JUDGMENT : In this appeal, the appellants have called in question the judgment and decree passed by the learned 2nd Addl. District Judge, Cuttack in Title Appeal No. 20 1989 confirming the judgment and decree passed by the learned Subordinate Judge, Cuttack (as it was then) Title Suit No. 193/300 of 1983/87. The appellant as the plaintiff had filed the suit for partition of the suit schedule properties per share noting in the C.S. record of right specifically claiming under section 4 of the Partition Act the relief as regards the properties purchased by the respondent no. 3 (defendant no. 4) by Kabala (sale deeds) dated 06.03.1962 and 24.07.1965 with the declaration that the sale-deed dated 04.05.1968 executed in favour of the respondent no. 1 (defendant no. 1) and consequently the sale-deed dated 27.05.1980 executed by said respondent no. 1 (defendant no. 1) in favour of respondent no. 2(defendant no. 3) as inoperative. The appellants (plaintiffs) had also prayed for relief of permanent injunction against respondent no. 2 (defendant no. 3). The suit having been dismissed, they filed an appeal under section 96 of the Code of Civil Procedure. There the result of the dismissal of the suit having been confirmed now the move is before this Court by filing the second appeal under section 100 of the Code. 2. For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as arraigned in the trial court. 3. The inter se relationship between the parties as described in the plaint in schedule A with later amendment runs as follows:- Panchanana Mahi Mahi Sahadeb Radhanath = Taramani Bhagaban Late Fakir Late Panu = Rama =Udia (P-3) Late Balaram Late Upendra = Suka (D.2) Prafulla (P-1) Pitambar (P-2) Rajani (P-4) Kanchana (D.1) * (Supplied by this Court on going through the pleadings) It is stated that the properties under sabik plot no. 3278Ac. 0.04 decimals; plot no. 3276-Ac. 0.02 decimals and plot no. 3275-Ac.0.04 decimals totaling to Ac. 0.38 decimals described in schedule – B of the plaint are the joint family homestead land of the parties over which the joint family dwelling house stands and those lie in a compact block. 3278Ac. 0.04 decimals; plot no. 3276-Ac. 0.02 decimals and plot no. 3275-Ac.0.04 decimals totaling to Ac. 0.38 decimals described in schedule – B of the plaint are the joint family homestead land of the parties over which the joint family dwelling house stands and those lie in a compact block. In the record of right of the year 1930-31 it stood recorded as such with the share, noting of the recorded tenants namely Radhanath and Bhagaban having 8 annas, and 8 pahis of share and Fakir as well as Panu having 7 annas 4 pahis. The allegation is that on 06.03.1962, Rama widow of Panu, Balaram and Suka, the original defendant no. 2 (since dead) sold the undivided share of land out of plot no. 3275 and 3278 to the extent of Ac. 0.04 decimals and Ac. 08 decimals totaling Ac. 0.12 decimals to defendant no. 4 by registered sale-deed, Ext. 8 and then again Balaram, Suka, the original defendant no. 2 sold Ac. 0.02. 11/2 kadis of land from plot no. 3278 to that defendant no. 4 on 24.07.1965 by registered sale-deed under Ext. 9. Thus, it is stated that the branch of Panu out of their interest of 7 annas 4 pahis have sold Ac. 0.14.11/2 kadis as against their entitlement standing at Ac. 0.17.4 kadis, thus being left with Ac. 0.03.31/2 kadis. During these transactions, the plaintiffs claim to be the minors under the care of custody of the mother guardian who being a pardanashine lady was then also old. Thus, they were not aware of the transactions and that was also the situation during the hal settlement operation. It is stated that Balaram and Suka on 04.05.1968 again sold 5 kadis of land from out from plot no. 3276 and Ac. 09.31/2 kadis of land from plot no. 3278 to defendant no. 1 by registered sale-deed under Ext. 10. Thus, they sold their undivided interest in the joint family that too in excess of their share which after the alienations till then was having the balance of only Ac. 0.03.31/2 kadis to their credit. The sale-deed Ext. 10 is challenged to be a nominal one as such to have not been acted upon also being not followed by delivery of possession It is said to be a part and parcel of co-parcenery property and as to have been sold without the consent of the plaintiffs. 0.03.31/2 kadis to their credit. The sale-deed Ext. 10 is challenged to be a nominal one as such to have not been acted upon also being not followed by delivery of possession It is said to be a part and parcel of co-parcenery property and as to have been sold without the consent of the plaintiffs. The hal settlement entry is said to have been erroneously made in favour of defendant no. 1 in respect of hal plot no. 3124 corresponding to sabik plot no. 3278. It is next stated that the defendant no. 1 declared to have entered into an agreement with defendant no. 3 who is a stranger to the family for sale of the land as purchased by her on 11.01.1980 under Ext. 10. So, having made enquiry they came to know about erroneous settlement entries of land under plot no. 3124 corresponding to sabik plot no. 3278. It is alleged that Kanchan, the defendant no. 1 has finally sold the lands covered under Ext. 10 i.e. the purchased portions of sabik plot no. 3278 corresponding to hal plot no. 3124 and 3227 to defendant no. 3 on 27.05.1980 vide Ext. 11 which is invalid. 