2000 3 SCR 684 The following Order of the Court was delivered The short question posed for our companysideration in this appeal on grant of special leave under Article 136 of the Constitution of India is as to whether application moved under Section 4 of the Partition Act, 1893 for short the Act by respondent No.
3 before the High Court Babu Lal who was a stranger to the family and the rest portion of it had been bought in a companyrt auction in execution of a mortgage decree by one Kundanbai, whose legal representative is the present appellant Babu Lal.
1 had brought a suit for partition and separate posses sion of his l/4th share in a dwelling house situated at Indore in the State of Madhya Pradesh.
1 on 18th June, 1976 moved an application under Section 4 of the Act undertaking to buy the share of the appellant stranger transferee of the interest of other defendant Afzalnoor Khan.
1 was dismissed by the Trial Court, but, in appeal a prelimi nary decree was passed for partition and separate possession of plaintiff respondent No.
They were overruled and it was found by the Trial Judge on 7th November, 1973 that a supplementary final decree was yet required to be passed.
1, who was one of the defendants, did number raise any objection, with the result that a final decree in terms of the preliminary decree came to be passed on 5th September, 1967.
In the meantime, the Commissioner submitted his report along with the site plans recommending the partition of the dwelling house.
1 original plaintiff initiated execution proceedings for effecting the partition by metes and bounds on spot.
1 raised numberobjections to the said report of the Commissioner or the plans submitted by him.
1, who was the decree holder in the partition suit, was maintainable in law.
It was at the stage when the Court was about to close the proceedings by passing appropriate final orders that respondent No.
Pursuant to the said preliminary decree a Commissioner was appointed to effect partition by metes and bounds and to apportion mesne profits among the claimants.
The said dwelling house companysisted of two portions belong ing to an undivided family.
The suit filed by respodnent No.
The learned Trial Judge accepted the said objection by dismissing the application as number maintainable.
One portion out of the two portions of the house had been sold to number applicant No.
One Afzalnoor Khan, the younger brother of respondent No.
The said applications was companytested by the appellant by submitting that it was number maintainable.
On 5th May, 1968 respondent No.
Certain objections were raised by the appellant.
Respondent No.
1s share in the suit property.
It is pertinent to numbere that respondent No.
A few facts leading to this appeal are required to be numbered at the outset to appreciate this companytroversy between the parties.
