1. This 2nd Appeal has been preferred against the confirming Judgment.

2. The appellant in this 2nd Appeal i.e. Mahanadi Devi was the defendant No.1 before the Trial Court in the suit vide O.S. No.15 of 1991-I and sole appellant before the 1st Appellate Court in the First Appeal vide T.A. No.14 of 1993.

The respondents in this 2nd Appeal were the plaintiffs and defendant Nos.2 to 8 before the Trial Court in the suit vide O.S. No.15 of 1991-I and respondents before the First Appellate Court in the 1st Appeal vide T.A. No.14 of 1993.

3. The suit of the plaintiffs (respondent Nos.1 to 4 in this 2nd Appeal) against the defendants (appellant and respondent No.5 to 11 in this 2nd Appeal) vide O.S. No.15 of 1991-I was a suit for partition and for re-purchasing homestead properties under Section 4 of the Partition Act, 1890.

4. According to the plaintiffs, they (plaintiffs) and defendants are Hindus and they are guided and governed by Mitakshara School of Hindu Law.

In order to have an instant reference, the genealogy given by the plaintiffs in their plaint is depicted hereunder:

As per the aforesaid genealogy given by the plaintiffs in their plaint, Kushei Panda was their common ancestor. Kushei Panda died leaving behind his 5 sons i.e. Bhagaban, Bhagabat, Sadananda, Gadadhar & Harihar. The 3rd and 4th son of Kushei Panda i.e. Sadananda and Gadadhar died issueless. Accordingly, their branches extinct.

Bhagaban Panda died leaving behind his 3 sons i.e. Khetramohan, Krupasindhu & Dinabandhu. The 2nd Son of Bhagaban i.e. Krupasindhu died issueless.

Khetramohan died leaving behind his wife Sadhabani (plaintiff No.2) and 6 children i.e. plaintiff No.1, defendant No.3, defendant No.4, plaintiff No.3, plaintiff No.4 and defendant No.8.

The 2nd son of Kushei Panda i.e. Bhagabat died leaving behind his wife Mandadori and one son and one daughter i.e. Krushna & Suma. Krushna died issueless.

The 5th son of Kushei Panda i.e. Harihar died leaving behind his wife Jadi and one son i.e. Bhaskar (defendant No.2).

All the suit properties described in the Schedule of the plaint are the joint and undivided properties of the plaintiff, defendant Nos.1 to 5 and defendant No.8 and the said suit properties have not been divided between them physically through any metes and bounds partition.

Previously, one suit for partition was filed by the predecessor of the plaintiffs i.e. Khetramohan Panda along with defendant No.2 vide O.S. No.7/292/61 of 1950/1948-I in respect of the suit properties along with their other joint properties and that suit was decreed preliminarily for partition in the Court of learned Addl. Sub-ordinate Judge, Balasore. In that preliminary decree, the defendant No.2 (Bhaskar Panda, who was the plaintiff No.2 in O.S. No.7/292/61 of 1950/1948-I) was entitled to get 1/8th share and others were entitled to get their respective shares as per such preliminary decree passed in O.S. No.7/292/61 of 1950/1948-I. After that preliminary decree, one of the parties of that suit i.e. Suma (daughter of Bhagabat) approached for final decree and accordingly, in the final decree of O.S. No.7/292/61 of 1950/1948-I, the share of that Suma was carved out and her share was separated making the preliminary decree final only in respect of the share of Suma. After separation of share of Suma through final decree in O.S. No.7/292/61 of 1950/1948-I, the rest other properties of that suit, which are the subject matter of the present suit remained joint as it is between Khetramohan (predecessor of the plaintiffs), Dinabandhu (father of defendant No.5) and Bhaskar (defendant No.2). During the joint ness of the properties of the

present suit, the defendant No.2 (Bhaskar Panda) sold more than his share i.e. in respect of 1/4th share from the suit properties in cultivable as well as in undivided dwelling house to a stranger of their family i.e. defendant No.1 executing and registering sale deed No.2884 dated 31.03.1959, although, he (defendant No.2, Bhaskar Panda) had 1/8th share in the suit properties as per the preliminary Decree passed in O.S. No.7/292/61 of 1950/1948-I. For which, the above alienation made by the defendant No.2 in favour of the defendant No.1 through sale deed No.2884 dated 31.03.1959 in excess of his 1/8th share is void and non-est under law. In spite of execution of such sale deed, the defendant No.1 had not entered into the possession of the joint and undivided suit properties. But some years after execution of such sale deed, the defendant No.1 forcibly occupied some of the cultivable properties and tried to possess the joint and undivided qua dwelling house of the plaintiffs described in Schedule “Ga” of the plaint forcibly on the strength of such sale deed No.2884 dated 31.03.1959. For which, without getting any way, the plaintiffs approached the Civil Court by filing the suit vide O.S. No. 15 of 1991-I praying for partition of their legitimate share from the suit properties and to pass the decree in their favour under Section 4 of the Partition Act, 1893 in order to repurchase the share of the defendant No.1 in the “Ga” schedule undivided qua dwelling house directing her (defendant No.1) to execute and register the sale deed in their favour in respect of the “Ga” schedule properties.

