JUDGMENT Dinesh Gupta, J. 1. This Second Appeal is preferred against the decree dated 20.2.1998 passed by Additional District Judge, Bhadohi in Appeal No. 44 of 1997 arising out of decree dated 29.5.1997 passed by learned Civil Judge, Gyanpur in Suit No. 89 of 1991. The brief facts which give rise to this case are that the property which is in shape of a house, initially belong to one Garib. He had one daughter namely Smt. Saryoo Devi who was married to Baijnath. Garib executed a gift deed in favour of Smt. Saryoo Devi and Baijnath in respect of house in question giving half share to each. The possession was also handed over to them. 2. Sri Raj Narain and Vishwanath were tenants in a portion of the house. Lateron on 23.2.1970 Saryoo Devi who had half share in the house in question sold the same in favour of Raj Narain and Bechai. Admittedly, Raj Narain and others were not the family members of Smt. Saryoo Devi and Baijnath, they were strangers. Raj Narain and Bechai filed a suit for partition of the house and claimed half share and claimed that their share may be partitioned and they may be given possession. 3. The suit was contested by Baijnath inter alia on the ground that in view of section 4 of the Partition Act, the plaintiffs were not entitled for partition as they were not member of the undivided family and he is not entitled to buy the share sold by Smt. Saryoo Devi in favour of Raj Narain and Bechai. 4. The Trial Court decreed the suit holding that the house in question was not a house for residential purposes by the members of the family of Baij Nath and it was also held that the plaintiffs are entitled for partition. 5. On appeal filed by defendant Baij Nath the lower Appellate Court reversed the decree holding that the defendant Baij Nath was entitled for the benefit of section4 of the Partition Act and dismissed the suit giving right to Baijnath to purchase the property. Against the said judgment and decree of the lower Appellate Court, the plaintiff Raj Narain and Bechai filed Second Appeal. Against the said judgment and decree of the lower Appellate Court, the plaintiff Raj Narain and Bechai filed Second Appeal. The Second Appeal was dismissed vide order 19.7.1979 holding that Baij Nath was a member of the family and is entitled to purchase the share of the appellant Raj Narain and Bechai, in view of section 4 of the Partition Act. 6. A review application filed by appellant Om Prakash Verma and others, the heirs of Raj Narain and Bechai who were the original appellants with the allegation that during the pendency of this appeal Baijnath transferred his portion vide registered sale-deed dated 25.5.1988 in favour of one Phoolchand. Lateron on 7th August, 1989 Baijnath expired and that the appeal was heard 15th July and the transferee from Baijnath, Phool chand was not entitled to claim any benefit on the basis of section 4 of the Partition Act. Since the factum of transfer of share of Baijnath in favour of Phool Chand was not in the knowledge of the appellant therefore this review petition was filed against Phoolchand who represented Baijnath as per the contention of the appellant the said review petition was rejected on 27.3.1990 against the said rejection of review application as well as against the dismissal of appeal the appellant preferred Special Leave Petition before the Apex Court which was also dismissed. 7. Thereafter Phoolchand filed an application against Om Prakash and others with the prayer that the half share of the house be transferred in favour of the applicant Phoolchand after getting the sum  Rs. 7000/deposited in Court or any other valuation to which the Court determined and applicant be directed to deposit the same and thereafter the applicant be delivered possession through Court. 8. The said application was resisted by Om Prakash on the ground that the Phool Chand is not entitled to the benefit of section 4 of the Partition Act as he has only purchased half share through sale-deed and is not member of the family of Baijnath. The said application was allowed and the Trial Court accepted the application filed by Phoolchand holding that the Phoolchand is entitled to preparation of final decree and asked Phoolchand to deposit  Rs. The said application was allowed and the Trial Court accepted the application filed by Phoolchand holding that the Phoolchand is entitled to preparation of final decree and asked Phoolchand to deposit  Rs. 8500 the price of the half of share of Om Prakash Verma and others and on deposition of such amount the opposite parties were directed to deliver the possession of the half share of the house in question. 9. Feeling aggrieved Om Prakash Verma and others filed appeal before learned District Judge, which was registered as Civil Appeal No. 44 of 1997 and transferred to the Court of Additional District Judge, Bhadohi, who partly allowed the appeal and remanded back the matter to the Trial Court to determine the value of the half share of the house on 29.5.1997 which is the date of preparation of final decree after giving opportunity to the parties to lead evidence in respect of the valuation and Phool Chand was held entitled to get the possession of the half share after deposition of such determined amount of price and selection of share of house. On other points the appeal was dismissed. 