G. K. MISRA, C. J.

( 1 ) RAMGOPAL (original plaintiff) who died during the pendency of the suit and balmakund (defendant No. 9 and D. W. 2) were the sons of one Sitaram agarwalla. Defendant No. 10 is the son of defendant No. 9. Substituted plaintiffs 1 (a) to 1 (i) (respondents 1 to 10) are the heirs of deceased ramgopal. Defendants 1 to 8 are the appellants,

( 2 ) THE case of the substituted plaintiffs may be stated in short. The disputed house is a double storeyed building situate in Jharsuguda town in the district of sambalpur. Defendants 1 to 8 were admittedly the monthly tenants under ramgopal and defendant No. 9 from 1941 onwards. The landlords served a notice to quit on the tenants and filed T. S. No. 35 of 1957 for eviction which ended in a compromise decree on 1-7-1. 959. Under the compromise, defendants 1 to 8 agreed to vacate the suit house not later than two years from the date of the decree and pay compensation at the rate of Rs. 50/- per month from 1-4-1959. Defendants Nos. 4 to 8 paid Rs. 200/-to Ramgopal and Rs. 50/- to defendant No. 9 towards compensation and did not pay the balance. Taking advantage of the dissension between Ramgopal and defendant No. 9, defendants Nos. 1 to 8 prevailed upon defendants Nos. 9 and 10 to sell away their half share of the suit house in favour of defendant No. 4 by a registered sale deed (Ext A1 on 30-10-1960 for Rs. 8,500/ -. The sale deed recited that the northern half of the suit house had fallen to the share of defendants Nos. 9 and 10 in a partition effected on 29-9-1950 though there was no partition. The suit was filed for partition of the house in two equal shares with a prayer that ramgopal would buy the share of the dwelling-house purchased by defendant no. 4 under Section 4 of the Partition Act Thereinafter to be referred to as the act) on payment of a price to be fixed by the court. There was a prayer for recovery of Rs. 800/- as damages and for future damages. Defendants Nos. 4 to 8 contested the suit. In the written statement filed by them they made the following averments. The disputed house was not a dwelling house. It was partitioned by metes and bounds by an agreement dated 29-9-1950. The other properties of Ramgopal and defendant No. 9 had been partitioned amongst them by metes and bounds more than 36 years before the suit Under the compromise in T. S. No. 35 of 1957 defendant No. 5 paid a sum of Rs. 200/- to the plaintiff and Rs. 100/-to defendant No. 9. As the disputed house was not a dwelling-house of the family of Ramgopal and had been divided by metes and

pounds in 1950. Section 4 of the Act has no application. Even assuming that Section 4 has application the plaintiffs were liable to pay the price of the half share as on the date of the suit and not as on the date of the sale.

( 3 ) THE learned Subordinate Judge recorded the following findings:--

(1) All the properties of Ramgopal and defendant No. 9 excepting the disputed house were partitioned by metes and bounds more than 30 years before the suit; (2) There was no partition of the suit house on 29-9-1950; (3) The disputed bouse is the dwelling-house of Ramgopal and balmakund; (4) They were undivided qua the dwelling-house ; (5) The suit is not barred by limitation; (6) The value of the share purchased by defendants Nos. 1 to 8 is Rs. 8,500/ -.

On those findings he held that Section 4 of the Act is applicable and directed defendant No. 4 to execute a sale deed within three months in respect of the share purchased by her from defendant No. 9 on payment of Rs. 8,500/- by the plaintiffs and deliver possession failing which the plaintiffs shall be entitled to deposit Rs. 8,500/- in court on the expiry of three months from 16-11-1965 and have a sale deed executed and take delivery of possession through court. He also decreed damages of Rs. 800/ -.

( 4 ) AGAINST the judgment and decree of the learned Subordinate Judse defendants Nos. 1 to 8 filed an appeal. Our learned brother B. K. Ray. J. , dismissed the a