Section 4 of the Partition Act, 1893 is applicable to suits for partition brought by members of an undivided family against stranger purchasers, and the expression "sues for partition" in Section 4 includes both plaintiffs and defendants in a partition suit.

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 of defendant No. 1 on a price to be fixed by the Court.

2. Defendant No. 1, who alone contested the suit averred that there was a partition by metes and bounds between the plaintiffs and defendant No. 2 not only in respect of the agricultural lands, but also in respect of this disputed family house, and that after partition, defendant No. 2 was living in that portion of the family house which was allotted to his share. After defendant No. 2 sold his share in the house to defendant No. 1, the latter remained in possession thereof and after some time demolished the old structure and constructed a new house on that plot of land. According to him therefore a fresh suit for partition in respect of the house is not maintainable. He also contended that he is an agnatic relation of the parties and not a stranger to the family and that therefore the plaintiffs are not entitled to avail themselves of the benefit of Section 4 of the Act.

3. The learned Munsif accepted the case of defendant No. 1 in toto and dismissed the suit. On appeal, the learned Additional Subordinate Judge recorded the finding that the disputed homestead plots and house had not been partitioned by metes and bounds between the plaintiffs and defendant No. 2 and that consequently a fresh suit for partition in respect thereof is maintainable. Although he accepted the plea of defendant No. 1 that he is distantly related to the plaintiffs he held that he is not a member of that family. In view of these findings, he reversed the decision of the trial Court and passed a decree in favour of the plaintiffs for partition and allowed the plaintiffs under Section 4 of the Act to repurchase the share of defendant No. 1 in the family house. Defendant No. 1 has filed this Appeal.

Although the grounds are mainly directed against the finding of the appellate Court that there was no partition by metes and bounds between the plaintiffs and defendant No. 2 in respect or the disputed family house, the learned Advocate appearing for the appellants conceded at the time of hearing that in view of the finding of fact recorded by the lower appellate Court, he cannot agitate this finding in second appeal.

4. The only point of law that was urged before us is that in view of the fact that in this case, the person who has brought the suit for partition is not the stranger purchaser but is one who is a member of the family, Section 4 of the Act is not applicable and consequently, the plaintiffs are not entitled to buy the share of the stranger purchaser, namely, defendant No. 1 in the dwelling house.

5. Section 4 of the Act so far as is relevant may be quoted :-

"4 (1). Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee s