JUDGMENT : Misra, J. - Gopi Balabantra had three sons-Uchhab (Plaintiff-I), Krupasindhu (Plaintiff-2) and deceased Narasingh. Defendant-2 is the widow, Defendant-l is the son's widow and- Defendant- 3 is the son's daughter of Narasingh. Plaintiff's 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 13-3-1901, Defendants 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/ - and took an advance of Rs. 100/ - for the purpose On 30-4-1962, Defendants 1 to 3 executed a registered sale deed in favour of Defendant-4 in respect of 2.58 acres as described in schedule Kha. Out of these suit lands, plot 552 constitute .03 acre and plot 553 .06 acre. No relief was so right on the basis of the aforesaid agreement. Plaintiffs averred that under the Nayagarh Land Transfer Rule (hereinafter referred to as Nayagarh Rule), Plaintiff's, 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-4 contested the suit claiming title on the basis that Nayagarh 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 522 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 6 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-4: did not carry an appeal against the adverse decree in respect of plot 553. Too trial. Court's decree granting relief u/s 4: of the Partition Act accordingly became final and conclusive. The only question that was canvassed in appeal was whether the relevant Nayagarh Rule was valid in law. Defendant-4: did not carry an appeal against the adverse decree in respect of plot 553. Too trial. Court's decree granting relief u/s 4: of the Partition Act accordingly became 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 2 and 4:. 3. Mr. Misra advanced two conditions- (i) The Nayagarh Rule, right of pre-emption 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 (ii) 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 pre-emption based on co-sharership is a reasonable restriction of the right to acquire, hold or dispose of property and is in the interest of the general public. The impugned Nayagarh Rules of pre-emption based on co-sharership cannot therefore be held to be unconstitutional as being contrary to Article 19(I)(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: 6. Notwithstanding anything contained in the tenancy laws of merged States as continued in force by virtue of Article 4 of the States Merger (Governor's 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 Rules is compared with the corresponding provision in the Act, it would be patent by clear that the rule imposes restriction of the free transfer of the holding contrary to Section 7(b)(i). By virtue of the non substance clause, in case of repugnancy the Act would prevail. This matter is no longer res integra. In Daka Bagarti v. Mukunda Khamari 17 C.L.T. 27, a Division Bench of this Court examine 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 same rules in Sonepur Bhumibidhi apply with full force to this case. The relevant Nayagarh Rules 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 1 to 3 in favour of Defendants must stand. 7. It may be clarified that in the plaint itself, Plaintiffs state that there was no partition by metes and bounds in the family. Defendants 1 to 3 therefore cannot be said to have exclusive 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 4, the latter would be allowed to continue in possession of the said lands. Defendants 1 to 3 therefore cannot be said to have exclusive 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 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. 8. In the result, the judgment and decree passed by lower appellate Court are set aside and those of the trial Court are restored. In the circumstances, parties to bear their own costs throughout. Appeal allowed. Final Result : Allowed