4. The defendant no. 1 and 3 in their written statement pleaded a complete partition in metes and bounds between the two branch i.e., Mahi and Sahadeb about 40 years back. It is stated that in the said partition, Ac. 0.12 decimals from south-eastern side of sabik plot no. 3278 with a residential house and the entire land under sabik plot no. 3277 fell to the share of the members representing the branch of Mahi, whereas the members of Sahadeb’s branch got the remaining portion of land of sabik plot no. 3278 with a residential house and the entire land under sabik plot no. 3275. It is further stated that they got three decimals of land more than the branch of Mahi as sabik plot no. 3275 was a tank. The land under sabik plot no. 3276 being connected with the house of both the parties, the same remained joint. It is further stated that Mahi’s branch constructed a compound wall around their dwelling house and accordingly members of each branch possessed their respective portions separately. Thus they claim the transactions under Ext. 8 and 9 as valid. It is stated that defendant no. 4 possessed the land covered under Ext. It is further stated that Mahi’s branch constructed a compound wall around their dwelling house and accordingly members of each branch possessed their respective portions separately. Thus they claim the transactions under Ext. 8 and 9 as valid. It is stated that defendant no. 4 possessed the land covered under Ext. 8 and 9 having filled up the tank under plot no. 3275 and constructing a pucca house over the purchased land pertaining to plot no. 3275 and 3278 corresponding to hal settlement plot no. 3120 under Khata no. 788 standing recorded in her name. It is also asserted that the sale-deed Ext. 10 and 11 are all valid and the defendant no. 3 is the rightful owner on the basis of those sale transactions. The defendant no. 4 has adopted the written statement of defendant no. 1 and 3. 5. The defendant nos. 1 and 3 in their written statement pleaded a complete partition by metes and bounds between the two branches i.e. Mahi and Sahadeb about forty years back. 6. Faced with such pleadings, the trial court framed eight issues. It has recorded a finding on going through the evidence as also the conduct of the parties as available from evidence viewing side by side the circumstances emerging from evidence that there has been prior partition of the lands between the parties. The above finding has practically resulted the dismissal of the suit disentitling the plaintiffs from all the reliefs that they had sought for. The lower appellate court on an independence assessment of evidence has found no justifiable reason to record its disapproval to the finding of the trial court as regards the prior partition. In so far as the relief under section 4 of the Partition Act is concerned, the same has been mainly been refused in view of the positive evidence of P.W. 2 (plaintiff no. 2) that they have not prayed for partition in respect of homestead land. 7. The appeal has been admitted on the following substantial question of law:- “Whether the conclusion of the courts below on the question of non-applicability of the section 4 of the Partition Act at all can be sustained since the evidence of the plaintiff that the parties are joint qua-dwelling house has not at all been considered?” 8. Heard the learned counsel for the parties. Heard the learned counsel for the parties. In order to address the above substantial question as formulated in this appeal for being answered, at first, it is felt the need to take note of reliefs claimed by the plaintiff in the suit which are reproduced as those find mention:- (a) The suit property be partitioned in accordance with the share noted in C.S. Khatian and defendant no. 4 be directed to re-transfer in favour of the plaintiffs. The share of properties which she has purchased from Balaram Panda, Suka and Rama Didya by different kabala dated 06.03.1962 and 24.07.1965 under section 4 of the Partition Act for a price to the determination by the court. (b) let, it be declared that defendant no. 1 has not acquired any title or possession to the land purchased by her on 04.05.1968 from late Balaram Panda and Suka Didya (deceased) defendant no.2. (c) alternatively, if it is held that the defendant no. 1 has acquired any title to the land by Kabala dated 04.05.1968 which she has already transferred in favour of defendant no. 3 on 27.05.1980, she or defendant no. 3 as the case may be directed to transfer the same in favour of the plaintiff under section 4 of the Partition Act for a price to be determined by the court. (d) the defendant no. 3 be permanently restrained from intruding upon schedule-B land or from any interference in the in joint possession of the plaintiff over the same. (e) the cost of the suit be decreed in favour of the plaintiffs. (f) plaintiff be given such other relief or reliefs. 9. The land as described in Schedule –‘B’ of the plaint is the suit land. The land standing recorded under sabik Khata no. 702 vide plot no. 3275-Ac.0.04 decimals; sabik plot no. 3275-Ac.0.02 decimals; sabik plot no. 3278-Ac.0.32 decimals, thus in total, Ac. 0.38 decimals is the first item of Schedule-‘B’. The next item is in relation to Khata no. 482, plot no. 3277-Ac. 0.11 decimals which corresponds to hal plot nos. 3120, 3126, 3125, 3126, and 3127. When all the reliefs as claimed are read conjointly, it is seen that the plaintiff while claiming those reliefs have asserted their right of re-purchase in consonance with the provisions contained in section 4 of the Partition Act. As per the admitted genealogy, the plaintiff no. 0.11 decimals which corresponds to hal plot nos. 3120, 3126, 3125, 3126, and 3127. When all the reliefs as claimed are read conjointly, it is seen that the plaintiff while claiming those reliefs have asserted their right of re-purchase in consonance with the provisions contained in section 4 of the Partition