10. Feeling aggrieved, the appellant preferred this Second Appeal before this Court. 11. Phool Chand also filed First Appeal From Order against the impugned order of remand for determination of the price of the house on the date of preparation of the final decree. 12. Heard learned Counsel for the appellant Sri Chandrabhan Gupta assisted by Sri S.K. Shukla and Sri Ashish Gupta at time of admission. 13. Learned Counsel for the appellant submitted that both the Courts below have erred while interpreting section 4 of the Partition Act. 14. That the Court below has ignored the material that Baijnath has executed registered sale-deed on 25.5.1988 in favour of Phool Chand thus all rights in the house in dispute extinguished and Phoolchand is not entitled to benefit of section 4 of the Partition Act after execution of sale-deed in his favour by Baijnath. 15. That both the Courts below erred in ignoring the object of section 4 of the Partition Act, which was enacted keeping in mind to preserve the unity of the Joint family and maintain individuality of joint status and integrity of joint property. 16. 15. That both the Courts below erred in ignoring the object of section 4 of the Partition Act, which was enacted keeping in mind to preserve the unity of the Joint family and maintain individuality of joint status and integrity of joint property. 16. That the Court below has failed to consider that Phool Chand was not member of family of Baijnath and is not entitled for the benefit of section 4 of the partition Act. The Act extends benefit to hose only who are family member and reside in the house. 17. That the view taken by the Court below that Phool Chand is entitled to the benefit of section 4 of the Partition Act, has become final, is totally erroneous and against the law. 18. That the Court below has failed to consider that in review it has not been decided whether Phoolchand is member of family of Baijnath or not. He was simply impleaded in the review petition as he has subsequently purchased the house through registered sale-deed from Baijnath. 19. That the house in dispute is a shop and thus there is no question of applicability of section 4 of the Partition Act. 20. That no Court has decided that Phoolchand is entitled to get benefit of section 4 of the Partition Act. 21. Learned Counsel further submitted that even the Special Leave Petition filed by the appellant was dismissed in limine and will not bar the rights of the appellant to raise the plea that Phoolchand is not entitled to benefit of section 4 of the Partition Act. 22. Learned Counsel for appellant further drew my attention to sections 2, 4, and 8 of the Partition Act and submitted that the benefit of this section can be availed only by a person who is a member of the family while in fact Phoolchand was not a member of the family of Baijnath. He is nephew of Baijnath. 23. Learned Counsel further submitted that the dismissal of the review application which was not a reasoned order will not operate as res-judicata. The appellant can raise the plea of non-availability of benefit of section 4 of Partition Act to Phoolchand. 24. Learned Counsel further submitted that the substantial question of law involved in this appeal. Whether Phoolchand is entitled to benefit of section 4 of Partition Act or not and this matter requires consideration and scrutiny. 25. The appellant can raise the plea of non-availability of benefit of section 4 of Partition Act to Phoolchand. 24. Learned Counsel further submitted that the substantial question of law involved in this appeal. Whether Phoolchand is entitled to benefit of section 4 of Partition Act or not and this matter requires consideration and scrutiny. 25. Learned Counsel for the respondent opposed and submitted that the question of availability of benefit of section 4 to Phoolchand has been decided by the High Court and Special Leave Petition filed by the appellant has also been dismissed which finally gave a finality to the dispute in question. 26. In the Second Appeal arisen out of the judgment of the first appeal, bearing No. 2375 of 1974 the Court has finally decided that Baijnath being member of the undivided family and the house and the property being residential property is entitled to the benefit of section 4 of the Partition Act. Hence, the appellant can not raise the plea that the house is not dwelling house and Baijnath is not entitled to the benefit of section 4 of the Partition Act. So far as question of applicability of same benefit to Phoolchand is concerned, the appellant themselves impleaded Phoolchand as heir of deceased Baijnath and filed a review petition in which they have raised objection regarding availability of the benefit of section 4 of Partition Act to Phoolchand. The review petition