The relief sought in an application must align with the main relief sought in the suit, and the rights of co-sharers and subsequent purchasers in seeking partition and separate possession are determined by the provisions of the Partition Act, 1893 and the Transfer of Property Act.

1. Challenging the order and decretal order, dated 21.10.2008 passed in I.A. No.18017 of 2003 in O.S. No. 4818 of 1994 on the file of the XIV Assistant Judge, City Civil Court, Chennai, this Revision has been preferred.

2. The Revision Petitioner is the Plaintiff in the Suit. The Suit was filed by the Petitioner/Plaintiff, seeking for a Judgment and Decree, declaring that the Plaintiff is entitled to 1/6th share in the suit property and to appoint an Advocate-Commissioner to divide and allot the 1/6th share to the Plaintiff. If it is not capable of division, direct the Advocate –Commissioner, so appointed to sell the plaint schedule property and to pay 1/6th share of the sale proceeds to the Petitioner/Plaintiff.

3. Subsequently, the Interlocutory Application in I.A. No. 18017 of 2003 was filed by the Petitioner/Plaintiff, under Sections 3 and 4 of Partition Act, 1893, whereby the Petitioner/Plaintiff sought a direction to fix the value of 5/6th share of the Respondents/Defendants of the suit property and sell the same for the sum so ascertained or alternatively direct the Respondents to sell their 5/6th share of the suit property in favour of the Petitioner/Plaintiff of Rs.4.5 lakhs.

4. By the impugned order, the Application filed by the Petitioner/Plaintiff was dismissed by the Court below. Aggrieved by which, this Civil Revision Petition has been filed.

5. Learned Counsel appearing for the Petitioner submitted that the Petitioner is entitled to 1/6th share and the Respondents/Defendants are only subsequent purchasers of 5/6th share in the plaint schedule property, hence, the Petitioner is entitled to purchase 5/6th share, being a co-sharer of the undivided property, as per Section 44 of the Transfer of Property Act. According to the learned Counsel for the Petitioner, the Court below has not considered the scope of Section 44 of the Transfer of Property Act property and further contended that the relief under Section 4 of the Partition Act is available to the Petitioner, being a co-sharer, however, the Interlocutory Application filed by him was dismissed. In support of his contention, the learned Counsel appearing for the Petitioner cited the following decisions:

1. Gyan Chand & Anr. V. Sumat Rani & Ors., 2002 (9) SCC 477 : AIR 2002 SC 2434 : 2002 (3) Supreme 70;

2. Ramaswami v. Subramania, AIR 1967 Mad. 156;

3. H.N. Mukharjee v. Shyam Sunder Kuer, AIR 1973 Pat. 142;

4. Ghantesher Ghosh v. Madan Mohan Ghosh, AIR 1997 SC 471;

5. Babulal v. Habibnoor Khan, 2000 (5) SCC 662 : AIR 2000 SC 2684;

6. Sennammal v. Natarajan, AIR 1967 Mad. 76;

7. Alekha v. Jagabandhu, AIR 1971 Ori. 127.

6. Per contra, Mr. J.R.K. Bhavanantham, learned Counsel appearing for the eighth Respondent/purchaser submitted that the Revision Petition filed by the Petitioner/Plaintiff is not legally maintainable and according to him, there is no legal cause of action for filing the Suit. In support of his contention, the learned Counsel for the Respondents cited the following decisions :

1. Gautam Paul v. Debi Rani Paul, 2000 (4) CTC 503 (SC) : AIR 2001 SC 61 : 2000 (8) SCC 330;

2. Gyan Chand v. Sumat Rani, 2002 (9) SCC 477 : AIR 2002 SC 2434.

7. In Gyan Chand & Anr v. Sumat Rani Ors, 2002 (9) SCC 477 : AIR 2002 SC 2434 : 2002 (3) Supreme 70, Hon’ble Supreme Court has held that a right of co-sharer under Section 4 of the Partition Act, is available only if the transferee files a Suit for partition. Relying on the decision, Gautam Paul v. Debi Rani & Ors., 2000 (4) CTC 503 (SC) : AIR 2001 SC 61 : 2000 (8) SCC 330, the Hon’ble Apex Court has held as follows :

“This Court in the above said case reversing the view taken by the Calcutta, Patna, Nagpur and Orissa High Court, has held that so long as the stranger purchaser does not seek actual division and possession either in the Suit or in executing proceedings, a co-sharer cannot in a Suit, brought for partition by him or by another co-sharer, exercise the right under Section 4 of the Partition Act.