Guha Ray, J.:— This is an appeal by defendant No. 1 Ganga Dutt Murar-ka who had purchased 5|6th share of the disputed property from one of the co-sharers from an order under section 4 of the Partition Act. After the purchase of the 5/6th share of the disputed property by defendant No. 1, Bibhabati who acquired 1/6th share of the disputed property under the Will of her mother instituted a suit for partition. There was a preliminary decree on the 17th of June, 1952. Thereafter she made an application under section 4 of the Partition Act. The application was opposed by defendant No. 1 on two grounds, namely, that the plaintiff was not a member of the undivided family to which the disputed property belonged, and secondly, that the application was not maintainable in law. The learned court below overruled both the objections and allowed the application of Bibhabati under section 4 of the Partition) Act.
1. Mr. Gupta on behalf of the appellant does not raise before us any of the two points taken before the trial court, but raises a new point altogether, namely, that there was no investigation by the court below as to whether the entire disputed property really formed a dwelling house and whether to the whole of this property section 4 of the Partition Act applies.
2. Before proceeding to deal with the point in controversy in this appeal it is necessary to dispose of certain preliminary objections raised on behalf of the respondent, This objection is based on section 8 of the Partition Act under which any order for sale made by the court under section 2, 3 “or 4 is deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. Mr. Chakravarty on behalf of the respondent argues that If an order for sale is deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, an, appeal from it is really an appeal from a decree and not an appeal from an order so that this Court which is vested with jurisdiction to hear miscellaneous appeals which means appeals from orders has no jurisdiction to hear this appeal. Mr. Chakravarty also raises the question that the necessary court-fees payable on the memorandum of such an appeal has not been paid. In the Appellate Side Rules there is really nothing to indicate whether appeals from orders under section 2, 3 or 4 of the Partition Act are to be treated as Appeals from Original Decrees or as Appeals from Original Orders. Rule 64 of Chapter IX of the Appellate Side Rules relating to the preparation of paper books in Appeals from Orders lays down that the rules for the preparation of paper books in Appeals from Original Decrees valued under Rs. 20,000/- or valued at Rs. 20,000/- or more shall apply respectively to every first appeal from an order of the like value including an order under section 47 of the Code of Civil Procedure passed by a Subordinate Court not being an Order under Order XLI, rule 23 of the same Code with certain modifications. This does not really help us in determining whether an Appeal from an order under section 4 of the Partition) Act which is to be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure is to be treated as an Appeal from an Original Order or an Appeal from an Original Decree. In a publication known as the Rules of Business of the Judicial Department, Appellate Side, High Court, Calcutta, prepared under the orders of the Chief Justice as far back as 1923 at page 48 are enumerated certain things as Appeals from Original Decrees and certain others as Appeals from Orders. In this second category are included Appeals from Orders under sections 47 and 144 of the Code of Civil Procedure which also under section 2 of the Code of Civil Procedure are deemed to be decrees. An order under section 4 of the Partition Act which is deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure seems to us to be on a par with orders under sections 47 and 144 of the Code of Civil Procedure and so appeals therefrom may be classified in the same way as Appeals from Orders under sections 47 and 144 of the Code of Civil Procedure. Equally reasonably appeals from Orders under section 4 of the Partition Act may be classed as Appeals from Original Decrees, but as there is no classification at all of such appeals anywhere, it is impossible to say that it is wrong to classify them as Appeals from Orders. Consequently, as the appeal before us has been described as an Appeal from an Order we are treating it as though it were really an Appeal from, an Order although it may have been differently described as an Appeal from an Original Decree. In that view we are of opinion that we have jurisdiction to deal with the appeal. Why such appeals are described as Miscellaneous Appeals, a term, which is nowhere used in the Appellate Side Rules it is difficult to say except that the term is in use in the Civil Rules) and Orders in which applications under sections 47 and 144 of the Code of Civil Procedure are described as miscellaneous cases so that appeals arising out of them have been classified in the Civil Rules and Orders as Miscellaneous Appeals, and that it may have crept into this court from that source. The only other question that remains to be considered on the preliminary point raised by Mr. Chakravarty on behalf of the respondent is the question of court-fees. It is clear to us that clause (va) of Article 17, Schedule II, is applicable to such a case and under this Article a fixed court-fee of Rs. 15/- is payable on the memorandum of such an appeal. The appellant paid a court-fee of only Rs. 5/- so that the balance of Rs. 10/- must be paid in court-fees in the course of the day.
