The main legal point established in the judgment is that for Section 4 of the Partition Act to apply, the disputed property must be an undivided dwelling house, and the co-owners must have the right to claim pre-emption.

ORDER :-

In this writ application under Article 227 of the Constitution of India, challenge has been made to the order dated 31st January, 1995 passed by the learned District Judge, Cuttack in C.R. No. 120 of 1994 confirming the order dated 16th August, 1994 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Title Suit No. 155 of 1981.

2. The brief facts of the case are as follows :

Present opposite parties 1 and 2 are two sons of one Narana. Opposite parties 3, 4 and 5 are sons and opposite party No. 6 is the daughter of Baraju. Opposite party No. 7 is the daughter of Kusa. Narana, Baraju and Kusa are sons of Dhadi. The disputed land under the Hal Khata No. 401 containing as many as 12 plots is admittedly the ancestral property of Laxman. Plot No. 1435 covering an area of Ac.0.18 decs. stands recorded as 'Ghara'. The nature of the land under plot No. 1434 covering an area of Ac.0.03 decs. stands recorded as 'Bari' and in respect of land covering an area of Ac.0.31 decs. under plot No. 1463 there is no note about its user in the settlement records. Opposite parties 1 and 2 in the year 1981 filed Title Suit No. 155 of 1981 for partition against opposite parties 3 to 6. Kusa the father of opposite party No. 7 in respect of 1/3rd share in the land covered under Khata No. 401. According to the plaint case, the share of opposite parties 3 to 6 is 1/3rd, Kusa the father of opposite party No. 7 is 1/3rd and plaintiffs is 1/3rd. During the pendency of the suit for partition, Kusa died leaving his daughter the present opposite party No. 7. Plaintiffs in the suit specifically stated that suit plot Nos. 1434 and 1435 contain original ancestral residential house as the same became insufficient to accommodate all the family members. Plot Nos. 1434 and 1435 covering an area of Ac.0.21 decs. were amicably partitioned between the three branches of Laxman's family equally. Present opposite parties 1 and 2 got Ac.0.07 decs. of land, opposite parties 3 to 6 got Ac.0.07 decs. of land and opposite party No. 7 got Ac.0.07 decs. of land. Plaintiffs built their new residential house over their portion of land. The other two branches are living separately in their separate house constructed by them over their shares of land allotted to them in the said partition. There was no whisper in the plaint that the land appertaining to plot No. 1463 which is the subject-matter of the present case is being used as appurtenance to the dwelling house and by the time of institution of the suit there was no undivided dwelling house belonging to the three branches. In the suit, none of the defendants appeared in spite of notice and the suit was preliminarily decreed ex parte on 6-1-1983. In the said preliminary decree, it was specifically mentioned that plot Nos. 1434 and 1435 are homestead plots. At the time of final partition, the respective possession of three branches of family as per mutual partition in respect of those two plots should be respected. Subsequent to the aforesaid preliminary decree, there was a Panchayat Faisala on the intervention of the well-wishers of the parties on 18-10-1984. In the said Faisala, final partition of the lands covered under 12 plots under Khata No. 431 was effected and the previous mutual partition of two residential plot Nos. 1434 and 1435 was reflected. In the Panchayat Faisala, plot No. 1463 was partitioned by metes and bounds between the three branches of family in which opposite parties 2, 3 and 5 got Ac.0.16 decs. to their share and all the parties accepted the Panchayat Faisala and put their signatures in the documents. After the said Faisala, the petitioner by registered sale deed dated 21st June, 1985 purchased the said area of Ac.0.16 decs. of land from opposite parties 2, 3 and 5 which had been allotted to their share in plot No. 1463 for consideration of Rs. 5000/-. Since the date of the purchase, the petitioner on the strength of her purchase was possessing the said Ac.0.16 decs. of land. After