Judgment :- 1. The following are the questions of law on which notice has been issued by this court in the second appeal: "A. Whether the Courts below were right in their interpretation of the term'dwelling house" occurring in S.4 of the Partition Act to mean not merely the house but also the entire extent of 42 cents even though the house itself is situate in a corner of the property? B. Whether the courts below were justified in holding that 42 cents of land in Calicut City with a lot of vacant space constitutes a single dwelling house to apply S.4 of the Partition Act? C. Whether the Lower Appellate Court was justified in holding that the plaintiffs were bound to contribute 1/4th of the amount due under Ext. B3 to the 1st defendant?" 2. These questions arise out of a suit filed for partition. During the pendency of the suit, under Ext. Al dated 29-8-1972, the rights of the 1st plaintiff were assigned in favour of the 2nd plaintiff. The claim for partition was resisted, on diverse grounds, one being that the 1st defendant should be permitted to purchase the 1st plaintiff's 1/4th share. The claim was based on S.4 of the Partition Act. The evidence on this question relating to the applicability of the provisions of S.4 of the Act, was, however, confined to the testimony of the husband of the 2nd plaintiff and of the 1st defendant. 3. The controversy centering round the section was reflected in the additional issue raised in the case. It was contended that the property involved is about 42 cents in extent, that such a large extent would not come within the term of a dwelling house as referred to in the aforesaid section, that the situation of the two houses in the property, one on the eastern side and another on the west, was such that an area representing the 2nd plaintiff's share could be allotted to him, and that in those circumstances, the claim of the 1st defendant should be disallowed. After referring to the judicial decisions on the point, the trial court took the view that the dwelling house could not be confined to the family house, but would be wide enough to take in the curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house. After referring to the judicial decisions on the point, the trial court took the view that the dwelling house could not be confined to the family house, but would be wide enough to take in the curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house. Applying the principle gatherable from the decisions referred to in the judgment, that court felt that the 1st defendant's claim should be allowed. There were 3 defendants, who between them were entitled to the 3/4share. Only 1/4 share was due to the 2nd plaintiff. A division could not therefore be convenient and would not be conducive to the reasonable occupation of the family house by the defendants. It also observed: "The 2nd plaintiff has not succeeded in showing that there could be a partition of the property into 4 equal shares and one such share could be allotted to her without affecting the convenient enjoyment of the family house by the 1st defendant." In the light of the above conclusion, a preliminary decree, inter alia enabling the 1st defendant to purchase the share of the 2nd plaintiff on payment of the market value of the share, was passed. 4. The 2nd plaintiff's appeal was unsuccessful. A contention that S.4 was not applicable was urged before the appellate court. As the 2nd plaintiff bad come in under Ext. Al only after the institution of the suit by the 1st plaintiff, the suit was not instituted by the transferee-was the argument. That contention did not appeal to that court. The interpretation canvassed for was one which would even render the section nugatory, according to that court. 5. This contention was reiterated in this court also by counsel for the appellant, placing reliance on the Full Bench decision in Sakhawat Ali v. Ali Husain, AIR. 1957 Allahabad 356. The further contention related to the ambit of the expression "dwelling house" referred to in the section. 6. "On the former question, there has been a conflict of judicial opinion. It is not necessary to dwell at length on the divergent views on the interpretation of the section, for, the decisions have been considered elaborately in the decision of the Orissa High Court reported in Alekha Mantri v. Jagabandhu Mantri, AIR. 1971 Orissa 127. 6. "On the former question, there has been a conflict of judicial opinion. It is not necessary to dwell at length on the divergent views on the interpretation of the section, for, the decisions have been considered elaborately in the decision of the Orissa High Court reported in Alekha Mantri v. Jagabandhu Mantri, AIR. 1971 Orissa 127. The High Courts of Calcutta, Patna and Nagpur have taken the view that the section applies to cases where a stranger purchaser figures as a defendant in a suit for partition. (In the present case, it may be noted that the 2nd plaintiff is the purchaser from the 1st plaintiff himself, pending the suit.) The view expressed in the Full Bench decision of the Allahabad High Court already referred to and the Madras decisions, were relied upon in AIR. 1971 Orissa 127. The Full Bench decision of the Allahabad High Court, makes a reference to an earlier decision of that Court on the point in Ramzan Baksh v. Nizamuddin, AIR. 1956 Allahabad 687. The court observed: "It is a well established principle that a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant; and it has been held that if a defendant transferee in a suit for partition claims a share in the dwelling-house he can be treated as a plaintiff for the purposes of S.4." 7. This decision, though referred to, was not overruled by the Full Bench, which observed: "The correctness of that decision is not challenged in this reference." The Orissa High Court took the view that S.4 of the Act must be given a wider interpretation, having regard to the object underlying the provisions of enactment, namely, to prevent an outsider transferee of a share in the family house from forcing his way into the dwelling house in which other members of the family had been living. I am in agreement with the view so expressed by the Orissa High Court. In a later decision in the same year, in Ahmad Khan v. Shaik Mijar, AIR. 1971 Orissa 284, a judgment rendered by D. K. Patra and R. B. Misra, JJ., the view expressed in AIR. 1971 Orissa 127 supra has been adopted and followed. In view of the above legal position, I reject the first contention urged by counsel for the appellant. 8. 1971 Orissa 284, a judgment rendered by D. K. Patra and R. B. Misra, JJ., the view expressed in AIR. 1971 Orissa 127 supra has been adopted and followed. In view of the above legal position, I reject the first contention urged by counsel for the appellant. 8. On the second aspect, the courts below have adverted to the relevant legal principles, the nature of the property, structures and improvements situate therein, the number of sharers, and the concept of a dwelling house as judicially interpreted in the context of S.4. It is on a detailed consideration of such relevant factors, that they allowed the Ist defendant to purchase the share of the transferee 2nd plaintiff. The absence of evidence to detract the applicability of S.4 of the Act has been particularly noted by the trial court. The question whether a particular property would constitute a dwelling house is essentially a question of fact. The available evidence has been considered by both courts, bearing in mind the correct legal principles applicable to the situation. I am in agreement with the view so taken by them. Even if a different view is possible, that is not sufficient for upsetting the concurrent findings on this question entered by the courts below. In that view of the matter this contention too has to be rejected. 9. In the result the second appeal fails and it is accordingly dismissed with costs.