( 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 himself sued for partition.

( 3 ) THE lower appellate Court has found as a fact that there was no previous partition, and that finding has not been challenged before us.

( 4 ) THE lower appellate Court has not dealt with the question whether the property in which the first appellant acquired an undivided share was a dwelling house in a satisfactory manner. All that it says on this point is

"the property in suit falls within the definition of dwelling houses for the purpose of Section 4, partition Act. It was a chopal and in the sale deed in favour of defendant No. 1 Ex. 5 it has been described as Haveli. It belonged to a family undivided qua the Dwelling house and the plaintiffs are admittedly members of that family".

The reference by the learned Judge to the description of the property in the sale deed is not accurate. We have examined the deed in quesand the property is described therein as"one haveli, with its main door facing north, in dilapidated condition, at present lying as waste land. . . . "

( 5 ) WE find it difficult to understand how a piece of waste land can be dwelling house, and there appears to be no evidence from which can be inferred that the description of the property in the sale deed was erroneous. The point appears not to have received due consideration in either of the lower Courts, and rather strangely no specific mention of it is made in the grounds of appeal. In the circumstances we are reluctant to decide the appeal on this ground; we think it fails (sick)also on the question of law.

( 6 ) SECTION 4 (1) of the Partition Act reads as follows:

"where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition the Court shall if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such a share-holder and may give all necessary and proper directions in that behalf. "

The plaintiffs in the partition suit are the re-maining members of the undivided family. The transferee has been made a defendant to that suit; he has not applied to be treated as a plaintiff for the purpose of partition. In similar circumstances in Rukmi Sewak v. Mt. Munesari, 1953 All lj 13: (AIR 1953 All 332) (A) Mushtaq Ahmad, J. held that there was no sound basis for making a distinction between a case in which the transferee is the plaintiff and one in which he or she is a defendant and that where the transferee was a defendant he was to be treated as a plaintiff for the purpose of the suit. The correctness of that decision is challenged in this appeal.

( 7 ) SUB-SECTION (1) of Section 4 of the Partition Act prov