Judgement

PATRA, J. :- The short point for consideration in this appeal is whether Section 4 of the Partition Act, 1893 (hereinafter referred to as the Act) is at all attracted in a suit for partition brought, not by a stranger purchaser but by a member of the family who is a co-sharer. The facts which are no more in dispute may be stated. One Bhikari Mantri had two sons - Dama (D. 2) and Bhima. Bhima's wife is Pitei plaintiff No. 3 and her two sons are plaintiffs 1 and 2. Bhima died in 1953 while living joint with his brother and thereafter in 1954, the plaintiff and Dama (D. 2) effected a partition of their landed properties. But their ancestral dwelling house was left undivided, although their respective shares therein were specified in the registered partition deed dated 10-5-1954. On 11-5-1957, defendant No. 2 Dama executed a sale deed in respect of his share in the joint family house in favour of defendant No. 1. On toe strength of the sale deed so obtained, defendant No. 1 created disturbances in respect of the plaintiff's possession of the house. The latter therefore instituted a suit for partition of the undivided house and prayed therein to allow them to purchase the share