The character of a property as a dwelling house under the Partition Act is retained even with temporary use for commercial purposes, necessitating fresh adjudication of related applications.

JUDGMENT :

K.R. Mohapatra, J.

1. This matter is taken up through hybrid mode.

2. Order dated 2^nd February, 2016 (Annexure-7) passed by learned 1^st Additional Civil Judge (Senior Division), Cuttack in Title Suit No.458 of 1991 (Final Decree) is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Section 4 of the Partition Act, 1893 to exercise the right of preemption, has been rejected.

3. As submitted by Mr. Mohanty, learned counsel for the Petitioner, TS No.458 of 1991 was filed by one Laxmi Dei for partition of the suit property claiming eight annas share therein. She also prayed for a decree to direct the Defendant Nos.2 and 3 (Opposite Party Nos. 3 and 4) to re-transfer the eight annas share of Defendant No.1 purchased by them under Section 4 of the Partition Act. She also prayed for certain other reliefs, consequential as well as alternative. The suit was preliminarily decreed vide judgment dated 2^nd December, 1995 declaring that the Plaintiff and Defendant No.1 have eight annas share each in the suit property. It was also directed that the Plaintiff may exercise her right under of the Partition Act to repurchase the suit property from Defendant Nos.2 and 3. Further, Defendant Nos.2 and 3 were also directed to execute a sale deed in favour of the Plaintiff within three months therefrom on receipt of Rs.18,000/- from her and to give delivery of possession of the suit property. Assailing the same, the Defendant Nos.2 and 3 filed Title Appeal No.18 of 1996, which was disposed of vide judgment dated 28^th February, 2003 (Annexure-2) confirming the decree with regard to entitlement of eight annas share of each of the Plaintiff and Defendant No.1 over the suit property. But the finding with regard to exercise of power under of the Partition Act over the suit house by the Plaintiff was set aside, holding it to be pre-mature.

4. Defendant Nos.2 and 3 are the purchasers of a portion of the suit property from Defendant No.1, namely, A. Chandrabati vide RSD dated 18^th June, 1991. The Plaintiff, namely, Laxmi Dei and husband of Defendant No.1, namely, A. Bhaskar Rao are the siblings. When the Plaintiff came to know that Defendant No.1 managed to record her name in the ROR and sold the suit property to Defendant Nos.2 and 3, which was their dwelling house, she filed the suit as aforesaid. In the meantime, Defendant Nos. 2 and 3 sold the suit property to Opposite Party No.1. Thus, the Opposite Party No.1 initiated the Final Decree proceeding for carving out the share of Defendant No.1 and to allot the same in her name.

4.1 After the death of the Plaintiff, the Petitioner being her son was substituted in her place. During pendency of the Final Decree proceeding, the Petitioner filed an application under Section 4 of the Partition Act to exercise his right of preemption to repurchase the property from said Babita Ram-Opposite Party No.1, who purchased the suit property from Defendant Nos.2 and 3. Said application was rejected on the ground that the property in question has lost its character of being a dwelling house by the time the application under of the Partition Act was filed. Hence, this CMP has been filed assailing the said order under Annexure-7.

5. Mr. Mohanty, learned counsel for the Petitioner submitted that learned trial Court while passing the preliminary decree and learned appellate Court while pronouncing judgment in TA No.18 of 1996 concurrently held that the suit property was a dwelling house. Further, the Petitioner in his evidence in affidavit at para-7 stated as under:-

“7. That originally there were residential houses in the property and my mo