PK. Balasubramanyan, J.

This appeal is against a final decree for partition. It is filed by defendant No. 26 in the suit. Defendant No. 26 was originally a tenant of building situate in the decree schedule property. Thereafter he acquired an assignment of the rights of one of the co-owners of the property. Thus in addition to the leasehold he acquired a fraction of the reversion. The suit was filed for partition thereafter. The plaintiff claimed allotment of one out of eighteen shares. Defendant No. 26 filed a written, statement contending that he had purchased the share of defendant No. 9 for consideration and that therefore he was a co-owner of the property. The plaintiff was not entitled to the entire rent of the building. There were nineteen shares in the family including the deceased member and the plaintiff was entitled to only one out of nineteen shares. Defendant No. 9, his assignor was entitled to one out of nineteen shares and the other deceased member was entitled to one out of five shares in one out of nineteen shares. Defendant No. 26, as assignee of defendant No. 9 was entitled to six out of ninety five shares. Defendant No. 26 prayed fro allotment of the said six out of ninety five shares to him along with the house situate in the plaint schedule property wherein defendant No. 26 was residing and conducting his trade. The trial court raised the issue as to what were the correct shares to which the parties were entitled, who were entitled to and who were liable for mense profits and what was its quantum and to what equity if any the parties were entitled to. The court found that since the plaintiff and defendants 2 to 8 and 10 to 25 have claimed allotment of their shares in the property in a group, what was called for was only the separation of six out of ninety five shares due to defendant No. 26 and the same alone needed to be allotted separately. Since the plaintiff and the other defendants gave up their claim for mesne profits, no decree for profits was passed. While answering the issue relating to equity, the Court dealt with the claim of defendant No. 26 that he was residing in the house and was conducting his trade therein and hence he was entitled to be allotted the building. After referring to the opposition from the other sharers, the Court directed that the feasibility of the claim for allotment of the house situated in the plaint B schedule property to defendant No. 26 was to be considered at the time of the passing of the final decree.

2. The plaintiff applied for the passing of a final decree. A commission was taken out. The commissioner proposed a division of the property. Objections were taken. The report of the Commissioner was set aside. Thereafter the plaintiff and the other defendants made an application under S.4 of the Partition Act as I.A. 2788 of 1988 submitting that they are willing and entitled to purchase the share of defendant No. 26 in the property. This application was opposed by defendant No. 26. The Court considered that application and passed an order on 14.3.1989 holding that since all the sharers other than defendant No. 26 wanted the building to be allotted to them together, no separate sale of the property was necessary and it was only proper to direct the commissioner to allot the building to the plaintiff and defendants 1 to 8 and 10 to 25 towards their 89 out of 95 shares and give the land to defendant No. 26. It is thereafter that the commissioner proposed the subsequent allotment which is now accepted by the Court passing the final decree and by the learned Single Judge.

3. It is seen that defendant No. 26 did not challenge the order in I.A. 2788 of 1988 then and there. A contention was urged on behalf of the plaintiff and other supporting defendants that defendant No. 26 having failed to challenge the order in I. A. 2788 of 1988 at the appropriate time was not now entitled to question the allotment of the building to the share of the plaintiff and the other defe