JUDGMENT L. MOHAPATRA, J. : This appeal is directed against the order dated 4.4.2007 passed by the learned Civil Judge (Senior Divi¬sion), Ist Court, Cuttack in I.A. No.46 of 2007 dismissing an application filed under Order 39, Rules 1 and 2 C.P.C. 2. The appellant is the plaintiff before the trial Court. She has filed C.S. No.38 of 2007 for declaration of her preferen¬tial right to purchase to share of defendants 1 to 5 on the ground that the alienation made by the said defendants is ille¬gal, invalid, void and not binding on the appellant. The case of the plaintiff-appellant is that she and defendants 1 to 13 are the descendants of common ancestor Late Hara Chand Das. The property described in schedule ‘P’ of the plaint is the self acquired property of Late Hara Chand Das which had been purchased by him under a registered sale deed dated 13.2.1946 from one Sudhakar Das. Late Hara Chand Das was residing there after con¬structing a house. Late Hara Chand Das died after Hindu Succes¬sion Act came into force and, therefore, the plaintiff is enti¬tled to 1/8th share over ‘B’ schedule property being a Class-I successor and defendants 1 to 5 also have 1/8th share each. The further case of the plaintiff-appellant is that defendant No.6 is the natural born son of Late Hara Chand Das and was adopted by Golak Bihari Das. The said defendant No.6 obtained a registered power of attorney from defendants 1 to 5 and executed a regis¬tered sale deed on 19.10.2006 in favour of defendant No.14 in respect of 'B' schedule property. Since defendant No. 14 is trying to take possession of the said property by demolishing the existing dwelling house standing over the same, the suit was filed for the above relief and along with the suit an application was filed under Order 39, Rules 1 and 2 C.P.C. for grant of temporary injunction restraining the defendant No.14 from coming upon the suit schedule property or making any intrusion in the peaceful possession of the plaintiff or in any way causing damage or demolition to any part of the dwelling house. An objection was filed by the said defendant No.14 stating therein that the suit schedule property is not the joint family dwelling house and the plaintiff’s family never stayed in the suit property. An objection was filed by the said defendant No.14 stating therein that the suit schedule property is not the joint family dwelling house and the plaintiff’s family never stayed in the suit property. It was admitted by defendant No.14 that the suit schedule property was never partitioned by metes and bounds but Section 44 of the Transfer of Property Act does not come into operation as there is no dwelling house at all. The defendant No.14 and her husband are doctors and their dwelling house stands in front of the suit property from the year 1994. It was also contended in the objec¬tion that on the date of execution of the sale deed, defendant No.14 had been delivered with possession of the suit property and she being a bona fide purchaser for value, has exercised her absolute right over the suit property from the date of purchase by constructing a boundary wall besides demolishing the dilapi¬dated structures within a fortnight from the date of sale. Ac¬cording to defendant No.14, there was no structure to be used as a dwelling house at all existing over the suit land and as such, the prayer for injunction should be refused. The trial Court in the impugned order observed that on the date of sale there was a dilapidated house not fit for use and the same was lying vacant for 4 to 5 years prior to sale and was not occupied by anyone. In absence of any material to show that the said dilapidated house was used as dwelling house of the plaintiff’s family the prayer for injunction could not be allowed. 3. Shri Bhuyan, the learned counsel appearing for the appellant challenges the impugned order on the ground that admit¬tedly the appellant is one of the co-sharers and has 1/8th share over the suit property. Admittedly, there was also a dwelling house existing over the disputed property and there had been no partition amongst the co-sharers. It was also contended by the learned counsel for the appellant that even though some of the co-sharers have sold the property to defendant No.14, she has no right of joint possession or part enjoyment of the house in view of the restriction imposed under Section 44 of the Transfer of Property Act, 1882. It was also contended by the learned counsel for the appellant that even though some of the co-sharers have sold the property to defendant No.14, she has no right of joint possession or part enjoyment of the house in view of the restriction imposed under Section 44 of the Transfer of Property Act, 1882. Since the respondent has no right of joint possession or part enjoyment of the house, the trial Court should have allowed the petition for injunction. In this connection, the learned counsel for the appellant also relied upon some deci¬sions, which shall be dealt with later on. Shri R. K. Mohanty, the learned counsel appearing for the respondent with reference to the recitals in the sale deed submitted that there was a dilapidated house existing over the disputed plot and the same was not being used for years. This being the recital in the sale deed, it can never be said that the said dilapidated house was being used or to be used as dwelling house of the joint family. In view of such nature of materials available on record, Section 44 of the T.P. Act has no application. 