( 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