was dismissed and the Special Leave Petition filed against the dismissal of the Second Appeal as well as against review petition was also dismissed. In the memo of Special Leave Petition the appellant had also taken all the objection regarding availability of the benefit of section 4 of the Partition Act to Phool Chand hence the dismissal of the review petition and the Special leave Petition finally seized the matter and now the appellant can not re-agitate the question of availability of benefit of section 4 of the Partition Act to Phoolchand. Both the Courts below while entertaining the application moved by Phoolchand for the relief of possession of house to share of the appellant after determination of the valuation of the property on the date when the offer to purchase was made. The Courts below concurrently held that Phoolchand is entitled to the relief of possession over the 1/2 share of the appellant. The Courts below concurrently held that Phoolchand is entitled to the relief of possession over the 1/2 share of the appellant. The finding of both the Courts below are based on the facts and evidence available on the record and no interference is required on the said finding and the appeal is liable to be dismissed. 27. I am unable to accept the contention raised by appellant. 28. Relevant section 2 of the Partition Act 1893 reads as under: 2. Power of Court to order sale instead of division in partition suits.--Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of shareholders therein or any other special circumstances, a division of the property can not reasonably or conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and a distribution of the proceeds. The relevant section relied upon by both the parties is section 4 which reads as under: "4. 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 shareholder 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 shareholder, 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 shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 29. Learned Counsel also relied upon section 7 of the Act: "7. (2). If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 29. Learned Counsel also relied upon section 7 of the Act: "7. Procedure to be followed in case of sales.--Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely: (a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction (**) the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar, (b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees.?" 30. Undisputedly Baijnath was held to be entitled to get the benefit under section 4 of the Partition Act. The matter was challenged upto the Apex Court and was settled. It was not disputed that after disposal of the Second Appeal of the appellant a review application was preferred in which Phool Chand was added as legal representative of Baijnath who died during the pendency of the appeal. 31. In the review petition the appellant had taken all the objections regarding availability of benefit of section 4 of Partition Act to Phool Chand. 32. The review petition was dismissed by this Court. The appellant challenged the decision passed in Second Appeal as well as in the review petition before the Apex Court and also taken all the grounds of objection regarding availability of benefit of section 4 of the Partition Act to Phool Chand. The said Special Leave Petition was also dismissed in limine. Even dismissal of the Special leave Petition in limine will put to an end the question of availability of benefit of section 4 of Partition Act to Phool Chand. Both the Courts below have decided this objection of the appellant. I am also of the view that the view taken by both the Courts below is perfectly legal. Even dismissal of the Special leave Petition in limine will put to an end the question of availability of benefit of section 4 of Partition Act to Phool Chand. Both the Courts below have decided this objection of the appellant. I am also of the view that the view taken by both the Courts below is perfectly legal. Once Phool Chand is admitted to be the legal representative of Baijnath he is also entitled to the same benefit which were available to Baijnath. Further both the Courts below have decided that Phool Chand being the legal representative of Baijnath and is nephew of Baijnath and living with Baijnath in the same house is also entitled to the benefit of section 4 of the Partition Act. 33. This is a concurrent finding recorded by both the Courts below and these findings are based on the admitted facts that the question of availability of benefit of section 4 of the Partition Act to Phoolchand was maintained by the Apex Court. 34. Learned Counsel for the appellant has failed to show me any perversity in the judgments of both the Courts below. No evidence is misread or misinterpreted. The substantial question which the appellant wants to raise before this Court has already been decided in the Second Appeal thereafter in the review petition and by the Apex Court. The appeal lacks merit and is accordingly dismissed.