The application under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of Property Act, 1882 was not premature and should be reheard by the lower court.

JUDGMENT :

1. Instant petition under Article 227 of the Constitution of India has been filed by the petitioner for quashing the order dated 05.10.2020 passed by Civil Judge (Senior Division) Jamshedpur in Original Title (P) Suit No. 7 of 2015 (Annexure – 4) whereby and whereunder, the learned Civil Judge has rejected the application of petitioner filed under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of Property Act, 1882 on the ground that the said application was premature as no preliminary decree was passed till then in the said partition suit.

2. Heard learned counsel for both the parties.

3. Learned counsel for the petitioner has submitted that petitioner has its strong feeling and emotions attached to the suit property which is a dwelling house and a joint Hindu family ancestral property. The grandfather of the petitioner Mr. S. C. Raisurana along with Mr. K. C. Raisurana, who was the brother of petitioner’s grandfather, had taken lease of the suit property in the year 1932 from respondent no. 4 Tata Steel Limited. The petitioner was born in the year 1953 in the said dwelling house and has grown up and living with his family in the suit property and has many sweet memories with the suit property. It is further submitted that opposite party no. 1/plaintiff has allegedly acquired the shares of the various members of the joint family in the suit property and has filed a suit for partition of the suit property, which is registered as Original Title (P) Suit No. 7 of 2015 which is pending before the court of Civil Judge (Senior Division - I) Jamshedpur. The opposite party no. 1/plaintiff has no emotional attachment with the property under suit rather he is completely stranger to the joint family of the petitioner. It is further submitted that the petitioner, exercising his pre-emptory right to purchase the share of the opposite party no. 1 in the suit property, filed an application under Section 4 of the Partition Act, 1893. Learned counsel for the petitioner has placed reliance upon the judgment of Shub Karn Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and Others reported in (2009) 9 SCC 689 and Ghantewar Ghosh vs. Madan Mohan Ghosh & Others (1996) 11 SCC 446.

4. Per contra, learned counsel for O.P. no. 1/plaintiff has strenuously argued that admittedly the plaintiff has purchased the share of six co-sharers out of seven i.e. 6/7 share of the premises in question vide two registered sale deed dated 05.12.2006 and 05.07.2008 and came into actual physical possession of 6/7 undivided share of the suit premises. The petitioner/defendant no. 1 in his written statement has challenged the suit on various grounds inter alia the maintainability of the suit and the plaintiff witnesses were also examined in the title suit. Admittedly, no preliminary decree has been passed in the suit meanwhile the petitioner /defendant no. 1 has filed an application under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of the Property Act, 1882 praying therein for a direction to the plaintiff for sale of the entire shares of the plaintiff company in suit schedule premises. It is to be pointed out here that since the date of purchase, the plaintiff is coming into possession and running the company office without any hindrance or objection by the defendants. Thus, after purchase of the suit premises and its use and occupation by the plaintiff, the nature of the premises in question has not remained as residential premises but the commercial premises too. It is further submitted that the learned court below has rightly relied upon the judgment of Hon’ble Delhi High Court passed in Indu Singh vs. Prem Choudhary 2018 (3) PCR (civil) 241. Learned counsel for the O.P. placing reliance upon the judgment rendered in Hussan Abbas Syad vs. Usamn Abbas Syad (2007) 2 SCC 355 and submitted that it has been held by the Hon’ble Apex Court that the order of sale is to be passed after drawing up of a final dec