JUDGMENT S. PANDA, J. — In this writ application under Article 227 of the Constitution of India, challenge has been made to the order dated 31st January, 1995 passed by the learned District Judge, Cuttack in C.R. No.120 of 1994 confirming the order dated 16th August, 1994 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Title Suit No.155 of 1981. 2. The brief facts of the case are as follows : Present opposite parties 1 and 2 are two sons of one Narana. Opposite parties 3, 4 and 5 are sons and opposite party No.6 is the daughter of Baraju. Opposite party No.7 is the daughter of Kusa. Narana, Baraju and Kusa are sons of Dhadi. The disputed land under the Hal Khata No.401 containing as many as 12 plots is admittedly the ancestral property of Laxman. Plot No.1435 cover¬ing an area of Ac.0.18 decs. stands recorded as ‘Ghara’. The nature of the land under plot No.1434 covering an area of Ac.0.03 decs. stands recorded as ‘Bari’ and in respect of land covering an area of Ac.0.31 decs. under plot No.1463 there is no note about its user in the settlement records. Opposite parties 1 and 2 in the year 1981 filed Title Suit No.155 of 1981 for partition against opposite parties 3 to 6. Kusa the father of opposite party No.7 in respect of 1/3rd share in the land covered under Khata No.401. According to the plaint case, the share of opposite parties 3 to 6 is 1/3rd Kusa the father of opposite party No.7 is 1/3rd and plaintiffs is 1/3rd. During the pendency of the suit for partition, Kusa died leaving his daughter the present oppo¬site party No.7. Plaintiffs in the suit specifically stated that suit plot Nos.1434 and 1435 contain original ancestral residen¬tial house as the same became insufficient to accommodate all the family members. Plot Nos.1434 and 1435 covering an area of Ac.0.21 decs. were amicably partitioned between the three branch¬es of Laxman’s family equally. Present opposite parties 1 and 2 got Ac.0.07 decs. of land, opposite parties 3 to 6 got Ac.0.07 decs. of land and opposite party No.7 got Ac.0.07 decs. of land. Plaintiffs built their new residential house over their portion of land. The other two branches are living separately in their separate house constructed by them over their shares of land allotted to them in the said partition. of land, opposite parties 3 to 6 got Ac.0.07 decs. of land and opposite party No.7 got Ac.0.07 decs. of land. Plaintiffs built their new residential house over their portion of land. The other two branches are living separately in their separate house constructed by them over their shares of land allotted to them in the said partition. There was no whisper in the plaint that the land appertaining to plot No.1463 which is the subject matter of the present case is being sued as appurte¬nance to the dwelling house and by the time of institution of the suit there was no undivided dwelling house belonging to the three branches. In the suit, none of the defendants appeared inspite of notice and the suit was preliminarily decreed ex parte on 6.1.1983. In the said preliminary decree, it was specifically mentioned that plot Nos.1434 and 1435 are homestead plots. At the time of final partition, the respective possession of three branches of family as per mutual partition in respect of those two plots should be respected. Subsequent to the aforesaid pre¬liminary decree, there was a Panchayat Faisala on the interven¬tion of the well-wishers of the parties on 18.10.1984. In the said Faisala, final partition of the lands covered under 12 plots under Khata No.431 was effected and the previous mutual partition of two residential plot Nos.1434 and 1435 was reflected. In the Panchayat Faisala, plot No.1463 was partitioned by metes and bounds between the three branches of family in which opposite parties 2,3, and 5 got Ac.0.16 decs. to their share and all the parties accepted the Panchayat Faisala and put their signatures in the documents. After the said Faisala, the petitioner by registered sale deed dated 21st June, 1985 purchased the said area of Ac.0.16 decs. of land from opposite parties 2,3 and 5 which had been allotted to their share in plot No.1463 for con¬sideration of Rs.5000/-. Since the date of the purchase, the petitioner on the strength of her purchase was possessing the said Ac.0.16 decs. of land. After purchasing the are, she raised stone compound wall. She also raised two pucca rooms with asbes¬tos roof sin the said area and is living with her family in the said house and she has also undertaken construction of 6 other pucca rooms which are nearing completion. of land. After purchasing the are, she raised stone compound wall. She also raised two pucca rooms with asbes¬tos roof sin the said area and is living with her family in the said house and she has also undertaken construction of 6 other pucca rooms which are nearing completion. The total cost incurred by the petitioner in making these constructions was about Rs.5,00,000/-. Thus, it was clear that long after the Panchayat Faisala mentioned above, the