NAVANITI PRASAD SINGH, J.
(1.) For the reasons explained in the application of codonation of delay, the delay is condoned. The application is allowed.
(2.) Heard Mr. Daronachaya, learned counsel for the plaintiff-petitioners and Mr. Shashi Sekhar Dwivedi, learned senior counsel appearing on behalf of defendant-opposite party.
(3.) The present revision application has been filed by the plaintiff-petitioners against the order dated 11.2.2002 passed by the learned Munsif. Khagaria in a Final Decree Case No. 82/91 arising; from Title Suit No. 82/91 by which the learned Munsif has allowed the application of defendant No. 6 (the sole contesting defendent-opposite party before this court) by which he has held the suit itself to be not maintainable.
(4.) The facts relevant for adjudication of the case are short and not in dispute. The plaintiff-petitioners along with two others filed a Title Partition Suit No. 82/91 against their brothers and sisters as well as defendant No. 6, who was the purchaser from one of the co-sharers, for parititon of suit property as also for a decree of pre-emption as against defendant No. 6. It is not in dispute that while the suit was pending defendant No. 6, who had already purchased one share of a co-sharer, purchased the share of all other co sharers except the plaintiff-petitioners. The result is that the plaintiff alone was left with 1/7th share whereas remaining 6/7th share was purchased by defendant No. 6. The applications were filed in this regard by the respective parties. The remaining plaintiffs were transposed as defendants Leaving plaintiff alone as against defendant No. 6 representing share of the other six co-sharers.
(5.) At this stage defendant No. 6 filed an application (Annexure 1) before the trial court stating the aforesaid facts and prayed that defendant No. 6 has become purchaser of 6/7th share in Schedule A property and plaintiff-petitioners are share holders to the extent of 1/7th share of schedu
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le A property. "...and thus it is subject of partition accordingly in between plaintiff Nos. 1 to 5 and defendant No. 6. That by now this defendant No. 6 who is alone contesting the suit as share holder of 6/7th share of schedule A property is simply submitting to your honour that the suit may be decided in view of provision of Section 58 of Evidence Act." The prayer in the said application was that the suit may be decided under Section 58 of the Evidence Act as the claim of Plaintiffs is admitted and scheudle A property be partitioned by appointing a survey knowing Pleader Commissioner at the cost of this defendant.
(6.) Section 58 of the Evidence Act lays down that the facts admitted need not be proved. In effect the prayer was as the parties were in agreement of their respective shares, preliminary decree be passed accordingly and partition by metes and bounds be effected and final decree passed accordingly. This application was heard and disposed of by order dated 26.4.1994 by the trial court wherein the shares were decided accordingly i.e. the plaintiffs' 1/7th share and defendant No. 6's 6/7th share of the schedule property. So far as the claim of pre-emption with reference to Section 44 of the Transfer of Property Act and Section 4 of the Partition Act are concerned, the same was dismissed on the ground that the suit had been instituted by a co-sharer for partition and not by the outsider purchasers. This was with reference to Section 4 of the Partition Act which would operate only when partition suit is instituted by transferee of share in a dwelling house.
(7.) The plaintiffs being aggrieved by the said order filed an appeal which was heard and dismissed by the 2nd Additional District Judge by his judgment and order dated 13.3.1996. The plaintiffs then preferred second appeal being Second Appeal No. 157 of 1996 in this court. The same was disposed of by judgment and order dated 10.7.1998. This court held that Section 4 of the Partition Act is complementary to second part of Section 44 of the Transfer of Property Act. This court further held that a right of pre-emption under Section 44 of the Transfer of Property Act read with Section 4 of the Partition Act has to be considered and decided even in a suit for partition filed by a co-sharer or other co-sharer and stranger Purchaser and reliance was placed on judgment of Allahabad High Court in the case of Prayag Narain v. Vishwanath Kaushik and Ors. AIR 1983 All. 213. Having thus held the impugned judgment and decree was set side and the trial court was directed to adjudicate the Plaintiff's relief for pre-emption. However, preliminary decree was not disturbed. Neither party challenged the. aforesaid decision of this court which thus attained finality inter party. The effect of the said decision of this court in second appeal was that the claim of the plaintiffs with regard to pre-emption became maintainable in terms of statutory provision as aforesaid as interpreted by this court. In the meantime it appears that pursuant to the order of the trial court and before the order of this court in Second Appeal the dwelling house was partitioned. Defendant No. 6 got, possession of his share. It is not in dispute that consequent thereto he defendant No. 6) demolished the building appertaining to his share and, therefore no dwelling house was left to his share but only landed property on which the dwelling house was earlier there. Plaintiffs did not resist this action.
