ORDER 1. This second appeal arises from an appellate order setting aside an order of sale passed by the trial Court under Section 4 of the Partition Act. 2. Laxmiprasad brought a suit for partition and separate possession of joint family property against Uttamchand. A preliminary decree was passed declaring the share of Laxman Prasad being ½ and that of Uttamchand being ½. A Commissioner was appointed. He proposed partition by metes and bounds, which was accepted by the trial Court. Laxman Prasad's objection that the partition was not fair, was rejected by the trial Court. He took an appeal which was allowed and the case was sent back to the trial Court to consider Laxman Prasad's objection. In the meanwhile Uttamchand sold the entire suit house to Babulal (respondent 1 herein) and put him in possession. 3. In final decree proceedings, on Laxman Prasad's application, Babulal was substituted for Uttamchand (vide Order dated 26 April 1960). Babulal then participated in the proceedings from that very stage. 4. Then Laxman Prasad further applied under Section 4 of the Partition Act (hereinafter called the Act) undertaking to purchase the share of the transferee Babulal, which was only half in the suit house as declared in the preliminary decree for partition. This application was resisted by Babulal who further alleged that he had incurred expenses of Rs. 500/- in repairing it and further expenses in getting the house fitted with electricity. He alleged that the present market value of his (Babulal's) share was Rs. 2,000/- so that in case it was found that the applicant (Laxman Prasad) was entitled to purchase Babulal's half share of the house, the former be ordered to pay Rs. 2,000/- to the latter. It was admitted that Babulal's share was only half. 5. The trial Court allowed Laxman Prasad's application. It found that the suit house was a dwelling house within the meaning of Section 4 of the Partition Act; that Laxman Prasad was entitled to make the application; and that he was entitled to purchase Babulal's share for Rs. 850/- i.e., half of the price that Babulal paid to Uttamchand. Final decree was passed. 6. It found that the suit house was a dwelling house within the meaning of Section 4 of the Partition Act; that Laxman Prasad was entitled to make the application; and that he was entitled to purchase Babulal's share for Rs. 850/- i.e., half of the price that Babulal paid to Uttamchand. Final decree was passed. 6. Babulal took an appeal, which has been allowed by the Additional District Judge, Hoshangabad, holding that Laxman Prasad's application under Section 4 of the Partition Act was not competent because it could lie only when the transferee sued for partition, but here, the plaintiff is not the transferee, 7. Aggrieved by that judgment, the plaintiff has come up in second appeal. 8. A preliminary objection is raised by Shri Sapre, learned counsel for Babulal respondent, that this second appeal is not maintainable inasmuch as the order under appeal has set aside the sale so that it is not a decree within the meaning of Section 8 of the Act. I see no merit in the objection. Since the trial Court made an order for sale under Section 4 of the Act, by virtue of Section 8, the order must be deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure. Once an order is by fiction brought within the ambit of Section 2 (d) Civil Procedure Code (just as orders under Sections 47 and 144, Civil Procedure Code) all its incidents with regard to appeals attach to it; it at once becomes subject to an appeal under Section 96 and a second appeal under Section 100 of the Code. This will be irrespective of whether the order of the trial Court is upheld, modified or reversed by the first appeal Court. This was also the view taken in Satyabhama V. Jatindra Mohan AIR 1929 Cal 269. The preliminary objection is rejected. 9. I must first consider whether the house in question is a dwelling home within the meaning of section 4 of the Act. It is not denied by Shri Sapre that the house is a residential accommodation and is habitable; the argument is that since it is in the occupation of tenants at the moment, it is not a dwelling house. I must first consider whether the house in question is a dwelling home within the meaning of section 4 of the Act. It is not denied by Shri Sapre that the house is a residential accommodation and is habitable; the argument is that since it is in the occupation of tenants at the moment, it is not a dwelling house. In my opinion, the criterion is not whether the house is actually occupied for residential purposes by the applicant who claims partition under Section 4 of the Act. The house concerned should either be actually in use, though not constant use, as a residential house by its owner or that it should be possible for them to return to its occupation at some future date. This view finds support in Kalipada Vs. Tulsidas AIR 1960 Cal 467 , Dulal Chandra Chatterjee Vs. Gothabehari Mitra ILR (1954) 1 Cal 384, Bhabani Vs. Akshay Kumar AIR 1955 Orrissa 143. Sushila Vs. J.B. Baral AIR 1956 Orissa 56, In the present case, both the Courts below have held that it is a dwelling house. That finding is affirmed. 