4. Having heard learned counsel for the parties, I feel it necessary to look into the sale deed executed in favour of the respondent. The last part of the sale deed described the schedule of property. It is mentioned therein that there was a dilapidated single storied building having 1200 sq. ft. roofing, which was not in living condition. The specific case of the respondent is that for last 4 to 5 years nobody was occupying the said house since it was not in a living condition. The learned counsel for the petitioner referred to a decision of the Allahabad High Court in the case of Bhagirath v. Afaq Rasul and another reported in AIR 1952 Allahabad 207. The single Bench of Allahabad High Court held that : “In order to determine whether a particular house is a family dwelling house within Section 4, Partition Act, the ques¬tion to be decided in each case is whether the family has aban¬doned all idea of occupying the house as residential house and not the state in which a house is. The single Bench of Allahabad High Court held that : “In order to determine whether a particular house is a family dwelling house within Section 4, Partition Act, the ques¬tion to be decided in each case is whether the family has aban¬doned all idea of occupying the house as residential house and not the state in which a house is. A person may not be able to reconstruct his house for a considerable length of time owing to poverty or owing to disputes with strangers to the family regard¬ing its occupation. The house may fall into a complete state of disrepair owing to these circumstances but it will nevertheless continued to be a family residential house, if the members of the family intend to use it as such as soon as they can conveniently to do so.” The other decision relied upon by the learned counsel for the appellant is in the case of Boto Krishna Ghose v. Akhoy Kumar Ghose and others reported in AIR 1950 Calcutta 111. The Calcutta High Court in the said decision observed that Co-sharers having their own separate huts on sites, forming part of undivided property, the integrity of dwelling house is not destroyed. Another decision was relied upon by the learned counsel for the appellant in the case of Tejpal Khandelwal and others v. Mst. Purnima Bai and others reported in AIR 1976 Orissa 62. While deciding the question as to what is to be construed as a dwelling house, the Court observed that if in fact a house is used for residential purpose by the members of the family then it can be decisively termed as a dwelling house. A dwelling house may be tenanted in certain circumstances. The test, which is essential is that the house must have been meant for residential purposes though temporarily it might be used for other purposes according to the exigency of circumstances. 5. On perusal of the aforesaid three decisions, it is to be determined as to whether a particular house is being used as dwelling house or not. If the house is being used by the co-sharers, there can never be any doubt in mind that it was used as dwelling house. 5. On perusal of the aforesaid three decisions, it is to be determined as to whether a particular house is being used as dwelling house or not. If the house is being used by the co-sharers, there can never be any doubt in mind that it was used as dwelling house. Under certain circumstances, a house may be under occupation of somebody else with permission of the co-sharers and under such circumstances also it can be said that it is being used as dwelling house. There may be cases where for a certain period the house is not used as dwelling house but the intention is to use it for the purpose of dwelling house in future and under such circumstances also Section 44 of the T.P. Act shall be applicable. So far as present case is concerned, whether the appellant has share in the property or not is to be decided in the suit. Even accepting prima facie that the appellant has a share in the property, the other question comes up for considera¬tion is whether the dilapidated house which was existing in the suit plot can be termed as a dwelling house.It is specific case of the respondent that the said dilapidated house was not being used by any one for 4 to 5 years and the recitals in the sale deed clearly indicate that the dilapidated house existing on the suit plot was not fit for use. In view of such nature of evi¬dence, I am of the view that the house not being used by the co-sharers for a considerable length of time for any purpose whatso¬ever cannot be called a dwelling house and accordingly, Section 44 of the T.P. Act shall have no application. Admittedly the respondent has purchased the suit property under a registered sale deed and acquires a right over the same. I am, therefore of the view that there is no ground available for this Court to interfere with the impugned order. The appeal accordingly fails and the same is dismissed. The L.C.R. be sent back immediately. Appeal dismissed.