(8.) Now, defendant No. 6 filed a petition purported to be under Section 151 of the Code of Civil Procedure for proceeding in accordance with the order of this court as passed in Second Appeal. The said application is Annexure 5. In the said application reference was made to the order passed inter party in second appeal as well as the judgment of Allahabad High Court. It was said that in a recent decision of the Supreme Court (reference was made to the case of Gautam Paul v. Debi Rani Paul and Ors.) reported in, the apex court has discussed in detail the statutory provision and as: such, it was prayed that the suit be heard and decided on point of law as the suit is not maintainable. This application was filed in January, 2001, which application was considered and disposed of by the impugned order dated 11.2.2002. By the said order the trial court has held that in view of the decision of the Supreme Court the suit not having been instituted by the stranger purchaser the same was no; maintainable but while holding so the trial court also took notice of the fact that there was no dwelling house on the site and as such it dismissed the suit itself.
(9.) For consideration of the issue involved in the present case it is necessary to quote Section 44 of the Transfer of Property Act and Section 4 of the Partition Act. 44. Transfer by one co-owner.-Where one of two or mere co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer. the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. 4. Partition suit 1y 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 tansferee 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.
(10.) Mr. Daronacharya appearing on behalf of plaintiff-petitioners submits firstly, that the judgment in the second appeal was judgment inter party and as such it could not be ignored by the trial court on remand in view of subsequent Supreme Court decision laying down law differently. Secondly, it was submitted that the judgment of the Supreme Court does not help defendant No. 6 rather it enures to the benefit of the plaintiffs -petitioners by virtue of defendant No. 6's application filed earlier (Annexure 1). On the other hand, Mr. Dwivedi, learned senior counsel, appearing for defendant No. 6-opposite party, the sole contesting party, urged that once Supreme Court has interpreted the law subsequently, that interpretation would bind the parties irrespective of judgment inter party and in view of the said Supreme Court judgment (supra) the suit far pre-emption was not maintainable. Lastly, he submitted that the dwelling house in respect of which the pre-emption could be claimed being no more in existence no right could be claimed. It was also submitted that Section 4 of the Partition Act would not apply rather the other provision, namely Sections 3, 5 and 6 would apply and he was ready to buy out the share of the plaintiff-petitioner.
(11.) The issue thus is whether the plaintiffs-petitioners had a right of pre-emption and secondly can he now exercise that right?
(12.) Section 44 of the Transfer of Property Act is in two parts. First is that if a co-sharer of immovable property transferred his share the transferee would get the share and interest of the transferor including right to enforce partition. The second part of Section 44 deals with the transferee's rights in the dwelling house held in jointness. It is statutorily provided that the transferee would not be entitled to joint possession or other common or part enjoyment of the said dwelling house. It is thus clear that outsider transferee could not claim joint possession or joint enjoyment of facility. He had a right to seek partition. This section apparently does not confer any right of pre-emption on the other co-sharer but makes the enjoyment of property by the transferee, restricted in many ways. All the rights of enjoyment of the transferor cannot be exercised by a transferee. It is in this sense that Section 4 of the Partition Act has been held as a necessary adjunct to Section 44 of Transfer of Property Act for, Section 4 then gives a right to the co-sharer remaining in the joint dwelling house preempting the same in favour of outside transferee. The intent is clear. It is to maintain harmony and unity. Co-sharers may agree among themselves, enjoy the property, services and amenities jointly but may have serious reservation of doing so with outsider and as such they have the right of pre-emption to keep out, from the joint dwelling house outsider transferee. But while doing so the legislatures have provided in Section 4 that such a right could be exercised by the co-owner only when the transferee sues for as per right given to him under Section 44 of the Transfer of Property Act.
