B. Bhattacharya. J.
1. This revlsional application under section 115 of the Code of Civil Procedure is at the instance of defendant No. 1 in a suitfor partition and is directed against Order No. 404 dated March 28, 1992 passed by the learned Assistant District Judge, 4th Court, Allpore in Misc. Case No. 44 of 1987 arising out of Title Suit No. 29 of 1970 thereby rejecting an application for pre-emption under section 4 of the Partition Act.
2. There is no dispute that one Sallen Ghosh was the original owner of the suit property, who died on June 23, 1942 leaving one son, the petitioner herein, two daughters and his widow. Therefore, according to the then law of succession the present petitioner and his mother became Joint owners of the suit property subject to the provision contained in section 3(3) of the Hindu Women's Right to Property Act, 1937, However in view of coming into operation of the Hindu Succession Act, 1956 his mother's right became absolute and thus the mother and the present petitioner became co-sharers of the property, each having molly share. The mother by a registered Deed of Gift dated August 23, 1968 gifted her share to her two daughters, who were plaintiffs in the suit. Acquiring 8 anna share In the suit property through mother, the two sisters of the present petitioner filed a suit being Title Suit No. 29 of 1970 against the petitioners, their brother. The said suit was decreed in preliminary form on Februaiy 28, 1972 thereby declaring 8 anna share of the present petitioner and 4 anna share each of the plaintiffs. In the said preliminary decree liberty was given to the present petitioner to pre-empt the share of plaintiff No. 1, who was married at that point of time. There Is no dispute that plaintiff No. 2 got married on June 12, 1976.
3. However, before marriage, the plaintiff No. 2 filed an application under section 4 of the Partition Act thereby giving rise to Misc. Case No. 21 of 1972, praying for pre-emption of the share of her elder sister viz. plaintiff No. 1. As Indicated earlier, during the pendency of the said Misc. Case plaintiff No. 2 got married and thereafter the present petitioner filed an application before the learned trial court praying for an order of buying the share of plaintiff No. 2 as she got married. The prayer of the present petitioner for purchasing the share of plaintiff No. 2 was rejected by the learned trial Judge on July 8. 1978. However, the Misc. Case No. 21 of 1972 was finally disposed of by the learned trial Judge on January 12, 1980 with a finding that both the petitioner and the plaintiff No. 2 will have the right to buy the share of the other sister viz. plaintiff No. 1.
4. Being dissatisfied, the present petitioner preferred an appeal before this court and this court by order dated April 23 1987 allowed such appeal and set aside the order passed by the learned trial Judge thereby holding that the petitioner alone was entitled to purchase the share of plaintiff No. 1, as on marriage, the plaintiff No. 2 lost the status of a member of the undivided family. There is no dispute that the said order has not been challenged before higher forum.
5. After the aforesaid decision passed by this court, the present petitioner filed an application under section 4 of the Partition Act for purchasing the 1/4th share of the plaintiff No. 2 under changed circumstances.
6. By the order impuged, the learned trial Judge has rejected suchapplication.
7. Being dissatisfied, the brother has come up in revision.
8. It appears from the order impugned that the learned trial Judge has rejected such application on the sole ground that the petitioner in the past filed a similar application under section 4 of the Partition Act for purchasing the share of plaintiff No. 2 and by order No. 255 dated July 8, 1978 the said application filed by the petitioner was considered and rejected and the present petitioner did nor prefer any appeal or revision against such order. Thus, according to the learned trial Judge fresh application for pre-emption is not maintainable.
9. Mr. M.P. Mukherjee, the learned advocate appearing on bahalf of the petitioner has contended that in view of the order passed by this court in the previous first Misc. Appeal thereby holding that after marriage, the plaintiff No. 2 had ceased to be a member of the undivided family and thus permitting the petitioner alone to purchase the share of plaintiff No. 1, the learned trial Judge acted illegally and with material irregularity in rejecting the said application. According to Mr. Mukherjee, the issue in the previous misc. appeal and the issue involved in the present application being same, the plaintiff No. 2 was bound by the said decision. Mr. Mukherjee frankly concedes that although his client's previous application was earlier rejected but after the passing of the order passed by the Division Bench of this court thereby declaring that the plaintiff No. 2 was no longer a member of the undivided family, his client was entitled to an order of pre-emption.
10. Mr. Subhro Kamal Mukherjee, the learned advocate appearing on behalf of the plaintiff No. 2 has however supported the order Impugned and has contended that the order passed by the Division Bench of this court is no longer good law in view of subsequent decision of the apex court in the case of Narashimha v. Susheela Bal reported in : AIR1996SC1826 . Mr. Mukherjee further contends that even on earlier occasion while holding that the petitioner alone was entitled to pre-empt the share of plaintiff No. 1, the Division Bench relied upon a Supreme Court decision which was not relevant. At any rate, Mr. Mukherjee contends that the previous Division Bench decision of this court cannot be binding upon his client in view of the aforesaid subsequent Supreme Court decision where Supreme Court has held that a dwelling house ceases to be so the moment tenants are inducted therein. Mr. Mukherjee submits that admittedly there is a tenant in the said house.
