( 1 ) THIS is an appeal from a judgment and decree of the Additional Civil Judge, Bijnor, dismissing an appeal from the judgment and decree of the Munsif of Bijnor in a suit for partition.

( 2 ) THE dispute between the parties relates to certain property which belonged to one Tafazzul hussain. After Tafazzul Husains death one of his heirs sold his undivided share in the property to the first appellant. Sometime thereafter the respondents, who are the remaining heirs, instituted the suit out of which this appeal arises for partition of the entire property. They claimed that they were entitled under Section 4 of the Partition Act, 1893, to include in the property the subject of the suit the share of the first appellant upon payment to him of the value of his share. The appellant raised several defences. He contended, first, that after the death of Tafazzul husain the heirs partitioned the latters property and that he had acquired the share which had been allotted to his vendor in this partition; alternatively he denied that Section 4 of the Partition act had any application as the property in which he had acquired a share was not a dwelling house, and because he had not