P L D 1961 Dacca 94 (PLP)

AKBAR, J.‑This application raises a short point under section 4 of the Partition Act.

2. The facts which led up to this application are as follows :‑

3. A house in the town of Dacca and some other properties were owned by the petitioner Priya Sankar Sen and his four brothers who were all members of an undivided Hindu joint family. Bhaba Sanker Sen mortgaged the said joint family properties including the house to Dacca Co‑operative Housing Society, hereinafter referred to as the Society. In 1940 the Society filed a suit on the said mortgage and eventually auction- purchased the mortgage properties in execution of the decree obtained by them. In 1943 Priya Sanker Sen filed a title Suit being,T. S. 57 of 1944 claiming 1/5th share in the said properties and for partition. In 1945 the said suit was decreed. On appeal the judgment and decree of the Trial Court was affirmed. In the Second Appeal, the High Court held that Priya Sankar Sen and Bhaba Sankar Sen jointly owned the suit ‑properties and that Priya Sankar Sen had 5/18th share and Bhaba Sankar Sen bad 13/18th share in the said properties and modified the decree of the Court below accordingly.

4. Abdul Wahed Sheik, opposite‑party No. 1, who pur chased the interests of the Society was a defendant in the said title suit of 1944. On 25‑8‑56, the plaintiff Priya Sanker Sen filed an application under section 4 of the Partition Act praying that he may be allowed to purchase 13/18th share of Abdul Wahed in the dwelling house.

5. The learned Subordinate Judge upheld the contention of the opposite party Wahed that the house is not dwelling house within the meaning of section 4 of the Partition Act and hence he dismissed the application.

6. The plaintiff Priya Sankar Sen has obtained this Rule against the said order of the learned Subordinate Judge.

7. The following facts are not in dispute. During the communal disturbances of 1950 the petitioner Priya Sankar Sen migrated to India and occupied the house of the mother of opposite party No. 1 Abdul Wahed in Calcutta. At about the same time Wahed migrated to Pakistan and occupied the petitioner's house at Dacca. There was a talk of exchange of the suit premises with Wahed's property in Calcutta, but the talk ultimately failed: Wahed then purchased 13/18th share of the Society in the suit premises. In the meantime the house of Wahed's mother in Calcutta was acquired by the Government of West Bengal and the petitioner took compensation parable to the tenant and Wahed's claim for compensation was pending. Mr. Chowdhury the learned Advocate for the petitioner, has contended that the house in question is a dwelling house within the meaning of section 4 of the Partition Act. He has argued that occupation of the house by a tenant cannot have the effect of making the house cease to be a dwelling house. In support of his contention, he has relied on the decision in Dulal Chandra Chatterjee v. Gosthabehari Mitra (56 C W N 681). On the other hand, the learned Advocate for opposite party, has contended that in 1950 Priya Sankar Sen left this country for good and hence section 4 of the Partition Act was not applicable to this case. In Dulal Chandra Chatterjee's case, Chakravarti, A. C. J. observed at page 684 as follows:‑ "It has already been held in cases, too numerous to mention, that in order that an application under section 4 (1) of the Partition Act may lie it is not necessary that the co‑sharer owner should be in constant residence at the house. From that position to the position where the house has been let out to tenants is but a short step forward. The creation of a tenancy does not terminate the possibility of the owners of the house returning to its occupation. The tenant may voluntarily give up possession or he may be ejected. What seems to me to be important under section 4 (1) of the Partition Act is that the house concerned should either be actually in use, though not necessarily 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 time. Judged by that test, it appears to me that the mere grant of a tenancy cannot possibly have the effect of making a house, which is otherwise a residential house of the members of the undivided family owning it, cease to be dwelling house."

8. The learned Judge, therefore, held that section 4 (1) would apply to a tenanted dwelling house of an undivided joint -family provided "the creation of tenancy does not terminate the possibility of the owners of the house returning in its occupation. Now, the learned Judge's finding is that the petitioner has left this country for good. The Petitioner does not say a word in his petition about the possibility of his return. The opposite party has stated in his counter‑affidavit that the petitioner has migrated from this country. The petitioner did not file any affidavit‑in‑reply traversing the said allegation. In these circumstances, we hold that the Calcutta decision, on which reliance has been placed by Mr. Chowdhury, really supports the case of the opposite party. We are, therefore, of opinion that the learned Judge has rightly held that the provisions of section 4 (1) are not satisfied and as such the petitioner is not entitled to get any relief in this case. We, therefore, dismiss this application and discharge the Rule but without any order as to costs. BAQUER, J.‑I agree. K. B. A. Rule discharged.