A member of an undivided family is entitled to relief under Section 4 of the Partition Act, 1893, to buy the share of a stranger transferee in a dwelling house belonging to the undivided family.

JUDGMENT :- The plaintiff is the appellant, in this second appeal, from a decision of the learned District Judge of Cuttack, whereby he dismissed the plaintiffs appeal from a decision of the learned Munsif of Cuttack, and held that the plaintiff is not entitled to any relief under Sec. 4 of the Partition Act (Act IV of 1893) on the facts and in the circumstances hereinafter stated.

2. The suit property relates to one residential Gharbari plot in which the plaintiff and his brother the defendant No. 4 have jointly eight annas share and the defendant No. 1 had the remaining eight annas share therein, which ultimately was sold to the defendants Nos. 2 and 3 as hereinafter stated. A geneological table showing the relationship of the parties, - other than defendants 2 and 8, who are outsiders - is set out as follows :

The plaintiffs case, shortly stated, is this : There was no partition of the family by metes and bounds; there was, however, severance of the joint family being separate only in mess and residence; the plaintiff and his brother, for convenience have been living on the western part of the Gharbari plot and defendant No. 1, the other co-sharer residing on the eastern portion of the plot. The facts leading to the present litigation are these : In 1928 defendant No. 1 executed a registered mortgage bond in respect of his undivided eight annas share in favour of one Nidhi Swain; the said Nidhi Swain enforced the mortgage by filing a suit for sale, and in 1946 he purchased the said undivided share of defendant No. 1 in the suit property in execution of a mortgage decree in Execution Case No. 128 of 1956; on September 19, 1947 the said Nidhi Swain took formal delivery of possession (Ex. A sale certificate), on March 5, 1948, Nidhi sold the said undivided eight annas share by a registered sale deed (Ext. 1) to defendants 2 and 3.

On June 23, 1954 the plaintiff filed this suit for partition and also for relief to buy up the share of defendants 2 and 3 on a reasonable valuation in his right of pre-emption under Sec. 4 of the Partition Act. In the suit his brother Panu Maharana was made a party as pro forma defendant No. 4. The defence taken in the suit, was that there was a partition by metes and bounds 25 years ago and that Sec. 4 of the Partition Act had no application to this case.

3. The trial Court found that the defence plea of partition by metes and bounds is not true, because the story of alleged partition 25 years ago cannot be believed, having regard to the mortgage of undivided eight annas share by the defendant No. 1 in favour of Nidhi Swain as aforesaid in 1928, and the registered sale deed dated March 5, 1949 executed by Nidhi Swain in respect of the said undivided eight annas share in favour of the defendants 2 and 3 (Ext. 1); thus having regard to the fact that both the mortgage and sale where in respect of the undivided eight annas share, there could not have been any partition by metes and bounds.

With regard to the applicability of Sec. 4 of the Partition Act, the trial court found that the portion of the dwelling house, - where the defendant No. 1 was living, - was vacant as the house was dismantled; so, this being a vacant land, it could not be a part of the dwelling house; accordingly, although there was no partition by metes and bounds, Sec. 4 of the Partition Act was held not applicable to the case; in the result the trial Court passed a decree for partition of eight annas share in the property but relief under Section 4 of the Partition Act was disallowed.

The plaintiff filed an appeal to the lower appellate Court against the said decision of the trial Court, refusing relief under Sec. 4 of the Partition Act. The learned lower appellate Court dismissed the said appeal and held that the plaintiff is not entitled to any relief under Sec. 4 of the Partition Act on the grounds as stated in his judgment. Hence this second appeal.

4. The points as urged on behalf of the plaintiff appellant, are these : The learned l