petitioner purchased the land and is residing with her family. Opposite party No.1 after impleading the present petitioner as defendant in the suit filed a petition for making the preliminary decree final and in the said petition he claimed the relief under Section 4 of the Partition Act (for short “the Act”) against the petitioner in respect of her pur¬chased land. When the application for final decree was pending for disposal, opposite party No.1 filed Mis.Case No.26 of 1990 under Order 39, Rules 1 and 2 of the Civil Procedure Code to restrain the petitioner from interfering with the possession over the disputed land. The said misc. case was dismissed by the trial Court on 30th June, 1990. Against the said dismissal order of the trial Court, opposite party No.1 filed Misc. Appeal No.356 of 1990 and the same was remanded to the trial Court with a direc¬tion that a commissioner would be deputed at the cost of the plaintiffs to inspect the spot and file the report. On the basis of the said report, the trial Court would dispose of the injunc¬tion application on merit. As per the direction passed in the Misc. Appeal, the commissioner was deputed to inspect the disput¬ed land and submit the report before the trial Court. On the basis of the said report, the trial Court dismissed the injunc¬tion application on 2.12.1992 on the finding that the present petitioner was in possession over the said land. From the said report, it was clear that the petitioner was in possession of the said property by the time plaintiffs filed application under Section 4 of the Act. After raising pucca construction over the disputed land, she is residing with her family members and has surrounded the suit land with stone wall and dug a well. From the said report, it was clear that the petitioner was in possession of the said property by the time plaintiffs filed application under Section 4 of the Act. After raising pucca construction over the disputed land, she is residing with her family members and has surrounded the suit land with stone wall and dug a well. After the injunction application was dismissed, the trial Court heard the petition of the plaintiffs under Section 4 of the Act and allowed the said application of the plaintiffs to re-purchase the said land and directed to decide by negotiation about the present market value of the disputed land. The petitioner being aggrieved by the order of the trial Court, filed Civil Revision No.120 of 1994 before the learned District Judge who confirmed the same by order dated 31.1.1995. Hence this writ petition. 3. The learned counsel appearing for the petitioner sub¬mitted that both the Courts below misconceived the scope of Section 4 of the Act and the pleader commissioner in has report stated that the petitioner was in possession of the disputed land after constructing pucca house where she is residing with her family members and the disputed land is surrounded by the bound¬ary wall. The finding of the Courts below that the disputed land was a vacant land was not sustainable and during the pendency of the proceedings, the petitioner purchased the said land and raised the construction. Therefore, the said house constructed by the petitioner could not be said that the same was undivided dwelling house of the plaintiffs. Therefore, Section 4 of the Act is not applicable. He further submitted that in the final decree proceedings, the share has been allotted and after the disputed property was finally settled between the parties in the Panchayat Faisala, the petitioner purchased the said property from the co-owners opposite parties 2,3 and 5. Therefore, the plaintiffs and defendant No.2 are not entitled to the benefit of Section 4 of the Act and taking aid of Section 8 of the Act if the impugned orders are allowed to stand, grave injustice would be caused to the petitioner. 4. Therefore, the plaintiffs and defendant No.2 are not entitled to the benefit of Section 4 of the Act and taking aid of Section 8 of the Act if the impugned orders are allowed to stand, grave injustice would be caused to the petitioner. 4. The learned counsel appearing for the opposite parties submitted that since the application of the plaintiffs and de¬fendant No.2 to repurchase the disputed house from the stranger purchaser is maintainable under Section 4 of the Act there is no error apparent on the face of the record to be interfered with by this Court. 