JUDGMENT :

K.R. Mohapatra, J. - This appeal has been filed assailing the judgment and decree dated 24.01.2000 and 11.02.2000 respectively passed by the learned 1st Additional Civil Judge (Senior Division), Cuttack in T.S. No.15 of 1979. During pendency of the suit, the original plaintiff, namely, Rama Chandra Prusty died and his legal heirs (the appellants herein) were brought on record who prosecuted the suit.

2. The suit was filed for a decree for partition of schedule 'B', 'D' and 'E' properties of the plaint as per the compromise petition filed by the plaintiff, defendant Nos. 2, 3, 4, 11, 13, 14 and 15 and also for a decree holding that the entire 'C' schedule property is the exclusive property of the plaintiff. The plaintiff further prayed that in case 'C' Schedule property is held to be joint family property of Rama Chandra Prusty (the original plaintiff) and his deceased father (defendant No.1), namely, Bidyadhar Prusty and the same being homestead property, the plaintiffs have got a right to repurchase the same under Section 4 of the Partition Act through the process of Court.

3. One Krushna Prusty was the common ancestor, who died leaving behind three sons, namely, Kartika, Panu and Banchhanidhi. B' schedule property was the ancestral properties of the parties in which surviving members of each of the three branches had ?rd interest. Nidhi and Bidyadhar, the sons of Kartika, effected a partition of movables in the year 1932 in which Bidyadhar had got some cash and five mahan of bell metals and they separated themselves in mess, but the family of defendant No.1, namely, Bidyadhar remained joint. Bidyadhar-Defendant no. 1 was the Karta of the family. Defendant No.1 acquired 'C' schedule property with a thatched house thereon from out of joint family nucleus, more particularly from the cash and movables he got in partition. Though 'C' schedule property was acquired in the name of Bidyadhar, the same was treated to be the joint family property as Bidyadhar amalgamated the same with 'B' schedule property. As the ancestral dwelling house was in a dilapidated condition, the defendant No.1, his wife Suma and the plaintiff moved to the newly purchased house situated over 'C' schedule property and stayed therein till 1955 when the house collapsed due to heavy rain. Thereafter, the defendant No.1 and other family members came back to the ancestral house after making some repairing therein and the 'C' schedule property was being used as 'Bari' (kitchen garden). There was an open latrine over the 'C' schedule property which was being used as such by the family members. Defendant No.2, namely, Makara, the natural brother of the plaintiff, immediately after his birth was given in adoption to Kokila, the daughter of Banchhanidhi. After the death of the adoptive parents, defendant No.2 started residing with defendant No.1 over 'B' schedule properties. Subsequently, the plaintiff and defendant No.1 constructed a pucca house over 'C' schedule property. Defendant No.1 in order to deprive the plaintiff from his share over 'C' schedule property sold the same to defendant No.10, a stranger to the joint family, without any legal necessity. Such sale was nominal and sham transaction. When the said fact came to the knowledge of the plaintiff, the plaintiff demanded partition to which Bidyadhar turned a deaf ear. Hence, he filed the suit for the aforesaid relief.

4. Defendant Nos. 1 and 2 filed joint written statement, but subsequently they did not contest the suit. Defendant No.10 filed his written statement denying the plaint allegations and stated that 'C' schedule property originally belonged to one Moti Bewa and defendant No.1 had entered into an agreement to purchase the same from her. When said Moti Bewa did not execute the sale deed as agreed upon, defendant No.1 filed the suit for specific performance of contract in the Court of Ist Munsif, Cuttack. The suit was decreed in favour defendant no.1 and the sale deed was executed in his favour