ANUKUL CHANDRA SADHUKHAN Vs. AJIT KUMAR SADHUKHAN

JUDGEMENT

(1.) The plaintiff-appellant filed a partition suit on 16-2-1977 along with the prayer for relief under Section 4 of the INDIAN PARTITION ACT, 1893 in respect of the purchase made by the defendant Nos. 1 and 2 on 25-1-1977. The plaintiff alleged that the properties described in Schedule 'Ka' and 'Kha' of the plaint constituted their ancestral dwelling house and the defendant Nos. 1 and 2 had purchased a portion of the same by the aforesaid deed dated 25-1-1977. Since the respective shares of the parties were not in dispute, so the suit was decreed in its preliminary form on contest but the petition under Section 4 of the INDIAN PARTITION ACT, 1893 as filed by the plaintiff appellant was dismissed on merits. Such dismissal by the trial Court was challenged in appeal. The Court of appeal below affirmed the said order of dismissal. The present second appeal arises out of the judgment and order of dismissal of the said petition under Section 4 of the INDIAN PARTITION ACT, 1893 as filed by the plaintiff appellant. This Court for the purpose of disposal of the above appeal formulated the following substantial questions of law :

(2.) At the outset, it may be stated that if on the first question it is held that the application by a co-sharer plaintiff in the said partition suit was not maintainable, then the 2nd question need not be answered.

(3.) The first question of law as formulated by this Court obviously arises in view of the recent Supreme Court decision reported in (2000) 8 SCC 330 : (AIR 2001 SC 61) (Gautam Paul v. Debi Rani Paul) wherein it has been held that the right to pre-empt a purchase made by stranger does not arise till such stranger purchaser sues for partition.