JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Puri in Title Appeal No. 99 of 1989 confirming the judgment and decree passed by the learned Subordinate Judge, Puri (as it was then) in Title Suit No. 165 of 1984. 2. The appellant as the plaintiff had filed the suit for partition of the properties described in the schedule of the plaint in two equal shares and pressing further his right to re-purchase the share of respondent no. 2(defendant no. 2) sold in favour of respondent no. 1(defendant no. 1) into service. The suit having been preliminarily decreed for partition without the grant of the relief of repurchase, the appellant as the unsuccessful plaintiff had carried the appeal under section 96 of the Code of Civil Procedure. The lower appellate court has also not accepted the claim of the plaintiff that he has the right of repurchase as asserted so as to be exercised in the suit banking upon the provision of section 4 of the Partition Act. Therefore, appellant-plaintiff being aggrieved by the refusal of the relief of repurchase of the land purchased by respondent no. 1(defendant no. 1) from defendant no. 2(respondent no.2) on payment of price has filed this second appeal under section 100 of the Code. It is pertinent to state here that during pendency of this appeal, respondent no. 2 (defendant no.2) having died, his legal heirs have been brought on record. 3. For the sake of convenience and to bring in clarify so as to avoid any confusion, the parties hereinafter have been referred to as they have been arraigned in the suit. 4. Essential facts for the purpose of this appeal are sated hereunder describing the parties as per their possession as assigned in the trial court. The plaintiff and defendant no. 2 are the members of the joint Hindu family. In the year 1960, they purchased the suit land for consideration of Rs.6,000/- and accordingly possessed it jointly. While so possessing the same, defendant no. 1, a stranger to the family of the plaintiff and defendant no. 2 taking their consent occupied one room standing over the suit land when two other rooms remained in occupation of the plaintiffs. Sometime thereafter on 07.12.1973, defendant no. 2 executed a sale-deed in favour of the defendant no. While so possessing the same, defendant no. 1, a stranger to the family of the plaintiff and defendant no. 2 taking their consent occupied one room standing over the suit land when two other rooms remained in occupation of the plaintiffs. Sometime thereafter on 07.12.1973, defendant no. 2 executed a sale-deed in favour of the defendant no. 1 in respect of his interest over the suit property. This sale transaction is said to be a sham one without consideration. So, when the defendant no. 1 began to make some construction over the suit property, the plaintiff filed a suit for injunction and that is said to have been decreed directing the defendant no. 1 not to make any construction over the southern half of the suit property. Now this suit has been filed for partition and for exercise of the right of repurchase under section 4 of the Partition Act as is claimed to be resting with the plaintiff. It is said that the suit property is the joint family property of the plaintiff and defendant no. 2. The plaintiff claims to be living in the suit house with his family and it would not be convenient for them to live in the house in presence of stranger which would cause inconvenience at every moment. The plaintiff has further expressed his readiness and willingness to pay the consideration for such repurchase of the interest of defendant no. 2 which he had over the suit land transferred in favour of defendant no. 1. 5. Controverting the plaint averments, the defendant projected a case of complete partition of the suit land by metes and bounds and it is said that he had purchased the property after that partition and thus has been staying over there for quite a long length of time and as such in that way it is said that he is no more a stranger to the family of the defendant no. 2. It is also stated that the plaintiff was well aware of the transaction. 6. 2. It is also stated that the plaintiff was well aware of the transaction. 6. This appeal has been admitted on the substantial questions of law as stated in ground ‘A’ and ‘B’ of the memorandum of appeal which are reproduced hereunder:- (A) Whether the courts below have committed illegality in holding that subsequent suit wherein relevant right under section 4 of the Partition Act were being claimed was barred by the provision of order -2 rule 2 of the Code of Civil Procedure? (B) Whether the courts below should have held that the relief under section 4 of the Partition Act can be granted only when there is partition and as such the earlier suit for permanent injunction only cannot operate as a bar under order -2 rule -2 of the Code of Civil Procedure? 7. Heard the learned counsel for the parties at length. I have carefully gone through the judgments of both the courts below. 