The main legal point established in the judgment is that the right of re-purchase under Section 4 of the Partition Act is available only to co-sharers who have not sold the property, and a co-sharer who has sold a portion of the joint family dwelling house cannot exercise this right.

( 1 ) THE point of law that is raised in this case is as to whether a co-sharer of a joint family property after alienating a portion thereof in favour of a stranger to the joint family can opt for re-purchase along with the other co-sharers in consonance with section 4 read with sub-section (2) of section 3 of the Partition Act.

( 2 ) TO answer the said question, it would be necessary to discuss the factual matrix in brief. One Balu Malik was the original owner of the land appertaining to plot No. 87 under khata No. 234 situate in Mouza bidyadharpur of Cuttack district and the residential house of the family exists on a portion of the said land. Balu died in the year 1940 leaving behind him two sons, namely, Purna Chandra Mallik (present petitioner), Bhagirathi Mallik and a grandson namely Nrusingha Mallik (son of his predeceased son Gangadhar ). Bhagirathi and Nrusingha having joined hands sold a portion of the aforesaid joint family dwelling house to one Smt. Renuka jena (present opposite party No. 1 ). Since renuka could not take possession of the portion of the said dwelling house, she filed title Suit No. 658 of 1988 in the Court of thee Civil Judge (SD ). 1st Court, Cuttack, impleading Purna Chandra Mallik (present petitioner) as defendant No. 1, Bhagirathi mallik as defendant No. 2, and Nrusingha mallik (present opposite party No. 5) as defendant No. 3, and praying inter alia :

(i) For partition of suit schedule 'a' land by metes and bounds and allot schedule 'a-1' land which has been purchased by the plaintiff under the aforesaid sale deed from defendants 2 and 3 (Bhagirathi and nrusingha) to be allotted in her share.

(ii) Possession of her allotted land be given to her through Court, and

(iii) In the event it is found that there was earlier partition of schedule 'a' land by metes and bounds, title of the plaintiff over schedule 'a-1' land be declared and her possession be confirmed and if she is found to have been dispossessed from schedule 'a'-1 land decree for recovery of the same through process of the Court be passed along with other reliefs. "

( 3 ) AFTER receiving notice of the suit, present petitioner Purna Chandra Mallik, who is defendant No. 1 in the suit, filed his written statement repudiating the averments of plaintiff-Renuka in the plaint and taking a specific stand that the joint family dwelling house of all the defendants standing on the suit land has never been partitioned and the plaintiff who does not belong to the family of the defendants has no right of joint possession of the said house. The other two defendants, namely, bhagirathi defendant No. 2 and Nrusingha defendant No. 3 filed their joint written statement admitting the claim of the plaintiff.

( 4 ) THE records reveal that during pendency of the suit, Bhagirathi defendant No. 2 having expired his widow Labanya and three sons were substituted in his place as defendant Nos. 2 (a) to 2 (d) respectively. In the meanwhile Labanya, defendant No. 2 (a), has also expired. After filing their written statements the defendants having not contested the suit, they were set ex parte and an ex parte judgment decreeing the suit has been passed. Thereafter final decree proceeding was initiated which is still pending before the Court below.

( 5 ) IN the final decree proceeding, defendant No. 1 Purna, present petitioner, filed an application under Section 4 of the Partition Act praying to fix the consideration amount of the portion of the dwelling house sold by original defendant No. 2 Bhagirathi and defendant No. 3 Nrusingha to plaintiff renuka who was a stranger transferee and to direct Renuka to transfer the said portion of the dwelling house in his (defendant no. 1) favour and for other ancillary reliefs. The prayer of defendant No. 1 was resisted by plaintiff-Renuka.

( 6 ) THE Court below by its order dated 22-8-2008 in the final decree proceeding allowed the petition of defendant No. 1 Purna and directed the parties to produce the relevant documents f