JUDGMENT

RAGHUBIR DASH, J.

1. Being aggrieved by the learned trial court judgment and decree dated 25.02.1989 and 21.03.1989, respectively, passed by the learned Sub-Judge, Khurda in O.S. No. 68 of 1986 decreeing the suit for partition but refusing to grant the relief of repurchase under Section 4 of the Partition Act, the plaintiff preferred the First Appeal before the learned District Judge, Puri in Title Appeal No. 36 of 1989 and the First Appeal being allowed vide judgment and decree dated 13.08.1991 and 29.08.1991, respectively, the stranger purchasers, who were defendant Nos. 1 and 2 in the suit have preferred this Second Appeal.

2. The original respondent No.1 Agadi Bewa is the plaintiff in the suit. Consequent upon her death during pendency of this Second Appeal, her daughter has been substituted and arrayed as R-1(a). The plaintiff’s co-sharers, who have transferred their shares/interest in the suit dwelling house, are D-3 and D-4 in the suit and they are R-2 and R-3 in this Second Appeal.

3. For the sake of convenience and to avoid possible confusion, reference to the parties here-in-after in this judgment will be as per their nomenclature in the plaint cause-title.

4. Facts which are either admitted or not disputed are that the suit land with the building standing thereon is the ancestral dwelling house of the plaintiff and proforma defendant Nos. 3 and 4 in which each of them has got 1/3rd share and that D-3 and D-4 have sold away their respective shares in the suit property to defendant Nos. 1 and 2. It is also not in dispute that D-1 and D-2 are strangers to the family qua the dwelling house and that in the year 1975, after the alienation made by D-3 and D-4 in favour of D-1 and D-2, the plaintiff had filed a suit bearing O.S. No. 17 of 1975 in the court of Munsif, Khurda for permanent injunction to restrain D-1 and D-2 from coming over the suit property which was decreed in favour of the plaintiff. Title Appeal as well as Second Appeal against that decree preferred by D-1 and D-2 were, admittedly, dismissed.

5. Further case of the plaintiff is that despite of the decree passed in the earlier suit D-1 and D-2 forcibly entered into the suit premises and occupied some of the rooms therein. Since the suit house is the undivided ancestral house, she filed the present suit claiming partition and allotment of 1/3rd of suit property to her share and for a direction to D-1 and D-2 to execute a sale deed in her favour in respect of the shares of D-3 and D-4 which they have purchased, calling upon her to pay the same price as D-3 and D-4 had paid to their vendors.

6. D-1 and D-2 in their joint written statement have taken the stand that there was already a partition of the suit property long before they had purchased the shares of D-3 and D-4 and in terms of that partition the plaintiff, D-3 and D-4 had been in exclusive possession of specific portions of the suit premises. Their further plea is that much prior to the plaintiff filing the earlier suit, more specifically, on the date they had purchased the shares of D-3 and D4, they got delivery of possession of their purchased portions of the suit premises. They claim that plaintiff’s plea that despite of the decree passed in the earlier suit D-1 and D-2 forcibly entered into the suit land is false.

On the maintainability of the suit they have pleaded that the subsequent suit is hit under the provisions of Order 2 Rule 2 of the C.P.C. and that in the facts and circumstances of the case plaintiff is not entitled to the rights available under Section 4 of the Partition Act.

7. D-3 and D-4 have jointly filed a separate written statement taking almost identical stand as taken by D-1 and D-2.

8. Learned trial court refused to grant the relief of preemption on the ground that no court-fee for enforcing the right of repurchase was paid and that the suit was not valued for any relief other than for partition. In the First Appeal, learned District Judge overruled the contention tak