( 1 ) THREE brothers Aizaz Rasul, Afaq Rasul and Mushtaq Rasul owned house No. 14 in mohalla mobariz Nagar within the town of Unnao which they used as a family residential house. By a sale deed dated 13-9-1938, Aizaz Rasul sold his 1/3 share to Bhagirath. Thereafter, Aizaz Rasul delivered possession over a locked bothri inside the house to Bhagirath which naturally created difficulties in the way of the continued occupation of the house by the two other brothers and the females of their family. They accordingly left it and went to stay with the in-laws of one of them.

( 2 ) THIS state of affairs continued till 1946, when the vendee Bhagirath sued for partition of the house. The two brothers raised many pleas, one of which was that the house was the family residential house and that, therefore, they were entitled to the benefit of Section 4, Partition Act.

( 3 ) THE trial Court held that the house was dilapidated and could not be called a residential house at all, much less a family residential house. It accordingly rejected the plea under the partition act and decreed the suit for partition.

( 4 ) AFAQ Rasul and his brother appealed and the learned civil Judge of Unnao h