JUDGMENT N.N. Mithal, J.
1. In this second appeal by the defendants, only a very short point is involved; as to whether the suit property is family dwelling house or not? The plaintiff purchased in Court auction 2/3rd share in the property in dispute and filed a suit for partition of his share. The suit was contested by the defendants on the ground that it was a family dwelling house and, therefore under Section 4 of the Partition Act, the same cannot be partitioned. One of the defendants offered to purchase the share of the plaintiff at the value assessed by the Court. The plaintiff contended that it was not a dwelling house and got a commission issued for local inspection whose report is on the record. The trial Court as well as the lower appellate Court have held that the house was not used for residence and, therefore, it was not a family dwelling house within the meaning of Section 4 of the Partition Act. Agrieved, the defendants have come up in second appeal.
2. From the evidence, it appears that in execution of the money decree in O. S. No. 173 of 1962, Ram Narain versus Ganga Prasad and others, 2/3rd share of the defendant in the property was put up for auction and was purchased by the plaintiff decree-holder, in respect of which the sale certificate was issued to him on 14-3-1966. In the details of the property given in the sale certificate, it was mentioned that 2/3rd portion of Kuchcha-pukka house having boundaries detailed therein had been sold. A Dakhalnama was also issued in pursuance of this sale certificate which is paper Number 25-C on the record, in the Dakhal-nama the details of the constructions then existing on the spot have been mentioned along with the boundaries of the property. The commission was issued at the instance of the plaintiff whose repor is 14-C along with map 15-C prepared by him. Besides this, the plaintiff examined himself and was supported by one witness. Similarly the defendant has examined himself as D.W. 1 and D.W. 2 was examined in his support. This is the entire evidence on the record. The question that comes up for consideration is whether on the evidence on record, it can be said that the property in dispute was a family dwelling house and if so whether it was covered by the provisions of Section 4 of the partition Act.
3. The defendants claim to be entitled to the benefit of Section 4 of the Partition Act (hereinafter referred to as the Act). The section reads as under:
"Partition suit by transferee of share in dwelling house :
(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a share holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such share holder and may give all necessary and proper directions in that behalf.
(2) If in any case described in Sub-section (1) two or more members of the family being such share holders severally, undertake to buy such share, the court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section."
4. Before this section can apply, it would be necessary that there should be a dwelling house which must belong to an undivided family and a share thereof must have ' been transferred to a transferee outside the family. Under these circumstances if the transferee files a suit for partition and any of the owners of the house is prepared to purchase the share of the stranger then, the share so transferred to the stranger may be sold, by the Court to such shareholder offering to purchase it, instead of ordering actual partition of the property. In the present case, the appellants had conveyed their willingness to purchase the share of the stranger in the written statement itself. The question, however, is whether the house in question "is a dwelling house belonging to an undivided family".
5. Incidentally it has also been urged that a sale in a Court auction does not amount to transfer within the meaning of Section 4 of the Partition Act as the same was not a voluntary act of the judgment-debtor. This, however, need not detain us any longer because it has been repeatedly held by the various High Courts that a transfer within the meaning of Section 4 of the Act merely means change of ownership from one to another and it includes transfer inter-vivos as also involuntary transfers by operation of law, i.e., under the authority of the Court. Therefore, even if the respondent had purchased the house in a Court auction it will yet amount to a transfer of property for the purposes of Section 4 of the Act.
