To attract the operation of Section 4 of the Partition Act, there must be an undivided dwelling house in existence belonging to an undivided family at the time of transfer.

DAS, J.

( 1 ) THE only question of law raised in this appeal is, of the plaintiff was entitled to any relief under Section 4 of the Partition Act (Act No. 4 of 1895 ). The facts are these:

( 2 ) THE plaintiff brought a suit for partition of the homestead plot No. 1277, measuring 0. 03 acre and the Bari plot No. 1309, measuring 0. 07 acre and desired to enforce his right to purchase the undivided share previously purchased by the defendant. The plaintiff's whole case was that though the other properties had been divided, the aforesaid two plots in dispute were in joint possession and accordingly he is entitled to the relief under Section 4 of the Partition Act. The defence was that the two disputed plots had also been divided between the two branches of the family, each branch being in separate possession of his portion of the property. Since the plots were rather too small, separate possession was not shown in the settlement records.

( 3 ) THE trial court came to the finding that the two suit-plots were not divided between the plaintiff and his cousin and the defendant was not a member of the family. The concurrent findings of fact therefore were that the defendant was not a member of the family and that the homestead and the Bari plots remained undivided. The trial court, however, relying on a decision of the Patna High Court: babulal Tiwari v. Hulla Mallah reported in AIR 1938 Pat 13, came to the conclusion that the plot No. 1309 (Bari) was ordinarily and reasonably necessary for the enjoyment of plot No. 1277 (homestead) and hence the plaintiff is entitled to relief under Section 4 of the Partition Act and directed him to pay a sum of Rs. 72/towards the valuation of the two disputed plots.

( 4 ) THE lower appellate court on a reconsideration of the evidence on record came to the finding that the plaintiff was not entitled to any relief under Section 4 of the partition Act and accordingly allowed the defendant's appeal, while maintaining the decree for partition as passed by the trial court. It is against this decree that the plaintiff preferred the present second appeal.

( 5 ) MR. B. Patnaik, learned counsel on behalf of the plaintiff-appellant urged that the plaintiff is entitled to the relief under Section 4 of the Partition Act. In order to fully appreciate the point, the facts have got to be stated in a little more detail. One Bali Swain had two sons, Udi and Sanai. The plaintiff is the son of Udi. Sanai's son Panu died issueless leaving his mother Sulei Bewa. Sulei sold Panu's admitted share of eight annas and ten pies interest in the aforesaid two plots to the defendant, Iswar Swain by a registered deed of sale dated 5-7-1941 (Ext. A ). In the record of rights the two disputed plots have been recorded joint in the name of the plaintiff and Panu whose share has been noted as eight annas and ten pies and the plaintiff's share as seven annas and two pies. It is also the admitted case of both parties that Panus' branch and the plaintiffs branch had separated before the settlement operation in mess and interest and there had been actual division of movables and most of the immovable properties, whereas the two disputed plots have been shown in the record of rights to be in joint possession with defined shares as aforesaid. In the plaint although the plaintiff had referred to the homestead plot he did not categorically state that there was an undivided dwelling house standing thereon. The homestead plot may he undivided, but there can be no necessary presumption that a dwelling house stood thereon and even if a dwelling house was standing thereon, it cannot be presumed that it is an undivided dwelling house. The categorical evidence in this case is that by 1941 no dwelling house whatsoever was standing on plot No. 1277 and the dwelling house that existed previously had been burnt down and razed to the ground. The plaintiff's own evidence was that of the two houses now standing, one is a residential house and other is a