JUDGMENT : Misra, J. - Gopi Balabantra had three sons - Uchhab (Plaintiff No. 1), Krupasindhu (Plaintiff No. 2) and deceased Narasingh. Defendant No. 2 is the widow, Defendant No. 1 is the son's widow and Defendant No. 3 is the son's daughter of Narasingh. Plaintiffs' case is that 13.55 acres of land belonged to the entire joint family. In a family partition between the three brothers, the disputed land described in Schedule 'Kha' fell to the share of Narasingh for convenience of possession. On 13-3-1961, Defendants Nos. 1 to 3 entered into an agreement for sale with the Plaintiffs of plots 247 with an area 07,581 with an area 0.18, 952 with an area 0'63 and 733 with an area 0'12, in all one acre of land for Rs. 500/ - an took and advance of Rs. 100/ - for the purpose. On 30-4-1962, Defendants Nos. 1 to 3 executed a registered sale deed in favour of Defendant No. 4 in respect of 2.58 acres as described in Schedule 'Kha'. Oat of these suit lands, plot No. 552 constitutes .03 acre and plot 553.06 acre. No. relief was sought on the basis of the aforesaid agreement. Plaintiffs averred that under the Nayagarh Land Transfer Rule (hereinafter referred to as Nayagarh Rule), Plaintiffs', who are admittedly the recorded co-sharers, were entitled to pre-emption and further that with regard to the homestead land, Section 4 of the Partition Act had application. Defendant No. 4 contested the suit claiming title on the basis that Nayagarh Rule was contrary to the provisions of Orissa Merged States (Laws) Act, 1950 (hereinafter referred to as the Act) and has no legal validity. 2. The learned trial Court held that plot 552 was not the homestead (Gharbari) but constituted a part of the agricultural lands. It declared the Nayagarh Rule as invalid and decreed the Plaintiffs' suit in respect of plot 553 with an area .06 acre only u/s 4 of the Partition Act. The suit in respect of the residual land in 'Kha' Schedule which constituted the entire disputed land was dismissed. Defendant No. 4 did not carry an appeal against the adverse decree in respect of plot No. 553. The trial Court's decree granting relief u/s 4 of the Partition Act accordingly become final and conclusive. The only question that was canvassed in appeal was whether the relevant Nayagarh Rule was valid in law. Defendant No. 4 did not carry an appeal against the adverse decree in respect of plot No. 553. The trial Court's decree granting relief u/s 4 of the Partition Act accordingly become final and conclusive. The only question that was canvassed in appeal was whether the relevant Nayagarh Rule was valid in law. After holding that it was valid, the suit was decreed by the learned lower appellate Court in respect of agricultural lands on the finding that the Plaintiffs were entitled to pre-emption. Against this conclusion, the second appeal has been filed by Defendants Nos. 2 and 4. 3.Mr. Misra advanced two contentions: (a) That the Nayagarh Rule granting right of preemption is unconstitutional as it imposes an unreasonable restriction on the right to acquire, hold and dispose of property and the guarantee under Article 19(1)(f) of the Constitution; and (b) The Nayagarh Rule 4(ii) in case of transfer by sale of a share of an undivided joint family holding first preference shall be given to a recorded co-sharer-is contrary to Section 7(b)(i) of the Act. 4. The first contention of Mr. Misra has no force. In Bhau Ram Vs. B. Baijnath Singh their Lordships made a distinction, between pre-emption on the ground of vicinage and that in favour of a co-sharer. They came to the conclusion that a right of preemption based on co-sharership is a reasonable restriction on the right to acquire, hold or dispose of property and is in the interest of the general public. The impugned Nayagarh Rule of preemption based on co-sharership cannot therefore be held to be unconstitutional as being contrary to Article 19(1)(f) of the Constitution. 5. To appreciate the second contention, it would be pertinent to extract the relevant provision in Section 7 of the Act: 7. Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Article 4 of the States Merger (Governors Provinces) Order, 1949- (a) ... ... ... (b) an occupancy tenant shall be entitled (i) to freely transfer his holding.... Rule 4(ii) of the Nayagarh Rule on the other hand lays down that in case of transfer by sale of a share of an undivided joint family holding, first preference shall be given to a recorded co-sharer. ... ... (b) an occupancy tenant shall be entitled (i) to freely transfer his holding.... Rule 4(ii) of the Nayagarh Rule on the other hand lays down that in case of transfer by sale of a share of an undivided joint family holding, first preference shall be given to a recorded co-sharer. If the relevant rule of the Nayagarh Rule is compared with the corresponding provision in the Act, it would be patently clear that the rule imposes restriction on the free transfer of the holding contrary to Section 7(b)(i). By virtue of the non-obstante clause, in case of repugnancy the Act would prevail. This matter is no longer res integra. In Daka Bagartia v. Mukunda Khamari 17 C.L.T. 27, a Division Bench of this Court examined the corresponding provision in Section 10 of the Administration of Orissa States Order, 1948, which is, so far as the material part is concerned, identical with Section 7(b)(i) of the Act. Their Lordships observed While allowing the tenancy laws in force in any of the Orissa States prior to the commencement of the Order to continue, it provides that it shall continue to remain in force subject to the provisions of this Order. Therefore, so much of it as interferes with the very transfer of an occupancy holding is no longer a good law The aforesaid observations with regard to some rules in Sonepur Bhumibidhi apply with full force to this case. The relevant Nayagarh rule is no longer a good law, in view of the provisions in Section 7 of the Act and it cannot be enforced by a Court of law. If the relevant rule granting pre-emption in favour of co-sharers under certain circumstances be struck down as not being good law, the sale by Defendants Nos. 1 to 3 in favour of defend and No. 4 must stand. 6. It may be clarified that in the plaint itself, Plaintiffs state that there was no partition by metes and bounds in the family. Defendants Nos. l to 3 therefore cannot be said to have exclusive and full title in respect of the lands allotted to their shares. But as they were in possession for the sake of convenience and they had transferred those lands to Defendant No. 4, the latter would be allowed to continue in possession of the said lands. Defendants Nos. l to 3 therefore cannot be said to have exclusive and full title in respect of the lands allotted to their shares. But as they were in possession for the sake of convenience and they had transferred those lands to Defendant No. 4, the latter would be allowed to continue in possession of the said lands. Acquisition of full title by partition amongst the different co-sharers would be determined in a properly constituted partition suit. 7. In the result, the judgment and decree passed by the lower appellate Court are set aside and those of the trial Court are restored. The appeal is allowed. In the circumstances, parties to bear their own costs throughout. Final Result : Allowed