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(2) If in 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 prescribed by sub-section (2) of the last, foregoing section." It was submitted by Shri Gambhir, learned senior counsel for the appellant that one of the requirements of the Section is that such an application under Section 4 can be moved by one of the co-

sharers of a dwelling-house provided a stranger/outsider/purchaser being one of the co-sharers moved for partition. That in the present case it has not so happened. The appellant had never moved for separating his share by metes and bounds even at the stage of execution of the final decree. He submitted the as the property has already stood partitioned from 1974 onwards and the Commis-sioner's report was not objected to by respondent No. 1, his application was not maintainable even on that ground.

In para 5 of the Report it was observed that the real controversy between the parties is whether the appellant who was a stranger transferee of l/3rd undivided interest of Smt. Radha.Rani in the suit property can be said to have sued for partition so as to satisfy the remaining condition of the said provision even though the other conditions were found to be satisfied.

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.

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 (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).

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. This decision obviously cannot apply to the facts of the present case where the alienating stranger purchaser of undivided interest of a co-owner in the suit house was neither plaintiff nor defendant in the suit. The Trial Court in the present case has clearly noted that the transferee Kundanbai or Babu Lal were not parties to the suit. Consequently, it could not be said that the transferee stranger purchaser of co-owner interest in the joint property was suing for partition either as a plaintiff or even as a defendant in the suit for partition. If the ratio of the aforesaid decision is held to take the view that a stranger purchaser who does not move for partition of joint property against the remaining co-owners either as a plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of partition decree, can still be subjected to Section 4 of the Petition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh 's case (supra) and to that extent it must be treated to be overruled. Civil Appeal is, therefore, allowed. The impugned judgment and order of the High Court are set aside and the judgment of the Trial Court is restored. With the result, the application moved by respondent No. 1-decree holder under Section 4 of the Act will stand dismissed. In the facts and circumstances of this case there will be no order as to costs.