8. The trial court on the above rival pleadings framed in total seven issues. Rightly, first going to answer issue no. 5 as regards setting at rest the factual controversy as to whether the suit property with the house standing over it has to be said to be the family dwelling house of the plaintiff and defendant no 2, the answer has been recorded after appreciation of evidence at its level that the plaintiff and defendant no. 2 had separated their jointly family property barring little extent of land still remaining joint. However, finding has been that the suit house is the undivided dwelling house of the plaintiff and defendant no. 2. On the next issue with regard to the status of defendant no. 1 vis-a-vis, the plaintiff and defendant no. 2, it has been categorically held that he is a stranger to their family. The issue with regard to the suit being hit under the provision of order-2 rule 2 of the Code as contended by defendant no. 2 has been repelled. Lastly, going to answer the important issue concerning the exercise of right of purchase by the plaintiff which within its sweep also includes the challenge to the maintainability of the suit and lack of cause of action, the trial courts answers have remained the followings :- “(i) In course of time, the defendant no. 2 has been repelled. Lastly, going to answer the important issue concerning the exercise of right of purchase by the plaintiff which within its sweep also includes the challenge to the maintainability of the suit and lack of cause of action, the trial courts answers have remained the followings :- “(i) In course of time, the defendant no. 1 has became a close associate to the family of the plaintiff as well as defendant no. 2 and cannot be termed as a stranger for the purpose of the section 4 of the Partition Act; (ii) the suit is not maintainable so far the right of preemption is concerned and it is maintainable only for partition” 9. The lower appellate court going to answer the question of maintainability of the suit as raised and if it is hit by provision of order-2 rule-2 of the Code is seen by quoting the relevant provision of law as also the decision of the Apex Court and other decisions has concluded that cause of action of both the suits being same and one set of fact being averred in both the suits, the provision of order-2 rule 2 would stand in the way of the suit. Next it has stated that when it has already been decided in the earlier suit that the defendant no. 1 is a stranger to the family and no appeal has been preferred, the same is binding on the parties. Lastly however, it gone to affirm the conclusion of the trial court that the relief under section 4 of the Partition Act is not available to be granted to the plaintiffs. 10. At this juncture, it is felt the need to state that here the trial court has decided the suit by its judgment dated 17.08.1989 and the appeal had been disposed of on 19.12.1990. The present second appeal having been filed on 15.04.1991, the same has been admitted finding substantial questions of law to be surfacing in the case for consideration and answer by order dated 06.08.1991. In the suit, the plaintiff has claimed the relief of repurchase of the land sold by defendant no. 2 to defendant no. 1 in exercise of his right as such available to him under section 4 of the Partition Act read with Section 44 of the T.P. Act. 11. The Apex Court in case of Ghanteswar Ghosh Vrs. In the suit, the plaintiff has claimed the relief of repurchase of the land sold by defendant no. 2 to defendant no. 1 in exercise of his right as such available to him under section 4 of the Partition Act read with Section 44 of the T.P. Act. 11. The Apex Court in case of Ghanteswar Ghosh Vrs. Madan Mohan Ghosh; AIR 1997 SC 471 have laid down that before section 4 of the Partition Act can apply the following five conditions have to be satisfied:- (1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned; (4) 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; and (5) 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 belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house. It is also held that Section 4 has been enacted for the purpose of insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. It is held that the scheme seeks to protect the family members from the onslaught on their peaceful joint family life by stranger-outsider to the family who may be having different outlook and mode of life including food habits and other social and religious customs. It is held that entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality. It is held that keeping these objects in view the right flowing from Section 4 cannot be restricted in its operation only up to the final decree for partition. It is held that crystallization of share may take place but separation and partition take place only by actual division by metes and bounds and delivery of possession of respective shares to the respective shareholders. It is held that this can be achieved only at the stage of execution of the final decree. It is held that only after execution, separation and partition the court would become functus officio. It is held that the provisions of Section 4 would, therefore, be available at all stages of the litigation till the litigation reaches its terminus by means of full and final discharge and satisfaction of the final decree for partition. It is held that if a stranger transferee enters the arena of contest at any stage and seeks to get his share separated he can be said to be suing for partition and separate possession within the meaning of Section 4. It has been held that such a transferee may come on the scene prior to the final decree or he may come on the arena of contest even in execution proceedings as a transferee of the decretal right. It is held that in either eventuality it would be said that such a stranger is suing for partition. 12. It has been held in case of Babulal Vrs. Habibnoor Khan (dead) by LRs and Others; AIR 2000 SC (2684) that:- 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. 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 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 in 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. This condition is totally lacking in the present case. To recapitulate, respondent No. 1-decree holder himself, after getting final decree, had moved an application under Section 4 of the Act. Appellant, who was a stranger purchaser, had not filed any application for separating his share from the dwelling house, either at the stage of preliminary decree or final decree or even thereafter in execution proceedings. 