(13.) It appears that there were divergent opinions and views of various High Courts as to interpretation of latar part of Section 4. Some courts held that it is only in a case where transferee sues for partition or asserts his right for petition that the right of pre-emption could be invoked. Some of the courts, apparently, including this court were of the view that once the transferee is made a party, in a suit for partition then by nature of the suit being a partition suit the defendants would also be treated as plaintiffs and as such merely because the transferee is made a defendant the right of pre-emption could be invoked.
(14.) I may mention;hat later view is the view taken by this court in the second appeal inter party in the present case as well.
(15.) The Supreme Court in the case of Gautam Paul v. Debi Rani Paul and Ors. has now settled the matter at rest so far as this aspect of law is concerned. The apex Court referred to the earlier judgment of the apex court in Ghanteshwar Ghosh v. Madan Mohan Ghosh and to various judgments of different courts. It overruled the judgments of Calcutta, Patna and Orissa High Courts and upheld the views taken by other courts in para 23 of the reports, it has been held as such: We are in agreement with this opinion. There is no law which provides that co-sharers 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, 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 the rein 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 transfer/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 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-sharer, 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 a 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 I proceedings, it cannot be said that he has suit for partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provision 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. 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.
(16.) Thus the apex court has settled the law that it is the purchaser/transferee who has to institute the proceeding and it is only in this proceeding that the right of pre-emption is available in respect of that dwelling house.
(17.) Mr. Dwivedi, learned senior counsel based on the aforesaid law has also submitted that in the present case the suit not having been instituted by the defendant and at no point of time the defendant asked for partition of his share, he having only asked for carving out the share of the plaintiffs at the cost of defendant, he is covered by the said decision and the suit was not maintainable.
(18.) Before proceeding further I wish to point out that undisputecly the parties had suffered inter party judgment of this court No party challenged the said judgment. It was binding inter party notwithstanding the law subsequently modified or held otherwise in some other cases not between the parties. The remedy available to the aggrieved party was to file an appeal to the apex court and get the inter party judgment modified in view of subsequent judgment but so long the inter party judgment remained, the trial court was bound to follow the same is the trial court was merely acting on remand. However, this question should not detain as even otherwise from the judgment of the apex court as referred it is clear that though the defendant No. 6 did not file the suit for partition he did by his subsequent application seek partition/division of the property. In this connection I have already referred to the application (Annexure 1 of the defendant). The Supreme Court in the said decision itself has held in para 25 as follows: In this view of the matter the impugned judgment requires to be and is set aside. The decree of the trial court dated 27.8.1992 is restored except that the application under Section 4 shall now stand dismissed as being premature. Respondents 1 and 2 are at liberty to apply to the trial court, if they so desire for a final decree of partition. We, however, clarify that if at any stage the appellant applies for partition and for separation and possession of his share Respondents 1 and 2 apply and/or any other co-sharer will still be entitled to move under Section 4 of the Partition Act.
(19.) Mr. Dwivedi says that what defendant No. 6 asked was to carve out share of the plaintiff and give him that land and the rest to defendant No. 6. He did not seek partition I am afraid the said pleadings is nothing but pleading similar to the other side of the coin. In other words, it is two sides of the same coin. Asking for partitioning other's share and asking for partitioning his share will have the same effect. It makes no difference.
(20.) It is thus held that the claim of the plaintiffs-petitioners was maintainable and he had right of preemption, which was wrongly disallowed by the trial court even with reference to the recant decision of the Apex Court as aforesaid.
(21.) Ordinarily, this would have led to the civil revision being allowed but the subsequent event in which it is admitted that except for the share of the dwelling house falling to the share of the plaintiff the rest has been demolished and there is no dwelling house, no right under Section 4 of the Partition Act can now be exercised by the plaintiffs. The right is in respect of a dwelling house. The same not being there that right cannot be exercised any more. Therefore, in view of these subsequent developments the plaintiffs cannot be granted any relief of pre-emption. He may however be entitled to his right under Sections 3, 6 and 7 of the Act in accordance with law.
(22.) In the result this civil revision application, stands dismissed. There will be no order as to costs. Revision application dismissed