JUDGMENT : P.K. Misra, J. - Defendant No. 6 is the Appellant. Late Mahendra Barik had purchased Ac.O.20 decimals of land as described in 'Kha' Schedule. Aforesaid Mahendra Barik expired leaving behind his widow (defendant No. 2) one son (defendant No. 1) and four daughters (defendants 3 to 5 and the Plaintiff herself). Mahendra Barik before his death has sold Ac.O.l0 decimals of land to the Plaintiff, as described in Schedule and continued to remain in possession in respect of balance Ac.O.lO decimals of land as described in 'Gha' Schedule. It is alleged by the Plaintiff that after death of Mahendra Barik, his legal representatives namely the Plaintiff and Defendants 1 to 5 succeeded to the 'Gha' Schedule property. but no partition in respect of the said 'Gha' Schedule property had been effected. It is further alleged that Defendant No. 1 illegally sold Ac.O.03 decimals of land as described in 'Una' Schedule to Defendant No. 6. although the Plaintiff was willing to purchase the said property and had issued notice to the concerned Sub-Registrar accordingly. On the above allegations. the Plaintiff filed the suit for demarcation of her purchased property as described in 'Ga' Schedule and for partition in respect of the property described in 'Gha' Schedule. It was sprayed that she may be permitted to purchase the 'Una' Schedule property in accordance with seetion 4 of the Partition Act and Section 22 of the Hindu Succession Act. 2. Defendants 1 to 5 filed a written statement denying some of the plaint allegations. However, subsequently, they did not contest the suit and remained ex parte at the time of hearing of the suit. 3. Defendant No. 6 in his written statement while denying the allegations in the plaint claimed that he had already purchased Ac.O.12 decimal of land from the disputed plot from the previous recorded owner and was in possession of the same by constructing a house. Subsequently; it was found on measurement that he was possessing Ac.O.03 decimals of excess land and it was decided that Defendant No. 1 would execute a sale deed in favour of Defendant No. 6 in respect of the said Ac.0.03 decimals of land and accordingly a sale deed was executed by Defendant No. 1. 4. The trial court found that out of the Ac. 0.32 decimals of land in question, Defendant No. 6 had purchased Ac. 4. The trial court found that out of the Ac. 0.32 decimals of land in question, Defendant No. 6 had purchased Ac. 0.12 decimals of land from the eastern side on 21-11-1947 under registered sale deed (Ext. D) and Mahendra Barik, the predecessor in-interest of the Plaintiff and other defendents had purchased Ac. 0.20 decimals from the said plot from the western side by registered sale deed dated 10-7-1950. It was further found on the basis of the admitted case of the parties that the Plaintiff had purchased Ac. 0.10 decimals by registered sale deed dated 14-12-1971 (Ext. 1) from the western-most side of the plot. It was found that the property was the self-acquired property of Mahendra Barik and Plaintiff and Defendants 1 to 5 succeeded to the property left by Mahendra as Class-I heirs under the Hindu Succession Act. The trial court allowed the Plaintiff's prayer for re-purchase of Ac. 0.03 decimials of land. It was further found that during his life-time Mahendra Barik had already sold Ac. 0.01 decimal of land from the disputed land to Defendant No. 6 as per Ext. A and, therefore, balance Ac. 0.09 decimals of land was available to be partitioned among the Plaintiff and defendents 1 to 5 by giving fetch. share to eadi of them. 5. It is contended by the learned Counsel for the Appellant that in the written statement of Defendant No. 6 it had been indicated that the disputed property was the joint family property but in the absence of any specific issue, adequate evidence could not be led by Defendant No. 6 to prove such assertion. On going through the written statement, I do not find any specific pleading by Defendant No. 6 to that effect nor any evidence has been adduced to prove that the disputed property which was purchased by Mahendra Barik was the joint family property of Mahendra Barik and Defendant No. 1. On the other hand, in the sale deeds including the sale deed in favour defendant No. 6, it is recited that the said property belongs to Mahendra Barik, but there is no assertion that the said property was the joint family property of Mahendra Barik and his son. The contention that Defendant No. 1 had larger share is thus not acceptable. 6. The contention that Defendant No. 1 had larger share is thus not acceptable. 6. It is further contended that the disputed property being the dwelling house of the members of the family of Mahendra Barik, the Plaintiff who was a female heir was not entitled to ask for partition till the male heirs choose to divide the property. In this connection, it is further contended that since Defendant No. 1 was the only male heir and Ors. were female heirs, the question of seeking a partition in respect of the disputed property can never arise. In support of his contention, the learned Counsel for the Appellant has placed reliance on the decision reported in A. 1. Rule 1996 S.C. 1826 (Narashimaha Murthy v. Smt. Susheelabai and Ors.. Though such a plea had not been specifically raised in the written statement by Defendant No. 6, it appears from the judgment of the trial court that such a question had been urged. Defendant No. !, the male heir, who could have resisted such a suit for partition has chosen to remain ex parte. In the absence of any plea as to whether the disputed property was the dwelling house under the occupation of the members of the family of Mahendra Barik and in the absence of any specific evidence to that effect, it would not be proper to hold that the suit for partition was not maintainable as the instance of the Plaintiff who was a female heir Moreover such a question can be raised only by the affected party namely Defendant No. 1. In fact, the Defendant No. 1 having himself sold a portion of the disputed property to Defendant No. 6. it can be well assumed that he had no objection to such partition being effected. The question as to whether the dwelling house was in the occupation of the members of family of the intestate being an essential question of fact and having not been raised in the written statement by anybody and particularly having not been raised by Defendant No. 1 who as otherwise to be affected such contention cannot be accepted particularly when Defendant No. 1 has not challenged the decree of the trial court. 