3. Now, to come to the question raised on behalf of the appellant. In paragraphs 1, 9 and 11 and the prayer portion of Bibhabati's application the disputed property is described as an ancestral dwelling house with adjoining garden. In paragraph 8 it is described as a house and premises and| then in the schelude the description of the property is as follows: “All that five-sixth share of and in all that piece or parcel of garden land measuring about three bighas eight cottas and fourteeen chittaks together with partly one-storied and partly two-storied brick-built dwelling house thereon or on a portion thereof with all structures, compound walls, appendages and appurtenances being premises Nos. 9, 11 and 12 Gopal Mukherjee Road and 23, Lockgate Road at mouja Cossipur Bir-para within thana Chitpur *** appertaining to the rent-free (Nish-kar) Holdings Nos. 35, 36, 37 and 38 and also to the rent-paying Holdings Nos. 32, 39 and 40 of Sub-division 5 in Division I of Dihi Panchannogram Khas Mahal Collectorate in the district of 24 Parganas within the limits of Corporation of Calcutta.”
4. The point raised on behalf of the appellant is, as already stated, that the whole of this disputed property is not a dwelling house within the meaning of section 4 of the Partition Act so that no order could be passed under that section in respect of the whole of the disputed property. Mr. Gupta on behalf of the appellant frankly concedes that although this point should have been taken before the trial court it was not actually taken there and his client should be put on terms for an order of remand. Clearly if in the application under section 4 of the Partition Act it had been quite clearly stated that the disputed property was a dwelling house and although there were four premises, they really formed part of one compact dwelling house enclosed within one set of boundary walls, we would have been extremely reluctant to remand the proceedings for an investigation of the question whether the whole of the disputed properly forms part of one dwelling house or whether parts of the disputed property are really severable from the dwelling house proper. The law on this point has been laid down in the case of Kshirode Chunder Ghosal v. Saroda Prosad Mitra (1) (12 C.L.J 525) as follows: “The rule is that the term ‘house’ embraces not merely the structure or building, but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier and the applicant is entitled to purchase from the stranger purchaser not merely the structure of the dwelling house but also the land on which it stends and further every appurtenant and accessory which may be deemed necessary to a full and complete enjoyment of the thing sold”. As the disputed property admittedly consists of four different municipal premises, one of which lies on a different road altogether and as it is not clearly stated in the application under section 4 of the Partition Act that all these premises form part of one dwelling house, it is necessary in our opinion that the matter should be investigated and for this a remand is necessary.
5. As the appellant did not take the point which undoubtedly he should have taken, the appellant must deposit in the trial court the sum of Rs. 200/- (rupees two hundred) only to the credit of the respondent within a week from to-day. The respondent will be entitled to withdraw this money after it has been deposited irrespective of the result of the proceeding. If he fails to make the deposit within the time specified, the appeal will stand dismissed with costs—the hearing fee being assessed at five gold mohurs.
6. If on the other hand, he makes the deposit as directed, the appeal will be allowed without costs, the case remanded to the trial court and the learned court below will allow Bibhabati to amend her application in such a way that it is made clear whether the entire disputed property forms part of one dwelling house or not and after she has made the necessary amendment in her application the appellant will be entitled to file an objection and then there will have to be an enquiry as to whether the entire disputed property is one dwelling house within the meaning of section 4 of the Partition Act and if the whole of it is not part of one dwelling house, how much of it is outside of it. If any part of the disputed property is found to lie outside the dwelling house, that will be partitioned.
7. The entire costs of the enquiry are to be borne by the appellant irrespective of its result. The appeal is disposed of as above.
8. The application under section 115 of the Code of Civil Procedure is not passed and is accordingly dismissed but without costs.
Sen, J.:— I agree.
A.K.D-G.