Act. As per the admitted genealogy, the plaintiff no. 1 and 2 are the sons of Bhagaban and grandson of Mahi, whereas plaintiff no. 4 is their sister and plaintiff no. 3 is their mother. It may be stated here that courts below have recorded a concurrent finding of prior partition amongst the parties. The substantial question of law posed for being answered by this Court is “Whether the parties are joint qua-dwelling house or not so as to be entitled to exercise the right of re-purchase as provided under section 4 of the Partition Act.” 10. Law is now well settled that a co-sharer is entitled to exercise his right of re-purchase under section 4 of the Partition Act only when the transferee has sued for partition of his/her purchased property by filing a suit for partition. In the instant case, the transferee/transferees have not filed the suit for partition and for allotment of his/their purchased extent of property towards the share of his vendor and for adjustment in accordance with the same. It is pertinent to state here that the views of different High Courts were divergent on this point. In the case of Alekha Mantri vrs. Jagabandhu Mantri, AIR 1971 Orissa 127, in a suit filed by the plaintiff ( a member of the joint family ) for partition and separate possession of his undivided share, the question before the Court was whether alienee from the co-owner who was already defendant No.1 could be subjected to proceedings under Section 4 of the Partition Act by the plaintiff. The Court had to examine the question whether the person who had brought the suit for partition was himself not the stranger purchaser but one who was a member of the family and when he is seeking to purchase the share of the vendee from the co-owner alienating his share in favour of a stranger purchaser and when such a vendee was himself a party to the suit as defendant No.1, could make such a vendee defendant answerable under Section 4 of the Act or not. In the background of this fact situation, the Court observed in para-13 of the report that Section 4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee, and that it is not necessary that the latter should have filed the suit. He being a defendant could have specifically claimed a share in the residential house. Now, it must be noted that in a partition suit even defendants are as good as plaintiffs and the Court has to ascertain their respective shares in the joint property and subsequently has to separate them by metes and bounds. This was the position of law enunciated by this Court when the present suit as well as the first appeal came to be decided. So, naturally the point was neither raised nor canvassed that in the suit filed by the plaintiff with the defendant-purchaser could not be subjected to proceedings under section 4 of the Partition Act at the instance of the plaintiff. This was also the position when this second appeal was admitted by formulating the substantial questions of law. 11. In the case of Babulal v. Habibnoor Khan (dead) by L.Rs and Others, reported in AIR 2000 Sc 2684 , the Hon’ble Supreme Court held as follows:- “10. Therefore, one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that the stranger-transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is, of course, true that in the said decision it was observed that even though the stranger-transferee of such undivided interest moves an execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger-transferee. All the same, however, before section 4 of the Act can be pressed into service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger-transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased……….” 12. A similar view has also been taken in a decision in the case of Goutam Paul v. Debi Rani Paul and Others, reported in AIR 2001 SC 61 , wherein the Hon’ble Supreme Court in paragraph 23 held as follows:- “23. We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. 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. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section-4 is not giving a right to a co-sharer, the pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition, the 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 partition and in 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. The legislature was aware that a partition suit would result in a decree for partition and in 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 for 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 partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of preemption. 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. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. It that interpretation were to be accepted then in all cases, where there 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 purchase of section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law”. 13. 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 purchase of section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law”. 13. The above settled legal position as it now stands cuts at the very root of the case of the plaintiffs and without further delving on the sustainability of the finding of the trial court as affirmed by the lower appellate court in so far as the jointness of the parties qua- dwelling house, the answer comes that the right of re-purchase of property under section 4 of the Partition Act is not available to the plaintiffs in the present suit. The substantial question of law for this appeal in this way is answered against the appellants. 14. Resultantly, the appeal stands dismissed. No order as to cost is passed in the facts and circumstances of the case.