The main legal point established in the judgment is that the application of Section 4 of the Partition Act, 1893 is contingent upon specific conditions, including the property belonging to an undivided family and the filing of a partition suit. The judgment also emphasizes the principle that a person cannot both accept and reject the same transaction and the courts are meant for imparting justice between the parties.

Heard the learned senior counsel, Mr. S.S. Dvivedi for the petitioners and the learned counsel, Mr. J.S. Arora for the respondents.

2. This application under Article 227 of the Constitution of India has been filed by the decree holders-petitioners against the order dated 15.05.2012 passed by Sub Judge I, Kaimur in Miscellaneous Case No. 83 of 1997 whereby the learned Court below allowed the Miscellaneous Case filed by the opposite parties under Section 47 read with 151 C.P.C. and Section 4 of the Partition Act, 1893.

3. For the purpose of disposal of this writ application, the facts may be stated briefly that Bagedi Seth, Ramadhar Seth and Bikarma Seth, the three brothers had purchased disputed land by registered sale deed dated 14.09.1968. Thereafter, there was partition between them by a registered partition deed dated 16.06.1976. After partition, they came in possession of their respective shares. It appears that subsequently Bagedi Seth firstly entered into agreement to sale to the ancestors of the petitioners on 10.12.1977 and then by registered sale deed dated 06.06.1978 sold the present disputed land to the ancestors of the petitioners. After purchase, according to the petitioners, the purchasers came in possession. Subsequently, the petitioners were dispossessed by Ramadhar Seth. The said Ramadhar Seth filed Title Suit No.264 of 1978 for specific performance of contract against Bagedi Seth and ancestors of the present petitioners alleging that Bagedi Seth had entered into agreement on 29.09.1976 to sell his share in Rs.8,000 out of which, Ramadhar had already paid Rs.5,000/-.

4. The petitioners filed Title Suit No. 21 of 1979 for declaration of title and recovery of possession on the facts aforesaid. Both the suits i.e. suit filed by Ramadhar for specific performance and Title Suit No. 21 of 1979 were heard together and the suit for specific performance was dismissed whereas Title Suit No. 21 of 1979 was decreed in favour of the petitioners. Two title appeals were filed being Title Appeal No.1/15 of 1980 and 2/16 of 1980 and both the title appeals were dismissed by the appellate Court then Ramadhar filed two Second Appeals before the High Court and the High Court after setting aside the judgments remanded to the trial Court for fresh decision. The trial Court again by terms of judgment and decree dated 04.07.1986 dismissed Title Suit No. 264 of 1978 i.e. suit for specific performance and decreed the title suit of the petitioners i.e. Title Suit No. 21 of 1979. Against the said judgment and decree, Ramadhar has filed two title appeals being Title Appeal No.25 of 1986 and Title Appeal No. 26 of 1986 which are still pending for hearing.

5. It further appears that in the meantime, for execution of the decree passed by the trial Court, Execution Case No. 5 of 1997 was filed by the present petitioners for recovery of possession. In this execution case, the judgment debtor filed application under Section 47 and 151 of C.P.C. read with Section 4 of the Partition Act which was registered as Miscellaneous Case No. 83 of 1997. By the impugned order, the court below has allowed this Miscellaneous Case and directed the petitioners to execute the sale deed in favour of Ramadhar Seth after payment of Rs.2,50,000/-.

6. Notices were issued to the respondents. At the time of hearing of this writ application in admission matter, the learned counsel, Mr. J.S. Arora raised preliminary objection to the maintainability of this writ application under Article 227 of the Constitution of India. According to the learned counsel, the order has been passed under Section 4 of the Partition Act, 1893 which is a deemed decree according to the provision as contained in Section 8, therefore, the petitioners should have filed regular appeal before the appellate Court.

7. On the other hand, the learned senior counsel, Mr. S.S. Dvivedi submitted that Section 4 of Partition Act is not applicable in the present case, as such, the Executing Court who was to