10. Adverting now to the real question which has been hotly debated before me, I am of the opinion that Laxman Prasad is entitled to purchase Babulal's interest in the house. At this stage, it is not disputed that Babulal's share in the house is only half. It is the language of Section 4 of the Act on which the transferee builds up his contention. Sub-section (1) of Section 4, reads thus "Where a share of 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 undertakes 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”. (Underlined-italics-by me) The debate centers round the expression "and such transferee sues for partition". (Underlined-italics-by me) The debate centers round the expression "and such transferee sues for partition". There are decisions in which, on literal interpretation of these words, it was held that one of the necessary ingredients for the application of Section is that it is the transferee who should sue for partition; to put it differently, if the transferee does not sue for partition, a member of the family, although he is a share-holder, and even though the transferee is a stranger to the family, has no right to enforce sale of the latter's share. The reasoning in those decisions is patent enough. The expression "and such transferee sues for partition" seems to indicate prima facie that the transferee must be the plaintiff and it is when he claims partition that the right in the defendant member of the family accrues to enforce sale of the transferee's share. See Sir Muthangi Butchi Ramayya Vs. Guralla Venkata Subbrao and others AIR 1950 Mad. 214 , Banchhanidhi Vs. Balaram and others AIR 1951 Orrissa 180, Ramzan Baksh and another Vs, Nizammuddin and others AIR 1956 All 687 , and Sukhawat Ali Vs. Ali Hussain and others AIR 1957 All. 356 (FB). For reason to be presently stated, I am unable to share that view. 11. As I read Section 4 of the Partition Act, the transferee "sues for partition" not only when he claims partition by a suit against other share holders, but also when he manages to occupy a part of the dwelling house and forces the other share holder to take legal action for partition by metes and bounds, or when he takes active part in the partition proceedings in order to get his share separated by metes and bounds. In forming that view, the first consideration which has weighed with me is that the right conferred under Section 4 of the Act is so to say a right of pre-emption; the whole purpose behind the Section is to prevent intrusion by strangers into the dwelling house of an undivided family. That right cannot be frustrated merely by the transferee some how forcing himself into the dwelling house, thereby driving the other co-owners to file a suit against him. In such a situation, if a co-owner has to bring a suit for partition and the transferee participles in it, it must be said that the transferee sues for partition. That right cannot be frustrated merely by the transferee some how forcing himself into the dwelling house, thereby driving the other co-owners to file a suit against him. In such a situation, if a co-owner has to bring a suit for partition and the transferee participles in it, it must be said that the transferee sues for partition. Secondly, this liberal interpretation of Section 4 does not either disregard or sacrifice the terms of the Section for the sake of equity. The word "sue" is defined in Stroud's Judicial Dictionary thus: " These words 'to sue' may be applied indifferently either to the defendant or the plaintiff ......and the words 'to sue' not only signify 'to prosecute' but also 'to defend' or to do something which the law requires for the better prosecution or defence of the 'cause'." There is no reason not to apply this extended meaning to the word "sue" as employed in Section 4 of the Partition Act, when it befits the purpose for which it is enacted, and when the expression is not specifically defined in the Act. Thirdly, it is settled law that in a suit for partition, the parties to the suit are in the position of counter-claimants so that each of them is the plaintiff and each of them is the defendant vis a vis the other party. See for instance Haradhone Haldar Vs. Usha Charan AIR 1955 Cal 292 . Shri Sapre's contention is that if the legislature had intended to give that right to the plaintiff share holder, it should have been sufficient to use the expression "in a suit for partition", but not the restriction language "and such transferee sues for partition". This argument appeals at the first sight, but when the language of the Section and its purpose are closely examined, effect cannot be given to that contention. The following observations in Satyabhama De Vs. Jatindra Mohan Deb AIR 1929 Cal 269, may be usefully quoted here: "Section 4, Partition Act, is a logical sequel of or corollary to Section 44, T.P. Act. The latter Act denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dwelling house; specially of small dimensions, would divide it into unsuitable parcels and may in some cases introduce undesirable neighbours. The latter Act denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dwelling house; specially