Judgment 1. This application by the defendants second party is directed against order dated 26-11-84, by which the court below held that the application filed by the plaintiff under S.4 of the Partition Act (hereinafter referred to as the Act) was maintainable at the stage of preparation of the final decree land directed the office to proceed in accordance with the procedure laid down under S.3 of the Act. 2. The short question for consideration in the instant case is whether a similar earlier application, filed during the pendency of the suit, having not been allowed, could the court reconsider the second application under the very same Section, i.e., under S.4 of the Act and hold it to be maintainable ? 3. Shorn of all other details, only a few relevant facts need to be stated. The Title Suit No. 16 of 1980 was originally filed by one Bibi Sakina for a declaration that the sale deed dated 27-10-78, executed by one Asraf Ali (since deceased) in favour of defendant second set/petitioners, was illegal and void and that Asraf Ali had no right to execute the sale deed with respect to the plaintiffs share and as such the defendants second set/petitioners did not acquire any title, muchless any valid title by virtue of that sale deed. 4. Alternatively, another declaration was sought to the effect that if the sale deed of the defendant second set/petitioners was held to be genuine and for consideration, plaintiffs 1/3rd share be partitioned. 5. It is pertinent to mention here that the sole plaintiff died during the pendency of the suit and her heirs and legal representatives were substituted. It is also pertinent to state that Asraf Ali (defendant No. 1) also died during the pendency of the suit, but as, according to the plaintiff, Asraf Ali (the vendor) was not a necessary party no substitution was made in his place. 6. On 1-10-1982, i.e., after two years, the plaintiffs filed another application and by this application the plaintiffs wanted amendment in the plaint and a relief was sought to be added, viz., that if the sale deed was valid to the extent of 2/3rd share of Asraf Ali then a decree under S.4 of the Act be passed. In other words, the plaintiffs by this amendment petition urged that they be allowed to re-purchase the property under S.4 of the Act. In other words, the plaintiffs by this amendment petition urged that they be allowed to re-purchase the property under S.4 of the Act. Though this application for amendment of the plaint, by way of adding a relief, was filed on 1-10-82, it remained lying on the record as not pressed by the plaintiffs till the suit was taken up for hearing. The judgement in the suit was delivered on 12-3-1984 and by this judgement the court below rejected the prayer for amendment of the plaint, as prayed by the amendment petition on 1-10-82. It would be most pertinent to quote the nature of the order passed by the court below on that application of the plaintiffs : "In the end, however, I wish to mention here that the plaintiffs have drawn the attention of court towards Sec. 4 of the Partition Act according to which, the plaintiffs are entitled for an option to purchase the property which is in the hands of stranger by dint of sale by co-sharer. He has referred an amendment petition dated 1-10-82 by which a relief was sought to be added that if the sale deed to the extent of 2/3rd share of Asraf Ali is valid then the decree u/s 4 of Partition Act be passed. I regret to mention here that the amendment petition was never pressed in court resulting therefrom that the plaint was not amended. So at this stage the plaintiffs cannot take advantage of it. Moreover, in the present case relied u/s 4 of Partition Act cannot be granted to the plaintiffs, because right conferred by S.4 should accrue to the members of undivided family only in the event of the transferee seeking to obtain partition of this share in dwelling house and I hold, therefore, that the provision of S.4 well partition in which the stranger defendants (does) do not themselves claim the separation of their share (sic)". 7. The suit was decreed in part only. The plaintiffs did not prefer any appeal against that decree. Thereafter the proceeding for final decree started. During the pendency of the proceeding for preparation of final decree on 11-6-84, the plaintiffs again filed an application under S.4 of the Act before the court. Defendants second set/petitioners filed a rejoinder to the application filed by the plaintiffs; whereupon, the court below passed the impugned order. 8. Thereafter the proceeding for final decree started. During the pendency of the proceeding for preparation of final decree on 11-6-84, the plaintiffs again filed an application under S.4 of the Act before the court. Defendants second set/petitioners filed a rejoinder to the application filed by the plaintiffs; whereupon, the court below passed the impugned order. 8. The learned counsel for the petitioners submitted that the court below having already rejected the plaintiffs earlier application filed under Sec. 4 of the Act, it could not sit over its own judgement and allow the second application filed under the very same Section at the stage of the final decree and thus the court below has not only acted illegally in exercise of its jurisdiction but has also acted with material irregularity. 9. The position would have been absolutely different if the plaintiffs would not have filed any application under S.4 of the Act during the pendency of the suit but that having been rejected by the judgement in the suit dated 12-3-84, the only question was whether the second application under the very same Section could be entertained by the very same court. 10. It is well settled that an application under S.4 of the Act can be made at any stage of the partition suit even after passing of the final decree. It is also well settled that such an application is maintainable after passing of the final decree and before the possession of the allotted property is delivered to the stranger transferee in execution of the decree. The plaintiffs could have had no difficulty in the least if the plaintiffs would not have filed the application during the pendency of the suit and if already rejected the same. The remedy to the plaintiffs was to file an appeal against the preliminary decree in the suit and, at the appellate stage; it was open to the plaintiffs to challenge all those findings. But, as already stated above, the plaintiffs never preferred any appeal against the preliminary decree passed in the suit. 11. The court below, as already stated above, by its judgement in the suit dated 12-3-84 (and as already quoted above), had rejected the application of the plaintiffs filed under S.4 of the Act. In this background the court below could not hold that the second application under S.4 of the Act, filed by the plaintiffs on 11-6-84, was maintainable. 11. The court below, as already stated above, by its judgement in the suit dated 12-3-84 (and as already quoted above), had rejected the application of the plaintiffs filed under S.4 of the Act. In this background the court below could not hold that the second application under S.4 of the Act, filed by the plaintiffs on 11-6-84, was maintainable. In fact, the court below has modified its judgement; in other words, what was held by the court below in paras 49 and 50 (as already quoted above) has been modified by the impugned order. This the court has no power to do. 12. Thus, I find, in the facts and circumstances of the present case, there is enough force in the submission advanced by the learned counsel for the petitioners and I hold that the court below has not only acted illegally in exercise of its jurisdiction but has also acted with material irregularity. 13. In the result, this application is allowed and the impugned order dated 26-11-84 is set aside. However, there will be no order as to costs.