Section 4, Partition Act applies to suits for partition brought by a member of the family who is a co-sharer or "share-holder", and is not restricted to suits brought by the stranger purchaser as plaintiff.

( 1 ) THIS appeal is directed against a concurrent decree of the two courts below, allowing the plaintiff-respondent's alternative claim for pre-emption under Section 4, Partition Act.

( 2 ) THE suit properties (C. S. plot No Section 113, 114 and 116) which constitute the undivided family dwelling house of the plaintiff and his brother Kangsari Mohan Karmakar, the predecessor of respondents Nos. 2 and 3, belonged to them in equal moiety shares. In 1930, the present defendant-appellant (who was a stranger to the family) auction-purchased Kangsari's. half share of the suit properties. He got symbolical possession sometime in April, 1930, but he failed to get actual possession. Thereupon, he brought a suit (Title Suit No. 55 of 1931) against Kangsari and the present plaintiff for 'inter alia' joint possession of the suit properties along with the present plaintiff and, having recovered an 'ex parte' decree on 30-11-1931, he took joint possession by removing the huts of Kangsari, sometime in 1946. In the meantime, the present plaintiff had instituted a suit (Title Suit No, 280 of 1945) for the setting aside of the above 'ex parte' decree but it was unsuccessful up to the appellate Court which dismissed his appeal on 1-3-1947. He then brought the present suit on 28-2-1948.

( 3 ) IN the suit, the plaintiff's prayers were for declaration that the present appellant who was the principal defendant (No. 1) was not entitled to have joint possession of the suit properties and for an appropriate injunction and, alternatively, for pre-emption of Kangsari's half share, purchased by this stranger defendant (No. 1), under Section 4, Partition Act in the course of a partition proceeding,

( 4 ) THE suit was resisted by defendant No. 1 and various defences, including pleas of limitation and adverse possession as also previous amicable partition and separate possession, at least, since 1947, were raised on his behalf. At the earlier stages, it was also contended by the defence that the suit properties did not constitute the undivided family dwelling house of the two brothers, Kangsari and the present plaintiff, but this contention has rightly been given up before me. The defence pleas of limitation and adverse possession and of previous amicable partition and separate possession since 1947 have also been concurrently negatived by the two Courts below and, in view of the materials on record, which overwhelmingly support the said findings, these pleas have not been repeated in this Court. The appellant has now concentrated on his other two defences, namely, "res judicata' and the inapplicability of Section 4, Partition Act to the present case and the rejection of these two defences by the Courts below in the facts of this case has been seriously assailed before me and they are the only points, requiring consideration in this appeal.

( 5 ) BEFORE taking up the two points, enumerated above, I ought to mention here that the plaintiff's first prayer for declaration and injunction has been refused by the lower Courts and his suit has succeeded only on his alternative prayer under Section 4, Partition Act. As the plaintiff is making no protest and as the plaintiff's first prayer appears to be barred by 'res judicata' also, it is unnecessary for me to consider the conflict between the two decisions of this Court, reported in -- 'lal Behari Samanta v. Gourhari, Dawn', and -- 'jogendra Nath v. Adhar Chandra', or to examine the exact scope and effect of the earlier decision in the case of -- 'rajani Kanta Sen v. Sita Kumari', 46 Cal WN 407 (C ).

( 6 ) THE defence plea of 'res judicata' is certainly available but only to a limited extent. It is undoubtedly an effective answer so far as the plaintiff's first prayer is concerned. In view of the 'ex parte' decree in Title Suit No. 55 of 1931 which the present plaintiff has failed to dislodge in his subsequent suit (Title Suit No. 280 of 1945), it is no longer open to him to resist the defe