11. Mr. Mukherjee lastly contends that even if the order impugned is otherwise erroneous and the decision of the Division Bench is binding upon his client, this court should not interfere with the order impugned unless it has occasioned failure of justice and caused irreperable injury to the petitioner. Mr. Mukherjee contends that the previous order of the Division Bench has lost its force after the said decision of the Supreme Court inasmuch as the suit property is not a dwelling house belonging to an undivided family within the meaning of section 4 of the Partition Act and as such this court should not interfere with the order passed by the learned trial Judge.
12. After hearing the learned advocates for the parties and after going through the materials on record, I am of the view that the learned trial Judgeacted illegally and with material irregularity in rejecting the prayer of the petitioner for pre-emption of the share of the plaintiff No. 2. In my opinion, Mr. M.P. Mikherjee has rightly contended that in course of the same proceeding this court in the previous first miscellaneous appeal having specifically found that after marriage the plaintiff No. 2 ceased to be the member of the family of the petitioner and having permitted the petitioner herein to pre-empt the share of the plaintiff No. 1 by denying such right to the plaintiff No. 2, the said decision Is binding upon the parties and the learned trial Judge could not ignore the said decision.
13. As regards the decision of the apex court in the case of Narashimaha v. Susheela Bai (supra) cited by Mr. Subhro Kamal Mukherjee, I find that the principles laid down therein cannot have any application to the fact of the present case. In the aforesaid case, the Supreme Court was considering the scope of section 23 of the Hindu Succession Act and also the meaning of the phrase 'a dwelling house wholly occupied by member of his or her family' appearing therein. In that context the Supreme Court held that unless such house is wholly occupied by the members, the said section will have no application and that once a tenant is inducted therein, the operation of the said section is excluded.
14. In the instant case, the father of the parties having died tn the year 1942, the plaintiffs were not heirs specified in Class I of the Schedule and as such they could maintain a suit for partition against their brother and section 23 of the Hindu Succession Act did not stand in their way in getting a preliminary decree for partition. But I am unable to accept the contention of Mr. Subhro Kamal Mukherjee that the interpretation of section 23 of the Hindu Succession Act will be applicable to a case under section 4 of the Partition Act and thus If a dwelling house Is partly tenanted, no order of pre-emption should be passed.
15. As indicated earlier, section 23 of the Hindu Succession Act itself enjoins that the house must be 'wholly occupied' by the members of the family thus specifically excluding the operation of that section to a house partly tenanted. In section 4 of the Partition Act there is no such restriction that it should be wholly occupied by the members of the family. Therefore, the decisions of the Supreme Court tn the case of Narashimaha v. Susheela Bal (supra) cannot have any application to a case dealing with section 4 of the Partition Act. After all, a decision is an authority for what it decides and not what can be logically deduced therefrom. Even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. [Krishna Kumar v. Union of India; : (1991)ILLJ191SC , Municipal Corporation Delhi v. Gurnam Kaur, 1988(1) SCC 101].
16. The consistent view of this court Is that the provision of section 4 of the Partition Act is application even in cases where part of dwelling house is in occupation of a tenant. (See Kalipada v. Tulsidas reported in : AIR1960Cal467 where all the decisions on the point have been referred to).
17. Therefore, there is no substance in the first contention of Mr. Subhro Kamal Mukherjee. The decision of the Division Bench of this court in the previous first miscellaneous appeal (91 CWN 1197) not only operates as a res judicata but is also binding as a precedent upon this court.
18. I also do not find any substance in the last contention of Mr. Subhro Kamal Mukherjee that even if the order is erroneous, I should not interfere as the same has not occasioned failure of Justice or caused irreperable injury to the petitioner. In my opinion, if insplte of an order passed by a higher court which is otherwise binding upon the parties, a subordinate court refuses to follow the sald.order, such order occasions failure of justice. Moreover, in the instant case if the order is set aside and an order of preemption is passed in favour of the petitioner, the entire proceeding for partition will come to an end as the plaintiff will be declared full owner of the property after pre-emption and the suit will be disposed of necessiating no further proceeding for final decree. Thus, Clause (a) of the Proviso of section 115 is also attracted in the fact of the present case.
19. The revisional application thus succeeds. The order of the learned trial Judge is set aside. The application for pre-emption filed by the petitioner for purchasing the share of plaintiff No. 2 is allowed. The learned trial Judge is directed to pass all further necessary orders and direction including fixation of valuation in terms of section 4 of the partition Act.
20. Application succeeds