JUDGMENT : This appeal is directed against the judgment and decree passed by the learned Additional District Judge, Jajpur in Title Appeal No.13 of 1993. The respondent no.1 and original respondent no.2 as the plaintiffs had filed Title Suit No.1 of 1972 in the Court of Subordinate Judge, Jajpur for partition of schedule ‘A’ property allotting the plaintiff with -/10/8/-pies share, the original plaintiff no.2 with -/5/4/-pies share over schedule ‘B’ property and to effect partition by metes and bounds with further prayer for repurchase of the homestead land from the appellant-defendants, who claimed to have purchased the same from the defendant no.4. The suit having finally been dismissed, refusing to grant the relief under section 4 of the Partition Act, the unsuccessful plaintiffs carried an appeal and there they having been successful in getting the relief of repurchase of the land purchased by the defendants from defendant no.4-Ujala Bewa to the extent of her share, the present second appeal has been filed by the aggrieved defendants. The appeal is confined to the question of grant of the relief of repurchase as provided under section 4 of the Act. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below. 3. Plaintiffs case is that one Bipra Naik had three sons, namely, Mangaraj, Kanduri and Pari. Kanduri died prior to the current settlement while living separate and Ujala remained as his only heir. In the settlement the lands belonging to the family stood recorded in the name of Mangaraj, Pari and Ujala. Pari said to have died issueless and thereafter Mangaraj also died leaving behind his two sons, namely, Nanda and Sananda and widow Bhabani. It is stated that Nanda, Sananda became entitled to -/10/8/-pies interest and Ujala was having the entitlement to -/5/4/-pies interest when Bhabani was mere a maintenance holder. It is further stated that Nanda, Sananda and Ujala were in possession of the properties as per the amicable arrangement as of their respective sharers. It is next stated that Nanda, Sunanda and Ujala have alienated -/16/-annas interest in respect of some properties which have not been brought within the purview of the suit. Nanda died 17 to 18 years prior to the suit leaving behind plaintiff no.1, who was then a minor. It is next stated that Nanda, Sunanda and Ujala have alienated -/16/-annas interest in respect of some properties which have not been brought within the purview of the suit. Nanda died 17 to 18 years prior to the suit leaving behind plaintiff no.1, who was then a minor. Sananda predeceased him and plaintiff no.2 is Sananda’s widow. Bhabani said to have died 10 to 11 years prior to the suit. So this -/10/8/-pise share of Nanda and Sananda came to devolve upon Narayan and Sebati. Thus, it is said that plaintiff no.1 over all the family properties is said to be having -/5/4/-pies and Sebati to be having -/5/4/-pies. The plaintiffs have -/10/8/-pies share over schedule ‘A’ property. The plaintiff no.1 having alienated the portion of the land in his possession as per the amicable arrangement from out of his -/5/4/-pies share in the entire joint family property has no further interest over it and accordingly plaintiff no.2 is said to be having -/5/4/-pies share in that plot described in schedule ‘B’. It is their case that defendant nos.1 to 13 claimed to have purchased some joint family property from Ujala-defendant no.14 towards her -/5/4/-pies share. In view of the inconvenience in possession of the joint family property, the plaintiff had requested the defendants for amicable partition of the suit properties. However, that did not materialize. Next, it has been specifically pleaded that the land under Plot nos.71 and 72 measuring 58 dec. under Khata No.210 as described in schedule ‘A’ is the joint homestead land of the plaintiff and defendant no.14. So, it is said that without a partition by metes and bounds, the other defendants being strangers to the family and outsiders are not entitled to possess any portion of the said joint family homestead. The sale deed is also said to have been fraudulently obtained. Their further case is that schedule ‘A’ and ‘B’ land having not been partitioned by metes and bounds, the plaintiffs are having the right to repurchase the portion of the homestead land purchased by these defendants pressing the provision of section 4 of the Partition Act into service with their readiness and willingness remaining to pay the market price. The land under the two plot nos.71 and 72 measure Ac.0.58 dec. The land under the two plot nos.71 and 72 measure Ac.0.58 dec. and that is said to have been the undivided homestead land of the plaintiffs and Ujala and is said to have never been partitioned by metes and bounds. The averments made therein with regard to Nanda and Sananda on one hand and Ujala on the other had partitioned the property is challenged as not correct and so also the allotment of the eastern half of the land under Plot no.72 to Ujala. They assert that the entire homestead is under one enclosure and both the plots of land are integral part and parcel of the undivided homestead and every part of the two plots is required and necessary for safe and convenient user as well as occupation of house and homestead by the plaintiff and family members. It is stated that over these two plots of land, the house and bari of the plaintiff and his co-sharers are standing and the thrashing floor is said to have been situated to the south of the house of plot no.72 with one Gadia (pond) at the north of the homestead and that is used by the members of the family for bathing, washing of utensils and for all other purpose. Number of trees of different species are also said to be standing and that area is being used as bari when some of the portion is said to have been utilized as vegetable garden. Thus, it is stated that the possession of the purchased land by the strangers would be detrimental to the interest of the plaintiffs and their family members and that would cause disintegration and the sanctity of the joint family dwelling house would be totally lost if they are allowed to so possess in accordance with their purchase. 