The interpretation of Section 4 of the Partition Act and the principles for determining whether adjacent plots form part of a dwelling house for the purpose of applying the right of pre-emption.

NARASIMHAM, J.

( 1 ) THIS is an appeal against the concurrent decisions of the two lower Courts decreeing the respondent-plaintiffs' suit for partition.

( 2 ) THE properties to be partitioned are two plots bearing Nos. 1247 (having an area of six cents) and 1390/1827 (having an area of two cents) in. Mouza Baro, p. S. Tihiri in Balasore district. In the Current Settlement, plot No. 1247 was recorded as 'gharbari' (homestead) and plot No. 1390/1827 was recorded as 'bari'. Admittedly, the aforesaid two plots were the joint property of one Mayadhar, and Upendra who had -/8/- share each. Defendants 1, 2 and 3 are the successorsin-interest of Mayadhar. Upendra sold his -/8/- interest in the aforesaid plots, to one Dibakar Mahalik on 22-1-1931 (Ex. 3-a) who, in turn, sold it to the plaintiffs on 6-2-1937 (Ex. 1 ). The plaintiffs' claim for partition is based on the transfer of title in their favour by the aforesaid" two sales.

( 3 ) THE main contention raised by the defendants was that as they were co-sharers of Upendra and as the disputed plots formed part of their homestead, Section 4 of the Partition Act should be applied. and they should be given the option of purchasing, the plaintiffs' share at the current market value. The two lower Courts, however, rejected this contention of the defendants holding (though not clearly)that the disputed plots did not form part of the joint, dwelling house of the defendants and Upendra.

( 4 ) FROM the map (Ex. 2-a) prepared by a Commissioner who made local inspectipn, it would be clear that plot No. 1247 lies adjacent north of plot Nos. 1389 and 1390 in which is located the residential house of the defendants. Between the two plots, however, there is a village rasta; but there is a doorway leading from the defendants' house to the rasta and almost opposite to it there is another doorway leading from the rasta into plot No. 1247. In a portion of plot No. 1247, there was a thatched hut in a dilapidated condition. Plot No. 1390/1827 lies adjacent south of plot Nos. 1389 and 1390.

( 5 ) THE principles to be borne in mind in deciding whether the disputed plots form part of the dwelling house of the defendants are well-settled. In -- 'khirode chunder Ghosal v. Saroda Prosad Mitra', 12 Cal LJ 525 (A) it was pointed out that the expression 'house' in Section 4 of the Partition Act

"embraces not merely the structure or building but includes also adjacent buildings, curtilage, garden court-yard, orchard and all that is necessary for the convenient occupation of the house but not that which is only for the personal use and convenience of the occupier. "

It was further pointed out that the question whether a particular plot of adjacent land is or is not necessary to the enjoyment of a house is to be determined on evidence. The same principle was reiterated in a later Patna decision reported in -' babulal Tiwari v. Hulla Mallah', AIR 1938 Pat 13 (B ). The mere fact that there is an intervening lane between the actual residential house and a plot which is claimed as appurtenant to it will not necessarily show that the latter plot does not form part of the dwelling house if it could be reasonably held, on the evidence, that the latter plot is used for the accommodation of servants or guests or for other purposes incidental to he use of the house by residence. Thus, in -- 'gour Chand Basak v. Khirode Nath', AIR 1948 Cal 73 (C) though a municipal lane intervened between the disputed house and the admitted main house of the family, it was still held that the disputed house formed part of the dwelling house because though the family members did not actually sleep there it was used by the servants and guests of the family. In --'boto Krishna v. Akhoy Kumar', AIR 1950 Cal 111 (D) it was further pointed out that the integrity of the dwelling house would not be destroyed merely because the co-sharers were living in separate nuts inside the undivided plot,

( 6 ) THE actual condition of the disputed dwelling house