IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.190 of 2007 1. Anil Dwivedi 2. Sunil Dwivedi 3. Punil Dwivedi All sons of Late Krishna Dwivedi, 4. Vidyawati Devi 5. Urmila Devi Both daughters of Late Krishna Dwivedi, All resident of village Pakari, P.S. Obra, P.O. Obra, District Aurangabad. …Plaintiffs-Appellants-Appellants. Versus 1. Ram Sringar Dwivedi son of Late Deolal Dwivedi, 2. Smt.Shanti Dwivedi, wife of Sri Ram Sringar Dwivedi, both resident of village Pakari, P.O. Obra, P.S. Obra, District Aurangabad. 3. Smt. Savitri Devi wife of Jagtanand Pandey resident of village Manora, P.O. and P.S. Obra, District Aurangabad. 4. Smt. Manobriti Devi wife of Late Krishna Choubey and D/o Deolal Dwivedi, resident of village Homidnagar, P.O. Baghoi, P.S. Goh, District Aurangabad. 5. Smt. Daya Kuer widow of Late Nand Kishore Dwivedi 6. Shashi Dwivedi minor son of Late Nand Kishore Dwivedi under guardianship of his mother. Both resident of village Pakari, P.O. and P.S. Obra, District Aurangabad. 7. Smt.Renu Devi wife of Sri Satyendra Kumar Pandey, resident of village Pakari, P.S. Obra, District Aurangabad. Defendants-Respondents-Respondents. For the appellants : Mr. Dhrub Narayan, Sr.Advocate with M/s Ahishek and Rajeev Kr. Singh, Advocates. For respondent no.7 : Mr. Jayanand, Advocate. For the remaining respondents : None. ----------- 19/ 11.05.2010 Heard learned counsel for the appellants and learned counsel for respondent no. 7. 2. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of the 2 courts below. 3. The matter arises out of Partition Suit No.52 of 1986 (06/1989) which was filed by plaintiffs-appellants, who were co-sharers, for partition of the suit properties. The aforesaid suit was decreed in part by Subordinate Judge-III, Aurangabad vide his judgment and decree dated 23.09.2005. 4. Against the said judgment and decree of the trial court plaintiffs-appellants, who were co-sharers, filed Partition Appeal No.25 of 2005 (11/2006) which was dismissed on contest by Additional District Judge-cum-Fast Track Court No.II, Aurangabad vide his judgment and decree dated 29.05.2007. 5. This second appeal has been filed by plaintiffs- appellants-appellants challenging paragraph-15 of the appellate court judgment by which the appellants’ reliefs sought under section 4 of the Partition Act, 1893 were rejected. 6. It is not in dispute that the plaintiffs-appellants and defendants-respondents were co-sharers, whereas respondent no.7 was a purchaser who had purchased from the defendant- respondent and was thus impleaded as a party in the title appeal. The court of appeal below after considering the facts and circumstances of the case as well as the provisions of law applicable thereto came to the conclusion that since the purchaser had not filed a suit for partition, the provision of section 4 of the Partition Act was not applicable to the case. 7. Learned counsel for the appellants vehemently 3 challenges the said paragraph 15 of the judgment of court of appeal below stating that although it had relied upon a decision of the Apex Court in case of Gyan Chand and another vs. Sumat Rani and others, reported in AIR 2002 Supreme Court 2434, but here in the instant case the purchaser was already a party to the partition suit and hence the said decision was not applicable to the facts and circumstances of the case. He further submits that section 44 of the Transfer of Property Act,1882 specifically provided that where one of two or more 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 transferor’s 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. In this connection learned counsel for the appellants also relies upon a decision of the Apex Court in case of Gautam Paul vs. Debi Rani Paul and others, reported in 2000 (8) Supreme Court Cases 330. 8. From a perusal of the provisions of section 44 of the Transfer of Property Act as well as section 4 of the Partition Act and also of the two decisions of the Apex Court in case of Gyan Chand and another (supra) and in case of Gautam Paul (supra), this court finds that the aforesaid provision of the Transfer 4 of Property Act gives all the rights to the purchaser including the right to enforce partition of the same by filing a suit, whereas the provision of the Partition Act provides that if such a suit is filed by the purchaser what would be its effect on the right of the other co- sharers. In the said circumstances section 44 of the Transfer of Property Act does not by any means contradict the provision of section 4 of the Partition Act, rather both the said provisions are supportive of each other. 9. So far the aforesaid decision of the Apex Court in case of Gautam Paul (supra) is concerned, it is specifically held therein that when the purchaser had not asked for such partition or demanded possession of his share, the provision of section 4 of the Partition Act will not be applicable. Similarly in case of Gyan Chand and another (supra) Supreme Court has followed the aforesaid decision passed by a Bench of the Apex Court earlier in case of Gautam Paul (supra). In view of the aforesaid settled principles of law and also in view of the fact that the purchaser was not even a party in the suit and had never raised any claim for partition, there was no occasion for applicability of section 4 of the Partition Act in this case and the court of appeal below had rightly rejected such claim of the appellants. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly 5 dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )