the said dwelling house. The plaintiff Becharam Manna filed the suit for partition of his share in the dwelling house with a prayer that he be allowed under section 4 of the Partition Act to buy up the half share purchased by Charu Chandra Manna who was impleaded as Defendant No. 4.

3. Charu Chandra Manna contested the suit and the prayer under section 4 of the Partition Act. Various pleas were taken in defence by Charu Chandra Manna, one of the pleas being that the suit was bad for partial partition inasmuch as some other plots including Plot No. 469 which had been recorded in the Record of Rights in the names of the plaintiff and his uncle Gopal (for half share) and in the names of the defendant Charu Chandra Manna and his brothers (for the remaining half share) have not been included in the suit. It was also contended, inter alia, that the prayer for purchase of his share under section 4 of the Partition Act was not maintainable.

4. To counter act the defence plea that the suit was bad for partial partition, the plaintiff on 15.2.79 had filed an application for amendment of the plaint for including the plot No. 469 in the schedule of the suit property. But this amendment application was not disposed of by the trial Court.

5. The trial Court found that the dwelling house in suit was a family dwelling house of the plaintiff and his uncle Gopal (predecessor of Defendant Nos. 1 to 3) and that the Defendant No.4 Charu Manna was stranger to the family. The trial Court further found that the plaintiff having -/8/- annas share in the family dwelling house was entitled to buy up under section 4 of the Partition Act the remaining -/8/- annas share purchased by Charu Chandra Manna from the heirs of Gopal. The trial Court also found that the suit was not bad for partial partition. Accordingly, the trial Court decreed the suit and made an order under section 4 of the Partition Act in favour of the plaintiff, Becharam Manna.

6. On appeal the learned District Judge came to the finding that the defendent Charu Chandra Manna was not a member of the family which occupied the undivided family dwelling house in plot No. 318. Some contentions were made before the learned District Judge that the prayer under section 8 of the West Bengal Land Reforms Act, and that the suit was bad for partial partition. The learned Judge rejected the contention that section 4 of the Partition Act was not applicable and upheld the decision of the trial Court that the plaintiff was entitled to pre-emption under section 4 of the Partition Act.

7. The learned District Jud