A house which is in occupation of tenants or which has been mortgaged with possession to third party does not come within the ambit of Section 4 of the Partition Act.

G.P. Mathur, J.

1. The petitioner Smt Prabhawati Devi filed Original Suit No. 53 of 1977 for partition of her 2/5th share in the property in dispute situate in Mohalla Khodaipura in Ghazipur which was decreed on 4-9-1981 by the Civil Judge Ghazipur and a preliminary decree for partition was passed. Aggrieved by the judgment and decree Rahat Ullah filed Civil Appeal No. 4 of 1982 and Syed Zainul Nabi filed Civil Appeal No. 11 of 1982 which were both dismissed by 1st Additional District Judge on 1-5-1986. Thereafter, proceedings for preparation of final decree were commenced wherein Rahat Ullah moved an application under Section 4 of the Partition Act. This application was allowed by the Civil Judge by the judgment and order dated 20-11-1987 and it was directed that Rahat Ullah may take necessary steps for ascertaining the valuation of plaintiff's 2/5th share and plaintiff-Smt. Prabhawati Devi was directed to execute a sale- deed of her share in favour of the applicant. This order was challenged by the plaintiff Smt. Prabhawati Devi by filing a Revision which was dismissed by 2nd Additional District Judge on 1-2-1991. As the second Revision is barred on account of U.P. Amendment to Section 115, CPC, the plaintiff has preferred the present writ petition under Article 226 of the Constitution and has sought quashing of the orders dated 20-1 l-1987and 1-2-1991.

2. Sri R.N. Singh, learned Senior Counsel for the petitioner has submitted that the impugned orders wherein the plaintiff has been directed to execute a sale-deed of her 2/5th share in favour of Rahat Ullah is illegal as his plea which is based upon Section 4 of Partition Act, has not been examined on facts by any Court. It is urged that in order to attract Section 4 of Partition Act, it is necessary that a share in a dwelling house belonging to an un divided family should have been transferred to a person who is not a member of such family but in the present case a share in a dwelling house was not transferred as the house in dispute had been mortgaged and was also in occupation of a tenant. Dr. R.G. Padia, learned Senior Counsel for the respondent has, on the other hand, urged that in view of the earlier judgment and order dated 1-5-1986 of 1st Additional District Judge, it is not open to the petitioner to raise such a contention. It is urged that a finding has already been recorded in the aforesaid judgment and order that the respondent No. 3 is entitled to the benefit of Section 4 of the Partition Act which finding having become final, the plea of the petitioner is barred by principles of resjudicata.

O.S. No. 53 of 1977 was filed by Smt. Prabhawati Devi wherein Rahat Ullah was arrayed as defendant No. 1, Smt. Hamidun Bibi was arrayed as defendant No. 3 and was shown as defendant second set and Gayaram, Tribhuvandas, Ghulam Husain and Bardrinath were arrayed as defendants No. 4 to 7 and were shown as defendants third set. During pendency of the Suit Tribhuvandas and Ghulam Husain died and their heirs were brought on record. The relief claimed in the suit was for partition of 2/5th share of the plaintiff and further a declaration that the defendant second set had no right or title over house No. 88 (which was part of the property in suit) and if in the opinion of the Court, defendant second set had a title over the same, the plaintiff may be allowed to get the same redeemed on payment of due money and she may be given actual possession thereof. The plaintiff had also claimed relief for recovery of Rs. 682a as rent and damages for her share in the property in suit which was in the tenancy of defendants No. 4 to 7. The suit was con tested by the defendants first and second set and not by other defendants. Learned Civil Judge by the judgment and decree dated 4-9-1981 decreed the suit in toto. Against the decree of the trial Court two appeals were preferred. Civil Appeal No. 11 of 1982was filed by Syed Ziaul Nabi and Civil Appeal No. 4 of 1982 was filed by Rahat Ullah. Bo