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TMI Blog1959 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... (the plaintiff respondent No. 1), Bonbehari (defendant No. 1, who is the respondent No. 2) and Satya Sadhan (father and husband respectively of defendants Nos. 2 and 3, who are respondents Nos. 3 and 4). Sankar Charan (defendant No. 4, who is respondent No. 5) is the son of the plaintiff. He was made a party to the partition suit in his capacity as the purchaser of a certain share in some of the properties included in the partition suit. Kali-pada (defendant No. 5, who is the appellant) is the transferee of the share of defendants Nos. 2 and 3 (respondents No. 3 and 4) in some out of the several properties, which were included in the suit for partition. 3. The property in dispute is C. S. Plot No. 1596, recorded in Khatian No. 183 of Mouz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that question will be dealt with at the time of the final decree." There was Commissioner for partition appointed to effect partition by metes and bounds. In the report submitted by the Commissioner, we find the following observation : "I am not inclined! to disturb the possession of defendant No. 5, the lessee of defendants Nos. 2 and 3, by allotting the portion of the land to the plaintiff by demolishing and removing the structures of defendant No. 5, and which I think would be unjust, unfair and inequitable under the facts and circumstances of the present case. So after considering the convenience and inconvenience of the parties and leaving aside the portion of the land possessed exclusively by defendant No. 5, the lessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse stands, and the disputed plot No. 1596 runs the Union Board Road. 9. It appears from the evidence that on the plot of land to the east of plot No. 1596 there are several structures namely, a granery, a privy, a cowshed and a temple, in which the plaintiff is interested. It also transpires in evidence that somewhere to the north of plot No. 1596 there is a tank (Khirki pukur), which is used by the female members of the plaintiff's household. 10. It further transpires that at the time when plot No. 1596 was acquired by the ancestors of the plaintiff, there was a structure standing on the land. The said structure, at a time, used to be occupied by the servants of Natabar, the brother of Girish, and Natabar did have a Kitchen garden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to, the court of appeal below was satisfied that plot No. 1596 was part of the plaintiff's dwelling house and that the plaintiff always had the intention of retaining it as such. In that view of the matter the Court of appeal below affirmed the order of the trial court, by which plaintiff's application under Section 4 of the Partition Act had been allowed. 15. The propriety of the appellate decision is being disputed in this appeal. 16. Dr. Atul Chandra Gupta, learned Advocate for the appellant, contended that the user of plot No. 1596, as part of the dwelling house 20 or 21 years ago, prior to the filing of the partition suit, was a matter of historical interest only. The disuse of the plot as part of the dwelling house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Partition Act, merely because that he is an owner. Macklin J. expressed the opinion, in a case reported in Bai Fatma v. Gulamnabi Hajibhai that such a person was not so entitled. 20. Nevertheless, a dwelling house does not cease to be a dwelling house merely because of suspension of occupation or, for the matter of that, absence of the owner therefrom or because of occupation or terminable occupation thereof by tenants. What is important under Section 4 of the Partition Act is that the house concerned should either be actually in use, though not in constant occupation by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future date. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reported in AIR1953Cal259 Chakravarti A.C.J. (Das J. concurring) observed as follows : "It may be that if a permanent and irrevocable lease is granted to a third party a question may arise whether the character of the house as a dwelling house, in so far as the owners are concerned, still survives." 24. In our opinion such a permanent settlement would be a material fact to be taken into consideration in coming to the conclusion as to whether it was still then the intention of the owners to utilise the plot, so settled, for the future purposes of their dwelling house. It would depend upon the terms of the settlement as to whether it would! be at all possible to get back the land in the event of a partition. Further complicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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