( 1 ) IN this second appeal the main question to be decided is as to whether the plaintiff appellant is entitled to the benefit of Section 4 of the Partition Act. The decision of a learned single Judge of this Court in Rukmi Sewak v. Mt. Munesari, 1953 All LJ 13: (AIR, 1953 All 332) (A), has been overruled by a bench of this Court in Ramzan Baksh v. Nizamuddin, S. A. No. 850 of 1952: ( (S)AIR 1956 All 687) (B ). In that, case the bench has accepted it as a well known principle that a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant. The decision of the Patna High Court in Sheodhar Prasad Singh v. Kishun Prasad Singh, AIR 1941 Pat 4 (C), and the decision of the Calcutta High Court in Abu isa Thakur v. Dinabandhu Banik, AIR 1947 Cal 426 (D), were considered by the bench to be distinguishable on facts. It was, however, observed that the bench found it unnecessary to venture upon the opinion as to whether the view should be followed. In the case before the bench of this Court the defendant transferee had neither entered into possession of the dwelling house nor had he sought to claim a share therein and he could not in these circumstances be deemed to be a transferee who sues for partition within the meaning of Section 4 of the Act.

( 2 ) IN the present second Appeal, however, the defendants appear to have been parties to an earlier litigation which ended in a compromise and some of the owners of the property acknowledged in that compromise that the defendants were owners of 1/48th of the house. There is a dispute as to whether in the circumstances of the case the defendants could be held to have acquired an interest in the property by a transfer and were transferees within the meaning of section 4. The lower appellate Court took the view that they were not such transferees.

( 3 ) THE lower appellate court considered that the rule laid down by the Patna High Court in (AIR 1941 Pat 4) (C), was applicable to the facts of the case and the plaintiff was entitled to the benefits of Section 4 of the Partition Act. The defendants are in possession of the house in suit and the facts of this case do not appear to be covered by the decision of the bench in S. A. No. 850 of 1952: ( (S) AIR 1956 All 687) (B ). I am of opinion, therefore, that this case should be placed before the Honble the Chief Justice for being referred to a bench. (Order of reference by Division Bench consisting of Mootham C. J. and Shrivastava J.)MOOTHAM C. J. :

( 4 ) THIS is an appeal from judgment and decree of the Civil Judge of Azamgarh dated the 17th august, 1946, setting aside the judgment and decree of the 1st Additional Munsif of Azamgarh dated the 7th January, 1946. For the purposes of this appeal the facts can be very shortly stated. "

( 5 ) THE appellant, who is admittedly the owner of a 47/48ths share in a house, brought a suit for possession, or alternatively for partition, of that house. The defendants were respondents Nos. 1 to 9, who are admittedly in possession of the house and certain other persons who were originally co-sharers and were joined as pro forma defendants. The suit was founded on the allegation that respondents Nos. 1 to 9 were the transferees of a 1/48th share from certain former co-sharers; and the appellant claimed that under Section 4 of the Partition Act he was entitled to possession of the entire house upon payment, to these respondents of the value of their 1/48 share. The suit was decreed by the trial court, but the lower appellate court set aside the trial courts decree on the ground, first, that respondents Nos. 1 to 9 were not transferees within the meaning of Section 4 of the Partition Act, and, secondly, because the house was not a dwelling house within the meaning of that section. Respondents Nos. 1 to 9, who are the only contesting respondents, do not now contend that the house is not a dwelling house. They rest their case on their