JUDGMENT

1. This is an appeal by the plaintiff Niranka Sashi Roy against an order of the lower Appellate Court passed u/s 4 of the Partition Act.

2. The facts of the case are that the plaintiff as a purchaser from a co-sharer of the defendant brought a suit for partition of several plots of land one of which was the homestead of the defendant. The Trial Court dismissed the suit on the finding that the plaintiff and his vendor had failed to prove their title to the lands in suit. On appeal the learned Subordinate Judge held that the plaintiff had succeeded in establishing his title and ordered that the partition should be made. Thereupon a preliminary decree for partition was passed by the Court of Appeal below on the 28th January 1922. On the 18th April 1922 the respondent presented an application before the Court of Appeal below purporting to be one for a review of its judgment praying that an order may be passed u/s 4 of the Partition Act of 1893 enabling the defendant-respondent to purchase the share in the homestead from the plaintiff. In the lands in suit the share of the plaintiff was 8-annas and that of the defendant Swarga Nath Banerjee the remaining 8-annas. The learned Subo