A co-sharer cannot invoke the right to repurchase under Section 4 of the Partition Act without the stranger purchaser instituting a partition suit.

JUDGMENT :

A.C. BEHERA, J.

1. This second appeal has been preferred against the reversing judgment.

2. The appellant in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.130 of 1983 and respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.71 of 1989.

The respondent Nos.3 to 7 & 9 to 11 in this 2^nd appeal were the defendant Nos.1 to 8 before the Trial Court in the suit vide T.S. No.130 of 1983 and respondent Nos.2 to 9 before the 1^st Appellate Court in the 1^st appeal vide T.A. No.71 of 1989.

The respondent Nos.1, 2 & 8 in this 2^nd appeal were the defendant Nos.10, 11 & 9 before the Trial Court in the suit vide T.S. No.130 of 1983 and appellants and respondent No.10 before the 1^st Appellate Court in the 1^st appeal vide T.A. No.71 of 1989.

3. The suit of the plaintiff (appellant in this 2^nd appeal) before the Trial Court vide T.S. No.130 of 1983 against the defendants (respondents in this second appeal) was a suit for partition and re-purchase under Section 4 of the PARTITION ACT , 1893.

4. As per the averments made in the plaint of the plaintiff, the case of the plaintiff was that, he (plaintiff) and the defendant Nos.1 to 8 belong to one family hailing from their one common ancestor Gangadhar Sahoo.

5. In order to have a better appreciation, the genealogy (family pedigree), which was given by the plaintiff in Para No.1 of his plaint is depicted hereunder for an instant reference:-

6. The defendant Nos.9 to 12 are the stranger purchasers. As such, they (defendant Nos.9 to 12) are not the family members of plaintiff and defendant Nos.1 to 8.

The properties described in three lots in Schedule ‘A’ of the plaint are the joint and undivided properties of the plaintiff and defendant Nos.1 to 8 and the same are the suit properties. The said suit properties have not been divided/partitioned between them (plaintiff and defendant Nos.1 to 8) at any time as yet through any metes and bounds partition.

The suit plot Nos.2249, 2251 & 2252 are the joint and undivided dwelling house of the plaintiff and defendant Nos.1 to 8. The suit plot No.2250 had/has been using by them (plaintiff and defendant Nos.1 to 8) as Rasta to their aforesaid joint and undivided dwelling house situated on plot Nos.2249, 2251 & 2252. The suit plot No.2247 is their joint and undivided Gadia (Pond) of the plaintiff and defendant Nos.1 to 8. Their ancestral house was over suit plot No.2248, which was collapsed in the last cyclone of the year 1982.

When, the stranger defendant Nos.9 to 12 tried to enter into their undivided dwelling house vide Plot Nos.2247, 2248 & 2250 claiming that, their predecessor Jagabandhu Palei had purchased the same from defendant No.1 (Kangali Sahu) and as the defendant Nos.9 to 12 have no right to enter into and possess the joint and undivided dwelling house of the plaintiff and defendant Nos.1 to 8, then without getting any way, the plaintiff approached the Civil Court by filing the suit vide T.S. No.130 of 1983 praying for partition of his legitimate share along with the shares of the defendant Nos.1 to 8 from the suit properties and also prayed for passing a decree entitling him (plaintiff) to re-purchase the properties, those were sold by the defendant No.1 from plot Nos.2247, 2248 & 2250 to the predecessor of the defendant Nos.9 to 12 i.e. Jagabandhu Palei along with other reliefs, to which, he (plaintiff) is entitled for.

7. Having been noticed from the Trial Court in the suit vide T