11. Only on this short ground, therefore, the application under Section 4 of the Partition Act has to be treated as not maintainable as held by the Trial Court. The decision of the Orissa High Court in Alekha Mantri's case (AIR 1971 Orissa 127) (supra) relied upon by the learned Single Judge also cannot be of any avail in view of the settled legal position discernible from the aforesaid decision of this Court in the case of Ghantesher Ghosh (supra). 12. It has also to be noted that in Alekha Mantri's case (supra) the alienee of undivided share of a co-owner in a joint family house was already defendant No. 1 in the suit filed by the plaintiff for partition and separate possession of his undivided share. 12. It has also to be noted that in Alekha Mantri's case (supra) the alienee of undivided share of a co-owner in a joint family house was already defendant No. 1 in the suit filed by the plaintiff for partition and separate possession of his undivided share. The question before the Orissa High Court was whether alienee from the co-owner who was already defendant No. 1 could be subject 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. 13. And in case of Gautam Paul Vrs. Debi Rani Paul and Another; AIR 2000 SC 61 it has again been held that:- “22. The next question is whether it can be said that the Appellant had sued for partition. Undoubtedly the decisions of the Calcutta High Court in Bhattacharyya case ( AIR 1989 Cal 35 ) (SB) (supra) and the cases reported in AIR (1937) Nag. 4, AIR (1950) Pat 317 and AIR (1971) Orissa 127, support the interpretation sought to be placed on Section 4 by Mr. Gupta. However, as noted above there is conflict of opinion between the various High Court on this points. 4, AIR (1950) Pat 317 and AIR (1971) Orissa 127, support the interpretation sought to be placed on Section 4 by Mr. Gupta. However, as noted above there is conflict of opinion between the various High Court on this points. The cases reported in AIR (1957) All 356 (FB), AIR (1922) Bom, 121 and AIR (1950) Mad 214 take a contrary view. In our view for reason set out hereinafter the opinion held by the Calcutta, Patna and Orissa High Court is not correct and cannot be sustained. It must be mentioned that this Court has in the case of Babu Lal v. Habibnoor Khan, reported In AIR [2000] 5 SCC 662: (2000 AIR SCW 2857: AIR 2000 SC 2684 ) already considered the correctness of the view taken in AIR 1971 Orissa 127. As set out above the Orissa High Court took the same view as the Calcutta High Court. This Court held as follows in respect of the view taken by the Orissa High Court (para -12 of AIR SCW & AIR): "If the ratio of the aforesaid decision is held to take the view that a stranger-purchaser who does not move for partition of the joint property against the remaining co-owners either as a plaintiff or even as successor of the decree-holder seeks execution of the partition decree can still be subjected to Section 4 to the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh (1996 AIR SCW 3858: AIR 1997 SC 471 ) and to that extent it must be treated to be overruled." 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 the transferee of 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. 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 preempt 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. 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 inter-changeable. 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. 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 the 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 than in all cases, where there has been a sale of share to an outsider, a cosharer 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 preempt 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. 24. In this case we have seen the written statement and the additional written statement filed by the Appellants. We have also seen the evidence given by the Appellants. At no stage has the Appellant asked for partition or demanded possession of his share. All that he has claimed, which he was bound to and entitled to, is that he has an l/9th share in the property. Under these circumstances, the High Court was wrong in allowing the Respondents 1 and 2 to exercise a right of pre-emption under Section 4 of the Partition Act. In this case, the condition of a transferee suing for partition had not been fulfilled.” 14. Applying the ratio as noted above, I don’t think that there survives the need now in this appeal to answer the substantial questions of law as framed. In this case, the condition of a transferee suing for partition had not been fulfilled.” 14. Applying the ratio as noted above, I don’t think that there survives the need now in this appeal to answer the substantial questions of law as framed. Therefore, without expressing any opinion with regard to the sustainability of the findings of the trial court as well as the lower appellate court as stated in the aforementioned paras, this Court unhesitatingly holds that in the present suit, the prayer of repurchase as advanced for by the plaintiff banking upon the provision of section 4 of the Partition Act is not allowable since here the transferee has not come to sue for partition and as such that basic precondition in the case does not stand fulfilled for consideration of the grant of relief of repurchase as laid by the plaintiff. 15. Resultantly, the appeal stands dismissed. In the facts and circumstances however no order as to cost is passed.