of small dimensions, would divide it into unsuitable parcels and may in some cases introduce undesirable neighbours. The Partition Act of 1893 accordingly came to the rescue of the members of an undivided family and gave them the fight to purchase the shares obtained by strangers of the family. It is possible that if two persons outside the family buy two shares of the members of the family and one of them brings a suit for partition, making the other a defendant and if his right to purchase the share of the dwelling house fails on any account, the stranger defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is certainly not what the Legislature intended and we must try to put a reasonable construction on the acts of the Legislature". The same view was taken in Sheodhar Prasad Singh Vs. Kishun Prasad AIR 1941 Pat 4, and Abu Isu Thakur Vs. Dinabandhu Banik AIR 1947 Cwl 426. My view finds further support in Laxman Borikar Vs. Mst. Lahana Bai 21 MPLC 298 = ILR 1937 Nag 73, where Stone, C.J., liberally construed the word "sues". 12. As stated above, in the course of final decree proceedings, when Babulal purchaser was substituted for Uttamchand (defendant), the following order was passed: " .........Purchaser Babulal is present today. He has no objection to being substituted in place of defendant Uttamchand from today. The application is, therefore, allowed. "In view of the above orders, there is no necessity for the purchaser Babulal to file a written statement to the plaint. He is directed to file objection, if any, to the appointment and report of the Commissioner in the final decree proceedings as well as reply to the objection of the applicant which has been taken by him against the report of the Commissioner. He is not ready with these today and requests for time. Allowed, Case for 29-4-60". Thereafter, Babulal not only took part in the proceedings, but also accepted the report of the Commissioner. He is not ready with these today and requests for time. Allowed, Case for 29-4-60". Thereafter, Babulal not only took part in the proceedings, but also accepted the report of the Commissioner. In his reply filed in the trial Court on 29 April 1960, he says: (2) Para 2 of the objection is denied. The Commissioner has partitioned the premises equitably and no such passage as has been claimed is either necessary or proper. (3) Para 3 of the objection is denied. It is not tenable. If permitted it will be a nuisance to both the joint owners. It is likely to embarrass them in peaceful enjoyment of the house. (4) Para 4 the objection is denied. On actual division each co-sharer has to convert his share to his personal use according to his convenience...... (6) It is further submitted that he accepts the report of the Commissioner. He was also present when the Court inspected the spot on 12-4-60 and the inspection note was recorded. He accepts the report after such modification as the Court may deem fit to make for the beneficial enjoyment of the house". In view of this statement of Babulal, it must be held that he actually participated in proceedings for partition by metes and bounds and was keen to have such partition effected. He therefore "sued" for partition within the meaning of Section 4 of the Act and Laxmanprasad had the right to purchase the former's share. 13. The facts of the present case' show that undoubtedly Babulal must be said to have sued for partition even according to the meaning given to that expression in Laxman Borikar (supra). 14. It now remains to determine the value of Babulal's share. Shri Sapre is right that it is not the price which the transferee pays to the transferor share-holder which is the value for the purposes of Section 4; it is indeed the market price to which the transferee is entitled. Now, in the present case, an issue was framed and evidence of the parties was recorded. Babulal said that the market value of the house was about Rs. 2,500/-. His witnesses, Mansab Ali and Mukundilal also say that the value of the house would be Rs. 2,000/- or Rs. 2,500/-. No basis was given either by Babulal or his witnesses for stating that particular valuation at random. Since Babulal purchased the house for Rs. Babulal said that the market value of the house was about Rs. 2,500/-. His witnesses, Mansab Ali and Mukundilal also say that the value of the house would be Rs. 2,000/- or Rs. 2,500/-. No basis was given either by Babulal or his witnesses for stating that particular valuation at random. Since Babulal purchased the house for Rs. 1,700/- during the pendency of the litigation and after passing of the preliminary decree, Rs. 850/- was assessed as the value of ½ share, the trial Court accepted that as the basis, which, in my opinion, was quite fair and reasonable having regard to the peculiar facts and circumstances. Shri Sapre relies on Sumitra Vs. Dhannu 37 MPLC 69 = AIR 1952 Nag 193. That case is clearly distinguishable inasmuch as the property there had been purchased "several years ago". 15. The appeal is allowed. The judgment and order passed by the appellate Court are set aside and those passed by the trial Court are restored. Parties shall bear their own costs throughout.