1. This first appeal under section 96 of the Code of Civil Procedure, 1908 has been preferred by defendant No.1 assailing the judgment and decree dated 14th December, 2001 passed by learned 1st Additional District Judge, Raisen in Civil Suit No. 17-A/2000 partly decreeing the suit of plaintiff-respondent No.1.

2. The facts leading to this first appeal are narrated in detail in para 2 to 10 of the judgment passed by this Court on 10.4.2007 when this first appeal was decided and allowed in part in terms of para 25 of the judgment. Thereafter, appellants who are LRs of defendant No.1 as well as plaintiff respondent No.1 filed review applications which have registered as MCC No. 1393/2007 and MCC No. 1339/2007 respectively. Review application MCC No. 1393/2007 which was filed by legal representatives of defendant No.1 was in regard to certain typographical errors and accordingly the said review application (MCC No. 1393/2007) was allowed on 8.1.2008 and disposed of with a direction mentioned in para 4 of the said order which reads thus:

"4. In this view of the matter, since there is a typographical error in the judgment and the position is not disputed by learned senior counsel for the respondent-plaintiff, it is hereby held that in Khasra No.6, 7, 8, 21, 71/2 and 97 of village Rehma, LRs of defendant No.1 Prabhudayal namely Smt. Saroj Shrivastava and others are having 3/4 share and plaintiff - Smt. Ramsiya is having l/4th share. MCC No. 1393/2007 is, accordingly, allowed and disposed of with no order as to cost."

3. Review application (MCC No. 1339/2007) which was filed by plaintiff Smt. Ramsiya was also allowed since the amended provision of section 6 of Hindu Succession Act, 1956 (in short the 'Act') vis-a-vis to section 23 of the Act was not taken into consideration and the said review application of plaintiff Ramsiya was also allowed and this first appeal

was kept open for a limited purpose only. It would be relevant to quote paras 8, 9 and 10 of the order dated 8.1.2008 passed in the review application which read thus:

"8. This Court while deciding first appeal No. 4512002 files on behalf of LRs of defendant No. 1- Prabhudayal against appellant - Ramsiya, only considered section 23 of the said Act and after testing the case on the anvil of section 23 held that plaintiff cannot ask for partition in the dwelling houses as there is bar in section 23 of the said Act. This Court did not take into consideration that what would be the impact of section 6 of the said Act as amended by Amendment Act of 2005.

I must fairly state that Shri Patel, learned senior counsel for plaintiff, addressed this Court while arguing the above said first appeal in respect to the provisions of section 6 of the Amendment Act of 2005 and, therefore, in view of the Division Bench decision of this Court Jaswantpuri and others (supra), this review application filed on behalf of plaintiff-Ramsiya is hereby allowed and that part of the judgment of First Appeal No. 4512002 holding that plaintiff is not entitled to any share in the dwelling houses of village Rehma and Talapura, is hereby directed to be reheard and the said first appeal be listed for hearing on that limited point only.

9. Accordingly, MCC No. 133912007 is also hereby allowed with no order as to costs.

10. Registry is hereby directed to list FA No. 4512002 for rehearing on a limited point only as indicated hereinabove."

4. In this manner for a limited purpose only that what is the impact of section 6 of the Act as amended by Hindu Succession (Amendment) Act, 2005 (for brevity 'the Amended Act of 2005') on the dwelling houses of Udaipura and Rehma is to be taken into consideration. The appeal on all other points has already been decided on 8.1.2008.

5. The contention of Shri N.K. Patel, learned senior counsel is that section 23 of the Act which deals with special provisions in respect to dwelling house has been omitted from the said Act by Amended Act of 2005 and section 6