5. Having heard the rival submissions of the parties and perused the records, this is to be examined as to whether the disputed property over which the house stands is undivided dwell¬ing house of the parties and whether the plaintiffs are entitled to get he benefit of Section 4 of the Act to purchase the same. 6. It appears from the record that on the direction of the Court below a commissioner was deputed for local inspection and to report the situation of the suit land. The commissioner vide Annexure-2 reiterated that the present petitioner-Sebati Swain is residing with her husband and children in two asbestos rooms which were newly constructed by her. The rest of the suit land are bounded by stone compound wall of five feet height with a gate at the northern side and half constructed six rooms are also situated over the suit land upto ground level and two sides of the plinth area are ditch land. 7. For better appreciation, Section 4 of the Act is ex¬tracted below : “4. Partition suit by transferee of share in dwelling house-(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If any case described in Sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure pre¬scribed by Sub-section (2) of the last foregoing section.” 8. The aforesaid provision contains that at any stage of the proceedings between the contesting parties if the following conditions are satisfied, then a co-owner can advance his claim to repurchase the property by way of pre-emption of the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family; “(i) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; (ii) a co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (iii) the transferee of such undivided interest of the co-owner should be an outsider or stranger to the family; (iv) such transferee must sue for partition and separate posses¬sion of the undivided share transferred to him by the concerned co-owner and as against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of the such transferee, and (v) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share be¬longing to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable him to purchase by way of pre-emption.” 9. Therefore, from the provision of Section 4 of the Act, it is clear that there is no express provision indicating the stage at which such an application can be moved and it must be dwelling house belonging to one undivided family. In the present case, the facts narrated in the record reveal that the suit property as described in the plaint is a vacant plot and the present petitioner has purchased the same during the final decree proceeding. After her purchase she constructed two asbestos rooms and some other half constructed building are situated over the suit land. In the present case, the facts narrated in the record reveal that the suit property as described in the plaint is a vacant plot and the present petitioner has purchased the same during the final decree proceeding. After her purchase she constructed two asbestos rooms and some other half constructed building are situated over the suit land. Therefore, it cannot be concluded that the suit property is a dwelling house belonging to one undivided family. Therefore, Section 4 of the Act is not applicable. 10. In the case of Gautam Paul v. Devi Rani Paul and others reported in AIR 2001 SC 61 held that unless there is initiation of proceeding or the making of a claim to partition by the stranger purchaser of share in a family dwelling house, the co-sharers do not get right to claim pre-emption. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. The Legislature was aware that in a suit of partition to stranger outsider, who has purchased a share, would have to be made a party. The Legislature was aware that in a suit for partition the parties are interchangeable. The Legislature was aware that a partition suit would result in a decree for parti¬tion and in a most cases a division by metes and bounds. The Legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the legislature did not provide that the right of pre-emption could be exercised “in any suit for partition”. The legislature only provided for such right when the “transferee sues for partition”. The intention of the Legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming parti¬tion in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsid¬er) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsid¬er) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. If any other interpretation is accepted then in all cases, where their has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. 11. The present suit for partition was filed by the co-sharers. The stranger purchaser has constructed the house, having not at any stage asked for partition or demanded possession of her purchase share, order allowing the co-sharers to exercise right of pre-emption in respect of the said property was improp¬er. In view of the aforesaid decision of the apex Court, both the Courts below approached the question in an improper manner and gave the finding without considering the available evidence on record. Therefore, the finding of the Court below cannot be said to be one rendered with jurisdiction and is amenable to correc¬tion under Article 227 of the Constitution of India. This Court sets aside the order dated 31st January, 1995 passed by the learned District Judge, Cuttack in C.R. No.120 of 1994 as well as the order dated 16th August, 1994 passed by the learned 1st Addl.Civil Judge (Senior Division), Cuttack in Title Suit No.155 of 1981. The writ petition is accordingly allowed. No costs. Petition allowed.