The judgment established that the right of repurchase under Section 4 of the Partition Act is only available when the transferee sues for partition and separate possession of the undivided share transferred to him by the co-owner concerned.

JUDGMENT :

This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Jajpur in Title Appeal No. 34 of 1994 setting aside the judgment and decree passed by the learned Civil Judge (Junior Division), Jajpur in T.S. No. 366 of 1989.

The appellant as the plaintiff had filed the suit for partition of the land measuring Ac0.07 decimals under plot no. 1899 khata no.110 of mouza Kelanga and claiming allotment of eastern side portion of the land extending to Ac0.01 decimals 7½ links to him towards the share of his vendor. The suit having been decreed granting relief to the appellant-plaintiff under section 4 of the Partition Act to repurchase the said land from the defendant-respondent no.2, the appeal had been filed by the aggrieved plaintiff. The appeal and the suit for partition having been allowed, the present Second Appeal has been filed by the un-successful defendant no.2. He having died during pendency of this appeal, his legal representatives are pursuing the appeal.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.

3. Plaintiff’s case is that originally the suit recorded in the name of Netrananda Biswal. He died leaving behind his three sons, namely, Nityananda; defendant no.1, Gopal; defendant no.2 and Govinda who is the father of defendant nos. 3 to 5. It is stated that the ancestral dwelling house of the plaintiff is situated adjoining the suit land on its eastern side. The suit land on a particular portion adjoins the ancestral land of the plaintiff extending to Ac0.01 decimals 7½ link was lying vacant. In the year 1969, the plaintiff with his co-sharers had partitioned his own homestead land and the dwelling house. At that time it was detected that the ancestral dwelling house with the cowshed of the plaintiff’s family was covering a portion of land measuring Ac 0.01 decimals 7½ links of the land owned by Netrananda. It is stated that said land was thus in possession of the plaintiff’s father and thereafter with the plaintiff. When this fact came to light, the defendant no.1 and Govinda agreed to sell the said land in favour of the plaintiff. So, a registered sale deed was executed on 25.06.1969 on receipt of agreed consideration. The suit land was accordingly mutated in the name of the plaintiff on the strength of said purchase. It is alleged that some time during the month of December, 1989, defendant no.2 created disturbance in possession of the plaintiff over the suit land. So, the suit for partition had to be filed by the plaintiff so as to avoid any such unpleasant situation and dispute in future.

4. The defendant no.2 while traversing the plaint averments has averred that the land standing recorded in the name of Netrananda was all along being used as bari of the joint family and they had also a cowshed over it. When defendant no.2 remained behind the bar having been arraigned in a criminal case from the year 1964 to 1971, he could not do anything over the suit land. However, after his release, he constructed a house over the suit land and have been residing over there. He denied the factum of encroachment of the land by the plaintiff’s father and that to have been continued by the plaintiff. He attacked the registered sale deed as collusive and nominal one coming into being during his absence and taking the advantage of the same. He denies his total knowledge about the said registered sale deed. It is his case that the plaintiff had never acquired the right, title, interest or possession over the suit land on the strength of said sale deed. Ultimately, it is stated that the sale deed if found to be valid, the land being part of the undivided dwelling house of the joint family of the defendants and he being ready and willing to pay the market price of the same is entitled to get the relief of repurchase. Also the claim remains in the alternative th