Dismissal of petition u/s 4(1) not appealable.

Respondents 1 and 2 herein filed O.S. No. 309 of 1959 on the file of the Court of the District Munsif of Nagapattinam for partition and separate possession of their 3/4 share in the suit property which itself is one half of a dwelling house. The third respondent to the present appeal was the first defendant inthe suit and one Amirthalingam Pillai was the second defendant After the death of the said Amirthalingam Pillai, during the pendency of the suit, his widow and children were brought on record as defendants 3 to 6. In that suit a preliminary decree for partition was passed on 14th December, 1960. On 9th March 1961, one Booman alias Parakalam Pillai purchased the share of defendants 3 to 6 in the suit property. On 13th June, 1962, on an application made by him the said Booman Alias Parakalam Pillai was added as the seventh defendant to the suit The said order was challenged on appeal and the appeal was dismissed on 11th March, 1963. A civil revision petition filed to this Court failed on 26th July 1963. On 31st October, 1963, respondents 1 and 2 herein, namely, the plaintiffs in the suit filed an application under section 4 (1) of the Partition Act, 1893 This application was dismissed on 29th November, 1963. Thereafter on the application of the seventh defendant a final decree was passed on 31st December 1963. Against the said final decree A.S. No. 9 of 1965 was preferred to the Subordinate Judge of Nagapattinam who, by his judgment and order date 1st March, 1965 allowed the appeal and remitted the final decree proceedings back to the trial Court and directed the trial Court to proceed under section 4 (1) of the Partition Act and value the share of the seventh defendant in the suit property and sell it to the plaintiffs As I pointed out already, the suit property itself was one half of the house and the plaintiffs are entitled to 3/4 thereof, namely, 3/8th of the entire house, the seventh defendant being entitled to 1/4 share of the suit property. It is admitted that the second defendant to the suit was the owner of the other half of the house and the seventh defendant had purchased that half also with the result the seventh defendant is entitled to 5/8th of the entire house. It is against the order of remand of the learned subordinate Judge dated 1st March, 1965, that the present appeal has been filed.

Mr. Rathnam, the learned Counsel for the appellant contended (i) that the application filed by the plaintiffs under section 4 (1) of the Partition Act having been dismissed on 29th November, 1963, and they not having preferred any appeal against the same, the learned Subordinate Judge was in error in remanding the proceedings back to the trial Court with a direction to apply the provisions of section 4 (i) of the Act; and (ii) that to the present case section 4(1) has no application, because (a) the purchase by the seventh defendant was subsequent to the preliminary decree dated 14th December, 1960, and therefore on that date there was no undivided family owning a dwelling house, and (b) secfon 4 (1) will apply only when that transferee filed a suit for partition and that when that transferee figures only as a defendant in the suit for partition filed by other persons section 4 (1) has no application.

For the purpose of understanding the first contention of the learned Counsel it is necessary to set forth one other fact. In the appeal filed before the learned Subordinate Judge the plaintiffs had taken a ground challenging the correctness of the order dated 29th November, 1963, of the learned District Munsif dismissing the application filed under section 4 (1) of the Act. They also filed a fresh appli-cation under section 4 (1) of the Act before the learned Subordinate Judge himself the learned Subordinate Judge did not rest his conclusion solely on the basis of the fresh application under section 4 (1) of the Act filed before him, but also on the basis of his conclusion that the earlier dismissal of the applicatio