JUDGMENT :

Bibhas Ranjan De, J.

1. I am dealing with the revision application under Article 227 of the Constitution of India whereby petitioners challenged proceeding of Misc. Case No. 09 of 1999 arose out of a petition under Section 4 of the Partition Act, 1893 (hereinafter referred to as Act, 1893), pending before the Learned Civil Judge (Senior Division), 9th Court, Alipore, South 24 Parganas (South).

Background in brief:-

2. The property in question being undivided dwelling house originally belonged to Dilip Kumar Dutta and Pradip Kumar Dutta. Dilip Kumar Dutta died leaving behind his wife, petitioner of the Misc. Case, and two married daughters. Pradip Kumar Dutta also died leaving behind his wife and sons (OP Nos 1 & 2 in the Misc. Case) and OP No. 3 Mihir Kumar Das is a tenant in a portion of the suit property. The heirs of Dilip took out a Partition Suit (T.S. 33/1997) against legal heirs of Pradip Kumar Das incorporating said Mihir Kumar Das as proforma defendant. In the partition suit said Mihir Kumar Das claimed himself the owner of share of Pradip Kumar Dutta by purchase. Thereby, said Mihir Kumar Das was transposed as defendant no. 3.

3. During pendency of the partition sui