ORDER

The short question posed for our consideration in this appeal on grant of special leave under Article 136 of the Constitution of India is as to whether application moved under Section 4 of the Partition Act, 1893 (For short the Act ) by respondent No. 1, who was the decree-holder in the partition suit, was maintainable in law.

2. A few facts leading to this appeal are required to be noted at the outset to appreciate this controversy between the parties.

3. Respondent No. 1 had brought a suit for partition and separate possession of his 1/4th share in a dwelling house situated at Indore in the State of Madhya Pradesh. The said dwelling house consisted of two portions belonging to an undivided family. One portion out of the two portions of the house had been sold to non-applicant No. 3 before the High Court Babu Rao who was a stranger to the family and the rest portion of it had been bought in a court auction in execution of a mortgage decree by one Kundanbai, whose legal representative is the present appellant Babu Lal. The suit filed by respondent No. 1 was dismissed by the Trial Court, but, in appeal a preliminary decree was passed for partition and separate possession of plai