4. The suit being preliminarily decreed on 24.11.1977 allotting 2/3rd share to the plaintiff no.2 in schedule ‘B’ property and also entitling the plaintiffs to repurchase the extent of joint homestead from defendant nos.5 to 9 as per the provision of section 4 of the Partition Act, the defendants carried a first appeal, i.e., F.A. No.85 of 1978. 4. The suit being preliminarily decreed on 24.11.1977 allotting 2/3rd share to the plaintiff no.2 in schedule ‘B’ property and also entitling the plaintiffs to repurchase the extent of joint homestead from defendant nos.5 to 9 as per the provision of section 4 of the Partition Act, the defendants carried a first appeal, i.e., F.A. No.85 of 1978. This Court allowed the appeal and the suit was remanded for disposal in accordance with law granting permission to the plaintiffs to amend the plaint by giving a sketch map of Plot nos.71 and 72 to the extent of undivided family dwelling house by giving opportunities to defendant nos.5 to 9 for filing additional written statement and also to the parties to lead further evidence. The decree was set aside in respect of plot nos.71 and 72 concerning the relief under section 4 of the Partition Act. The suit then proceeded for disposal afresh as per above direction and in accordance with law. The trial court finally came to conclude that the suit plots bearing nos.71 and 72 do not constitute the family dwelling house and the plaintiffs have failed to so establish. It also held that the plaintiffs have not been able to show through acceptable evidence that the eastern half which has been purchased by the defendants on 26.03.1960 over which the plaintiffs are claiming to be in possession is being possessed and used for the convenient and beneficial enjoyment of the land situated on the western half so as to get the relief under section 4 of the Partition Act. Thus, the suit in so far as the relief under section 4 of the Partition Act confined to the land under Plot Nos.71 and 72 was dismissed. The appellate court being moved by the plaintiffs who felt aggrieved by such refusal of relief of repurchase to them has gone to set aside the findings of the trial court. It has thus allowed the claim of the plaintiffs for repurchase of the portions of land by defendants from Ujala. 5. The appeal has been admitted by order dated 11.12.1995 on the following substantial question of law: “Whether the question of preemption under section 4 of the Partition Act was open and the learned appeal court below has erred in appreciating the direction of this Court in sending back the case on remand?” 6. 5. The appeal has been admitted by order dated 11.12.1995 on the following substantial question of law: “Whether the question of preemption under section 4 of the Partition Act was open and the learned appeal court below has erred in appreciating the direction of this Court in sending back the case on remand?” 6. At the outset the learned counsel for the appellants as well as the respondents fairly agree on the point that the position of law as regards the entertain ability and enforceability of claim of repurchase under section 4 of the Partition Act in the meantime has been finally set at rest by the Apex Court in case of Babulal v. Habibnoor Khan (dead) by L.Rs. and Others reported in AIR 2000 SC 2684 that such exercise of right of repurchase is available to a co-sharer only when a suit for partition is filed by the stranger purchaser and only in that suit for partition at the instance of said stranger purchaser, the co-sharer/s can seek the relief of repurchase with the aid of the provision of section 4 of the Partition Act. Therefore, it would be profitable take note of those decisions before proceeding further in the matter. 7. 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 have purchased…………” 8. A similar view has also been taken in a decision in the case of Gautam 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 stranger/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that a 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 to 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. In other words, Section 4 is not giving a right to a co-sharer to 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. 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 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. 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. If 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. 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. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.” 9. In view of the above authoritative pronouncements of the Apex Court, in my considered view, the substantial question of law as framed long before the pronouncement of the judgment of the Apex Court as above laying down the law on the subject does no more survive for consideration and answer. 10. Admittedly the present suit for partition having not been filed by the stranger transferee, the plaintiffs are thus not permitted to exercise their right of repurchase, if any, with the aid of provision of section 4 of the Partition Act and that is not available to them in this suit to be so exercised. In that view of the matter, the judgment and decree passed by the lower appellate courts which have been impugned in this second appeal cannot sustain. 11. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court are hereby set aside. The suit for the grant of relief of repurchase under section 4 of the Partition Act to the plaintiffs stands dismissed. However, in the peculiar facts and circumstances, the parties are directed to bear their respective cost of litigation throughout.