6. The parties are seriously at issue whether or not the property in question "is a dwelling house belonging to an undivided family". On the basis of the spot inspections as detailed in the Amin's report the Courts below have found that the property in suit was not a dwelling house. According to the plaint-allegations the property was a Kuchcha-Pucca house lying in ruins in which the defendants had 1/3rd share while the remaining 2/3rd share had been purchased by the plaintiffs in auction sale in pursuance of an execution of money decree by the Court. In the written statement a plea was taken that the house in question was a dwelling house and it was no more a Khandhar (in ruins). It was also said that the house in question, belonged to the undivided family and the plaintiffs were strangers for the purpose of Section 4 of the Act. According to the plaintiff's statement the property in question was never a dwelling house and was being used for the purpose of tethering cattle only and that the defendants had their residence at another place. It was also stated that there were only two Chappars in the disputed property under which cattle are being tethered. In cross-examination it has been stated that the plaintiff remembered things for the past 20-25 years and has been corroborated by Abdullah P. W. 2 who was 60 years old at the time of his deposition. According to him also the property in suit was a ruin in which cattle were being tethered and was never used for the purpose of residence. It was also stated that Kali Prasad, the common ancestor of the defendants used to live in a separate house and the property has been lying in ruins for the last about 20-25 years. He has stated that there are only two Osaras in which cattle were being tethered. There is a small latrine which is in a dilapidated condition. From the above facts and the report of the Commissioner it is clear that at present the property in question consists of dilapidated boundary walla, two newly thatched rooms and dilapidated antia, all within an enclosure having its main door towards the west, This much is admitted by the defendants also that the eastern and northern walls of the disputed property belong to the owners of the adjacent houses which leaves only two walls one towards west and the other towards south which are admittedly Kuchcha and Pukka. According to the Commissioner at the time of his visit nothing was found in the house which would be suggestive of the fact that somebody was residing therein. On the contrary what he found in the thatched rooms was that cattle were tethered there and the latrine and antia both lying in a dilapidated condition. In view of this situation both the Courts below have recorded a finding that the property in suit was not a dwelling house of the defendants and as such they could not seek any aid from Section 4 of the Act. The Courts below have also considered the fact that the defendants admittedly have another house where they reside although it is not clear as to whether that other house is at a distance away from the disputed property or not.
7. In the light of the above facts which are concluded by findings of facts, we have to consider as to whether in law it constituted a dwelling house. The words "dwelling house" has not been defined in the Act. In Chambers' 20th Century Dictionary words "dwelling house" have been defined as "a house used as a dwelling, in distinction from a place of business or other building.'' The word "dwell" has also been defined there as, "to abide: to reside; to remain: to rest the attention: to continue long: to inhabit." Similarly in Stroud's Judicial Dictionary Fourth Edition Volume 2, paragraph 858 "dwelling house" has been defined as: "A dwelling house" is obviously a house with the superadded requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return. "In Words & Phrases Legally Defined, II Edition Volume 2, 127 the term "dwelling" implies "a building used or capable of being used as residence by one or more families and provided with all necessary parts and appliances such as floors, windows, stair-cases etc. A dwelling house means a building used or constructed or addicted to be used partly or wholly for human habitation".
8. Thus from the above definitions, it would be seen that for a house to be a dwelling house, it is necessary that it must be intimately connected with human habitation. Any building which is used entirely for commercial purpose cannot be a dwelling house but if a stable or a cow-shed is part of a building which is used primarily for human habitation then such portion of the building which is being used as cowshed or the stable can also be said to be a part of the dwelling house. In Fatima Begam v. Sakina Begam ((1875) ILR 1 All 51) a Division Bench of this Court had occasion to consider "dwelling place" which cannot be said to be very much different from a dwelling house. The Court held that "the words dwelling or residence are synonymous with domicile or home, and mean that place where a person has his fixed permanent home, to which, whenever he is absent, he has the intention of returning". This general conception of a dwelling house, however, came in for consideration in a variety of differing circumstances and meaning attached to it was amplified a little by taking liberal view of the term. In Nil Kamal v. Kamakshya Charan (AIR 1928 Cal 539) it was said that the term "house" embraces not merely the structure or building but includes also adjacent buildings, curtilages, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house but not merely that which is only for the personal use and convenient use of the occupier. It includes the land on which the structure of the dwelling house stands, and whether a particular plot of land is or is not necessary to the enjoyment of a house is to be determined on the evidence."
