The main legal point established in the judgment is that the right of pre-emption is available only when the transferee initiates proceedings for partition in a dwelling house, and the subsequent demolition of the dwelling house renders the right of pre-emption inapplicable under sec. 4 of the Partition Act.

Navaniti Prasad Singh, J.

1. For the reasons explained in the application of codonation of delay, the delay is condoned. The application is allowed.

2. Heard Mr. Daronachaya, learned counsel for the plaintiff-petitioners and Mr. Shashi Sekhar Dwivedi, learned senior counsel appearing on behalf of defendant-opposite party.

3. The present revision application has been filed by the plaintiff-petitioners against the order dated 11.2.2002 passed by the learned Munsif. Khagaria in a Final Decree Case No. 82/91 arising; from Title Suit No. 82/91 by which the learned Munsif has allowed the application of defendant No. 6 (the sole contesting defendent-opposite party before this court) by which he has held the suit itself to be not maintainable.

4. The facts relevant for adjudication of the case are short and not in dispute. The plaintiff-petitioners along with two others filed a Title Partition Suit No. 82/91 against their brothers and sisters as well as defendant No. 6, who was the purchaser from one of the co-sharers, for parititon of suit property as also for a decree of pre-emption as against defendant No. 6. It is not in dispute that while the suit was pending defendant No. 6 , who had already purchased one share of a co-sharer, purchased the share of all other co sharers except the plaintiff-petitioners. The result is that the plaintiff alone was left with 1/7th share whereas remaining 6/7th share was purchased by defendant No. 6. The applications were filed in this regard by the respective parties. The remaining plaintiffs were transposed as defendants Leaving plaintiff alone as against defendant No. 6 representing share of the other six co-sharers.

5. At this stage defendant No. 6 filed an application (Annexure 1) before the trial court stating the aforesaid facts and prayed that defendant No. 6 has become purchaser of 6/7th share in Schedule A property and plaintiff-petitioners are share holders to the extent of 1/7th share of schedule A property. "...and thus it is subject of partition accordingly in between plaintiff Nos. 1 to 5 and defendant No. 6. That by now this defendant No. 6 who is alone contesting the suit as share holder of 6/7th share of schedule A property is simply submitting to your honour that the suit may be decided in view of provision of sec. 58 of Evidence Act." The prayer in the said application was that the suit may be decided u/s. 58 of the Evidence Act as the claim of Plaintiffs is admitted and scheudle A property be partitioned by appointing a survey knowing Pleader Commissioner at the cost of this defendant.

6. sec. 58 of the Evidence Act lays down that the facts admitted need not be proved. In effect the prayer was as the parties were in agreement of their respective shares, preliminary decree be passed accordingly and partition by metes and bounds be effected and final decree passed accordingly. This application was heard and disposed of by order dated 26.4.1994 by the trial court wherein the shares were decided accordingly i.e. the plaintiffs 1/7th share and defendant No. 6s 6/7th share of the schedule property. So far as the claim of pre-emption with reference to sec. 44 of the Transfer of Property Act and sec. 4 of the Partition Act are concerned, the same was dismissed on the ground that the suit had been instituted by a co-sharer for partition and not by the outsider purchasers. This was with reference to sec. 4 of the Partition Act which would operate only when partition suit is instituted by transferee of share in a dwelling house.

7. The plaintiffs being aggrieved by the said order filed an appeal which was heard and dismissed by the 2nd Additional District Judge by his judgment and order dated 13.3.1996. The plaintiffs then preferred second appeal being Second Appeal No. 157 of 1996 in this court. The same was disposed of by judgment and order dated 10.7.1998. This court held that sec. 4 of the Partition Act is complementary to second part of sec. 44 of the Transfer of Property Act.