IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 199/1997 & 19/1999 Decided on : May 3, 2010 RSA No.199/1997 Om Parkash Saini …Appellant Versus Sunder Lal and others ...Respondents RSA No.19/1999 Om Parkash Saini …Appellant Versus Sanjay Kumar and others …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr. Bimal Gupta, Advocate in both the appeals. For the Respondents: Mr. Anil Kumar God, Advocate in both the appeals. . Surjit Singh, Judge (oral) By this common judgment, two appeals, particulars whereof are given in the title of this judgment, are being disposed of, because parties in both the cases are the same, questions of law and facts involved are also the same and moreover, substantial questions of law, on which these appeals were admitted, are also the same, which are as follows: “1. Whether learned District Judge has misconstrued, misinterpreted Section 4 of Whether reporters of the local papers may be allowed to see the judgment? …2… the Partition Act, 1893 and whether defendants are entitled to take benefit of Section 4 of the Act regarding the property in question? 2. Whether learned District Judge is justified in sending the case for determination of value of the property in question to learned Sr. Sub Judge, Nahan, alongwith further directions even though defendants did not file any appeal against the judgment, decree dated 31.5.1996 passed by ld. Sr. Sub Judge, Nahan and they were satisfied with the dismissal of the suit?” 2. Facts relevant for the disposal of the two appeals may be noticed. Suit property consists of a dwelling house, standing on a site measuring 159.52 square metres, situate in Mohal Minyan-ka-Mandir, Nahan Town. The house was jointly owned by respondents Sunder Lal and Brij Lal, hereinafter called defendants, and Ajit Kumar, Ram Gopal (brothers) and Prem Devi, their sister. Ajit Kumar, Ram Gopal and Prem Devi shifted to Jagadhri long back and started living there. Their father Narata Ram, who was earlier joint owner with the defendants, had created equitable mortgage of his share in the joint house and a mutation to that effect was attested in the year 1972. Later on, the mortgage was redeemed. The above named two sons and daughter of Narata Ram sold their half share in the joint house in favour of Om Parkash, hereinafter called plaintiff. Sale was executed in the year 1988. Thereafter …3… appellant-plaintiff Om Parkash filed a suit for separate possession of his half share, by way of partition. The suit was contested by respondents-defendants, inter alia, on the ground that the property being a dwelling house, they had a preferential right to purchase the half share, which successors of Narata Ram, namely Ajit Kumar, Ram Gopal and Prem Devi, had sold in favour of plaintiff-appellant Om Parkash. 3. Defendants-respondents also filed a suit for permanent prohibitory injunction, restraining the appellant- plaintiff Om Parkash from interfering with their possession over the suit property, which was a dwelling house, on the plea that they had purchased the half share in the property from Ajit Kumar, Ram Gopal and Prem Devi. 4. An ex-parte decree was passed by the trial Court in the suit instituted by the respondents-defendants for permanent prohibitory injunction. Appellant Om Parkash filed an appeal against that ex-parte decree, which was registered as appeal No.124-CA/13 of 1997. That appeal has been dismissed by the District Judge, vide judgment dated 26.9.1998. RSA No.19 of 1999 is directed against said judgment and decree. 5. Suit filed by appellant-plaintiff Om Parkash was dismissed by the trial Court with the finding that the respondents-defendants had a right to purchase half share, which the plaintiff-appellant Om Parkash had purchased from Ajit Kumar etc., in view of the provision of Section 4 of …4… the Partition Act. Appeal was filed in the Court of learned District Judge, which was dismissed, vide judgment dated 4.7.1997. While dismissing the said appeal, learned District Judge directed the trial Court to determine the value of the shares sold to the appellant-plaintiff. 6. I have heard the learned counsel for the appellant as also the learned counsel for the respondents and gone through the record. 7. It is submitted on behalf of the appellant that the property, in question, has ceased to be a dwelling house, because the house has collapsed, per admission of one of the respondents-defendants, namely Sunder Lal, while appearing as DW-1. This respondent-defendant stated that the house had collapsed, but at the same time he stated that he still was residing in the courtyard of the house. His statement gives the impression that he is unable to reconstruct the house either for want of funds or on account of his being only a co-sharer and not as exclusive owner and, therefore, he is living in the courtyard by arranging some temporary shelter from sun and rain. Mere fact that the house has collapsed and the members of the family are living in the courtyard, by arranging temporary shelter, would not change the character and nature of the property. Property still remains a dwelling house, provided it is occupied by the members of the family, which as per statement of DW-1 Sunder Lal, one of the respondents, is so occupied. There is absolutely no evidence from the side …5… of the plaintiff-appellant that the property is not occupied for dwelling purpose by the respondents-defendants. 8. Another submission made on behalf of the appellant-plaintiff is that the predecessor of Ajit Kumar etc., the vendors, mortgaged his share in the year 1972 and, if it is so, the property ceases to be a dwelling house of the family. In support of his contention, he places reliance upon a judgment of Kutch High Court in Govindji Dasa Vs. Kanji Mavji and another, AIR 1952 Kutch 14, wherein it has been held that where the property is mortgaged with possession to a stranger or sold to a third party and it is with the mortgagee, it cannot be treated as dwelling house of the family. In the present case, the mortgage was not with possession, but it was only an equitable mortgage as is clear from the order of mutation Ext. PY. So, this submission is rejected. 9. Also, it has been submitted that Narata, the predecessor of the vendors, had given a portion of the house to his wife’s sister’s husband, who remained in its occupation for some time. There is no evidence in support of this plea, except the bald statement of one of the vendors, namely Ajit Kumar, examined by the appellant. Even if it be assumed that a relative of Narata Ram remained in occupation of a portion of the house for some time, that would not mean that the property had ceased to be a dwelling house of the family; especially when the person, who occupied it temporarily, is stated to be a …6… relative of Narata Ram. In any case, said relative was not in possession of any portion of the house, when the property was sold to the plaintiff-appellant, as is admitted by PW-3 Ajit Kumar, one of the vendors. 10. It is well settled that if a portion of the dwelling house of a family is with the tenants or mortgagee(s) that will not change the status of the property from a dwelling house of the family to some other kind of property. Reference in this behalf may be made to Bhagwati Lal and others Vs. Bhorelal and others, AIR 1974 Rajasthan 225, Mrs. Sushila Baral Vs. John Bunyan Baral and others, AIR 1956 Orissa 56 and Santosh Kr. Mitra Vs. Kalipada Das and others, AIR 1981 Calcutta 278. 11. In view of the above stated position, substantial question of law No.1 is answered against the appellant- plaintiff. 12. Now, when the respondents-defendants have the right to pre-empt the sale, made in favour of the appellant- plaintiff, in view of the provision of Section 4 of the Partition Act, it is the requirement of law that valuation of the share purchased by the appellant-plaintiff is done. Therefore, there is nothing wrong with the direction issued by the first Appellate Court to the trial Court to determine the value of the share of the appellant-plaintiff in the property, in question, so that the respondents-defendants may exercise the right available to them, under Section 4 of the Partition …7… act. So, this question is also answered against the appellant-plaintiff. 13. For the foregoing reasons, both the appeals are dismissed. May 3, 2010 (ss) (Surjit Singh), J