9. Similarly in Gour Chand Basak v. Khirode Nath (AIR 1948 Cal 73) the property in dispute was adjacent to the main dwelling house of the co-owners and the disputed property was used by the servants, darwans, karmacharis and guests of the family and one of the rooms was used as Baithakkhana for the junior members of the family. None of the members of the family used to sleep in any of the structures standing on that property. In these circumstances it was held that merely because no one sleeps during the night in the premises in dispute it cannot be said not to be a family dwelling house if it was so intimately connected with the adjoining main building and was necessary for the more convenient and proper use of the main residential house. The facts of that case were entirely different and it appears that apart from the main residential house of the owner there was another annexe in which houses of the Durbans, servants etc. and the Baithakkhana existed. Naturally the said premises could not be said to be distinct or different from the main residential house and therefore each portion of the entire complex was deemed to be dwelling house of the owners.
10. In Dulal Chandra v. Gosthabehari (AIR 1953 Cal 259) a Division Bench of that Court held: "to constitute a dwelling house what seemed to be important under Section 4(1) of the Act is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners of 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, 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 a dwelling house". Here again the emphasis was more on the user of the property as a residential house although such a house may not be used by the owners of the house themselves but by the tenants. By use of the building by tenants the character of the building as dwelling house did not come to an end. To the same effect is the case of Kali Pada Ghosh v. Tulsidas Dutt (AIR I960 Cal 467) where a Division Bench of the Calcutta High Court held thus: "it was not necessary for the members of the family or for one or more of them physically to occupy a house so as to make it a dwelling house. It is enough if the house or its appurtenances are used for the use or accommodation of servants, officers or guests of the family.
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."
11. Elaborating on the same there is the case of Manick Lal Singh v. Gouri Shanker Shah (AIR 1968 Cal 245) wherein their Lordships of that Court held as under :
"In determining whether a house is a dwelling house within the meaning of those words in the section it has to be first found out whether the house in question was used by the members of the family for residential purpose. Secondly it must be remembered that a dwelling house would include not merely the structure where the members of the family actually reside or used to reside but also all appurtenants such as a courtyard used by the members and even other structures, if there are any, as for example a kitchen or a cowshed or a shed for garage provided they are or were used by the members of the family as parts of their residential house. Finally the question will also have to be determined with reference to partition taking into consideration the equities in partition that is to say whether the portion of the house which does not come within the ambit of the word "dwelling house" is so small that it would be convenient to include that portion also in the dwelling house".
12. From the consideration of the above cases the substance is that the connotation that a dwelling house is different from a mere residence or a mere house in which one finds oneself for a temporary or small period. A dwelling house includes a sense of permanency, a sense of attachment and a sense of surrounding which would permit a person to say that this house is his home. A man can have more than one home. He could also have rooms at several places and with regard to each of them he can say that it is more than a mere house or a mere residence. That sense of belonging and the right to use it as a dwelling house is always attached to it. May be that he may be living outside yet in his mind there is a feeling that he can go to that house and that he had a right to reside therein, If these are missing then it is difficult to say that the house would be a dwelling house in the true sense of the word.
13. It is apparent, from the consideration of these cases that for the application of Section 4 of the Act the building must have some nexus or connection with residential user of the same. If that material nexus is itself wanting then certainly the property cannot be said to be a dwelling house so as to attract the provisions of Section 4 of the Act. Applying these principles to the facts of the present case we find that the property in question consists of only two thatched rooms and one dilapidated latrine and Antia. The thatched rooms are being used for tethering cattle. The defendants have another residential house in the same town. In these circumstances it is difficult to hold that it was being used for residential purpose or for any purpose connected with residence.