7. 7. The learned Counsel for the Appellant has contended that the suit in the present form is not maintainable to enforce v. Smt. Rangabati Barik the right u/s 22 of the Hindu Succession Act and, at any rate, the court fee paid is not sufficient as the court fee should have been paid u/s 7(vi) of the Court Fees Act, as amended in Orissa. Defendant No. 1 has also not challenged the decree relating to partition and, as such, the said question cannot be raised by Defendant No. 6 who is a stranger to the family. Ordinarily, payment of court fee is a matter between the Plaintiff and the State. Moreover, such a plea was not specifically taken before the trial court. It is not open to the Appellant to raise such a contention for the first time in appeal. It was not necessary for the Plaintiff to file a specific suit for encroaching the right of re-purchase and while claiming partition in respect of other property, she could have raised this question, as has been done in the present case. 8. Though all the contentions raised by the Defendant No. 6 are untenable, the decree passed by the trial court is required to be modified as otherwise it may become unworkable. There is no evidence on record to the effect that after the death of Mahendra Barik, is heirs who had succeeded to the property had partitioned the property described in 'Gha' Schedule. As such. the transfer by Defendant No. 1 must be taken to be transfer of his own interest. As already indicated, the trial court has found that Ac. 0.01 decimal of land out of 'Gha' Schedule had already been sold by Mahendra Barik to Defendant No. 6. Such property has to be excluded, from partition. Out of the balance Ac. 0.09 decimals of land, the share of each party was 1/6th, that is to say, 0.015 decimals for each party. In other words, it is evident that Defendant No. 1 had sold property in excess of his share. Since Plaintiff and other Defendants are not parties to the sale deed in favour of Defendant No. 6 by Defendant No. 1, their interest in the property is not affected by the said sale deed. In other words, it is evident that Defendant No. 1 had sold property in excess of his share. Since Plaintiff and other Defendants are not parties to the sale deed in favour of Defendant No. 6 by Defendant No. 1, their interest in the property is not affected by the said sale deed. Since Defendant No. 1 has sold; the property in excess of his share, in normal course the said deed would not be binding on other heirs and the question of re-purchase should have been confined to the share of Defendant No. 1 which must be taken to have been purchased by Defendant No. 6. In other words, the prayer as well as the decree for re-purchase should have been confined to Ac. 0.015 decimals and hot Ac. 0.03 decimals, as has been claimed by the Plaintiff and decreed by the trial court. In fact, the trial court has decreed the Plaintiff's 1/6th share in the disputed property of Ac. 0.09 decimals of land and also declared 1/6th share each of Defendants 1 to 5 out of the balance land. The trial court further observed that the Plaintiff is entitled to purchase Ac. 0.03 decimals of land already sold to Defendant No. 6. Since the sale was in excess of his share of Ac. 0.015 decimals, the decree for re-purchase should have been confined to Ac. 0.015 decimals of share of Defendant No. 1 and in respect of excess Ac. 0.015 of land cannot be binding on the Plaintiff or Defendants 2 to 5. However, since the Plaintiff herself had prayed for re-purchase of Ac.0.03 decimals of land and has not challenged the decree of the trial court, such modification cannot be made which would be disadvantageous to the present Appellant. In order to avoid any confusion in the matter, the decree is clarified and modified in the following manner: (i) Ac. 0.10 decimals of land purchased by plaintiff from Mahendra Barik from the western side of the land has to be demarcated in her favour; ii) Ac. 0.12 decimals and' Ac. 0.01 decimal of land purchased by Defendant No. 6 from Mahendra Barik from the eastern side of the plot has to be demarcated in favour of Defendant No. 6; iii) Balance Ac. 0.12 decimals and' Ac. 0.01 decimal of land purchased by Defendant No. 6 from Mahendra Barik from the eastern side of the plot has to be demarcated in favour of Defendant No. 6; iii) Balance Ac. 0.09 decimals of land has to be divided, into six shares out of which Plaintiff is entitled to get 1/6th share and Defendant 1 to 5 are entitled to be allotted 1/6th share each. Since Defendant No. 1 had already sold to Defendant No. 6 and prayer for re-purchase had been made by the Plaintiff, the plaintiffs is entitled to purchase the 1/6th share of Defendant No. 1. However, since she has not challenged the direction of the trial court, she has to pay the consideration money for the Ac. 0.03 decimals of land to Defendant No. 6. 9. In normal course, the price should have been fixed keeping in view the valuation of the land at the time of filing of the suit. It appears that Defendant No. 6 had purchased Ac. 0.03 decimals of land on 23-1-1977 by paying consideration of Rs. 750 to Defendant No. 1 and the suit was filed on 24-3-1977 within two months thereof. Having regard to all those aspects, in order to avoid any further delay and consequential harassment in the matter. I think interest of justice would be served by directing the Plaintiff to pay a sum of Rs. 1,0001- to Defendant No. 6 as the amount payable towards the right of re-purchase. The Plaintiff is thus entitled to Ac. 0.03 decimals of land from 'Gha' schedule property. Ac. 0.03 decimals of land sold to Defendant No; 6 should be allotted to her and the balance land may be divided between Defendants 2 to 5. Since Defendant No. 1 has already sold more than his share, he would not be entitled to any further share in the 'Gha' schedule property. 10. Subject to the aforesaid direction and modification in the decree of the trial court, the appeal is accordingly disposed of. There will be order as to cost. Appeal disposed of.