Yogendra Singh and others vs Md. Islam and others

B.N. Agrawal, J.—This application is directed against the order passed by the Learned Subordinate Judge by which he hat allowed the petition under 4 of the Partition Act, 1983 (hereinafter referred to as the ''Act''). Two questions have been raised by the Learned Counsel appearing on behalf of the petitioner in support of this revision petition, Firstly Learned Counsel contended the section 4 of the Act applies to joint family dwelling house alone and to no other house meaning hereby that for invoking section 4 of the Ac it has to be shown that the members of the joint family were/are residing in the dwelling house. In the case in hand according to the defendant no. 1 who filed the application u/s 4 of the Act the property in question was a dwelling house meaning thereby that members of joint family were residing therein whereas according to the plaintiffs petitioners the suit property was not dwelling house of members of the joint family rather the same was let out to the various tenants It is well settled that section 4 of the Act shall have no application to such dwelling house which have been occupied by tenants and the said provision applies only to such dwelling house in which all members of the joint family or some of them are residing. Since the parties were not in agreement the court below was required to decide this question after affording reasonable opportunity to the parties to lead evidence. In my view the court below has committed a serious error of jurisdiction in disposing of the petition u/s 4 of the Act without deciding this controversy which was necessary to be decided before assuming jurisdiction to pass an order u/s 4 of the Act. Therefore the matter requires a remand to the court below for reconsidering the whole matter. Learned Counsel appearing on behalf of the petitioners next contended that after allowing the application u/s 4 of the Act the court below has directed the plaintiffs to sell the share purchased by them for Rs. 15000/- on the ground that the plaintiff had valued the suit at Rs. 15000/-. So far partition suit is concerned I do not think that the plaintiffs were required to give market value of the suit property for the purposes of jurisdiction. According to the express language of Section 4 of the Act the court is required to decide valuation of the property in question after affording reasonable opportunity to the parties to lead evidence on the question of valuation. Therefore the impugned order is not sustainable on this ground as well since no market value of the suit property has been fixed by the court below.

In the result the revision application is allowed, the impugned order is set aside and the court below is directed to dispose of the petition u/s 4 of the Act after giving reasonable opportunity to the parties to lead evidence in support of their respective cases on both questions, i.e. on the question whether Section 4 of the Act shall have application to the case in hand or not and also on the question as to what was the market value of the suit property on the date of filing of the petition u/s 4 of the Act.

In the circumstances of the case I direct that the parties shall bear their own costs.