14. It was submitted by the learned counsel for the appellants that even though at present the building may not be used for residential purpose but if once upon ft time it was a residential house it will still retain its character as dwelling house for, the purpose of Section 4 of the Act. He further submitted that once it is proved that there was a dwelling house in existence even at some distant past, the burden will then lie on the plaintiff to prove that the property had ceased to be a dwelling house. In this connection he has referred to the case of Kalyan Mal Rajmal v. Jaggadhish Prasad Kisanlal (AIR 1953 Nag 130) wherein it was held that the burden lies on the plaintiff to prove that the house had ceased to be a dwelling house on the date of the acquisition of title and right to possession of his share of the house. However, the facts of that case were quite different. In that case it was admitted by the plaintiff that the house was a dwelling house of the family of the defendants and that the defendants did not possess any other house for their dwelling. It was also in evidence that when the defendants moved out of the house it was let out to the tenant and thereafter there was no evidence to show that the house ceased to be a dwelling house. It would thus be found that the building which was in dispute still existed and only its mode of user had changed from that of an occupation by the owners to its user by the tenant. In these circumstances the Court had held that the burden rested on the plaintiff to prove that the property had ceased to be dwelling house and, in my opinion, rightly so. In the instant case, on the other hand, it is not at all admitted by the plaintiff that the property in question was at any time a dwelling house of the defendants or that they ever resided in these premises. The Nagpur case is, therefore, clearly distinguishable. The learned counsel for the appellants also referred to the case of Kali Pada Ash v. Tagar Bala Dasi (AIR 1969 Pata 270) wherein it was held that mere non-occupation of the house for sometime by the members of the family will not be sufficient indication of their abandoning the intention of keeping the house as dwelling house, more particularly where such house is admittedly ancestral dwelling house." Here again it was admitted that the house was ancestral dwelling house and the only question was whether merely on the basis of non-occupation of the house by the members of the family an inference could be drawn that they had abandoned the idea of using it as a dwelling house. The position in the present case is not the same as in the Patna case and the two are therefore, clearly distinguishable.
15. The learned counsel for the appellants then argued that even when the old structures of the dwelling house no longer existed yet the nature of the land still continued to be that of a dwelling house as the site also should be considered as part of the dwelling house itself. In this connection he referred to the case of Sunil Kumar v. Provash Chandra (AIR 1969 Cal 88) where by placing reliance on Nil Kamal v. Kamakshya Charan (AIR 1928 Cal 539) (supra) it was held that the mere fact that the structures on the disputed land, which was once the site of the family dwelling house of the parties, had disappeared, would not itself, be conclusive on the point, whether it had ceased to be a dwelling house of the family.
16. In the present case, though it is true that at present the disputed property consists of some open land except two thatched rooms and some other small structures the principle laid down in the above case cannot be applied to the facts of the present case for the simple reason that neither it is admitted that once upon a time the family dwelling house existed on this land and secondly in that case it was merely an open piece of land when the suit was filed and it was left for the Court to presume, on the evidence of the parties, as to whether the parties intended to use the site as family dwelling house or not. In fact the family dwelling house in the above case had been requisitioned by the army authorities during the Second World War and as the same had become dilapidated it was razed to the ground by the army authorities. When the property was derequisitioned and was handed back to its owners it was in the shape of an open piece of land. Certain co-sharers had made transfers of their share in the property in which clear recitals were made that the transfer was being made -for the purpose of raising residential house. It was on a consideration of all these circumstances that the Court had come to the conclusion that the parties had not abandoned the idea of using the site of what was once their dwelling house, as a dwelling house. That circumstance also is not present in this case. The defendants have tried to prove that one of the two thatched rooms was being used for residential purpose by their uncle. No such suggestion was given to the plaintiffs while P. W. 1 was in the witness-box. Apart from this, the uncle, who is alleged to have resided in one of the rooms has also not been examined. The Commissioner's report clearly shows that none was residing in any of the thatched rooms and even no article of the daily use was found in any of the rooms. In the face of these facts it is difficult to believe that any portion of the property was being used for residential purpose. The Courts below have given a clear finding that the premises in dispute was not a dwelling house and I find that there is sufficient material on the record to support such a conclusion. In these circumstances it is difficult for me to take a different view of the matter.
17. In the result, I find no merit in this appeal which is accordingly dismissed with costs.