5. Having been noticed from the Trial Court in the suit vide O.S. No.15 of 1991-I, out of all the defendants, only the defendant Nos.1 and 5 contested the suit of the plaintiffs by filing their separate written statements taking their stands almost identically. According to them (defendant Nos.1 and 5), the suit properties have already been partitioned as per the decree passed in the earlier suit vide O.S. No.7/292/61 of 1950/1948-I, for which, the question of partition of the suit properties again does not arise. The present suit for partition filed by the plaintiffs is not maintainable under law, because, after the preliminary decree passed in the previous suit for partition vide O.S. No.7/292/61 of 1950/1948-I, the suit properties have already been divided amicably between them (parties) through metes and bounds partition.

The additional pleas of the defendant No.1 were that, the decree passed in the previous suit vide O.S. No.7/292/61 of 1950/1948-I was not binding upon the defendant No.2, because the same was obtained by practicing fraud.

According to them (defendant Nos.1 and 5), in fact, the defendant No.2 had 1/4th share in the suit properties but not 1/8th share, for which, she (defendant No.1) is a purchaser from defendant No.2 in respect of his 1/4th share. She (defendant No.1) has acquired title through adverse possession over 1/4th share of the defendant No.2 in the suit properties. That apart, after purchase, the suit properties have been settled in favour of the defendant No.1 as per Section 6 and 7 of Orissa Estate Abolition Act, for which, Section 4 of the Partition Act has no applicability to the same. Therefore, the suit of the plaintiffs is liable to be dismissed.

6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 15 numbers of issues were framed by the Trial Court in the suit vide O.S. No.15 of 1991-I and the said issues are:

"ISSUES

1. Have the plaintiffs cause of action to file this suit

2. Is the suit maintainable in its present form

3. Is the suit barred by law of limitation

4. Is the suit bad for non-joinder of necessary parties

5. Have the plaintiffs their right, title and interest in the suit properties

6. Are the “Ga” Schedule properties undivided dwelling

house

7. Were the “Kha” and “Ga” schedule properties partitioned by metes and bounds and are the parties in separate possession of their shares of properties

8. Is the purchase of “Ga” schedule properties by defendant No.1 legal, valid and operative

9. Are the suit properties liable to be partitioned

10. Is the plaint genealogy correct

11. To what reliefs

12. Whether the defendant No.1 is a stranger to the family of plaintiffs

13. Whether the sale deed dated 31.03.1959 executed by Bhaskar in favour of defendant No.1 is valid to the extent of his share he has sold

14. Whether the plaintiffs are entitled to repurchase the share of Bhaskar in “Ga” Schedule which Bhaskar sold to defendant No.1

15. Whether the defendant No.1 perfected his right, title and possession over the land which he has purchased in excess to the share of Bhaskar by way of adverse possession"

7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, the plaintiffs examined two witnesses from their side including the plaintiff No.1 as P.W.1 and relied upon the documents vide Ext.1 to 16. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant No.1 examined 3 witnesses on her behalf as D.Ws.1 to 3 and relied upon the documents vide Ext.A-1 to H-1.

The other contesting defendant i.e. defendant No.5 examined two witnesses on his behalf including him as D.W.1 and relied upon the document vide Ext.A-2 from his side.

8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues in favour of the plaintiffs and against the defendant Nos.1 and 5 and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiffs and against the defendant Nos.1 and 5, the trial court decreed the suit of the plaintiffs preliminarily for partition on contest against the defendant Nos.1 and 5 and ex parte against rest other defendants as per its Judgment and Decree dated 07.01.1993 and 21.01.1993 respectively determining the share of Bhaskar Panda(defendant No.2) as 1/8th share, the share of Dinabandhu (father of defendant No.5) as 1/4th and the share of Khetramohan (predecessor of plaintiffs and defendant No.8) as 3/8th on the basis of the earlier preliminary decree passed in O.S. No.7/292/61 of 1950/1948-I clarifying that, their respective successors in interest or purchasers shall be entitled to the same as per law, but not more than that entitling the plaintiffs to repurchase the 1/8th share of Bhaskar Panda (defendant No.2) in Schedule “Ga” undivided qua dwelling house from his purchaser i.e. from defendant No.1 making it clear that, Bhaskar Panda (defendant No.2) had 1/8th share in the suit schedule properties, but, he has sold 1/4th share, for which, his sale is valid to the extent of 1/8th share in the suit properties.

9. On being dissatisfied with the aforesaid Judgment and Decree passed by the trial court in O.S. No.15 of 1991-I in favour of the plaintiffs and against the defendant Nos.1 and 5, the defendant No.1 challenged the same by preferring the 1st Appeal vide T.A. No.14 of 1993 being the appellant against the plaintiffs and defendant Nos.2 to 8 arraying them as respondents.

After hearing from both the sides, the First Appellate Court dismissed that 1st Appeal vide T.A. No.14 of 1993 of the defendant No.1 concurring/accepting the findings and observations made by the trial court as per its Judgment and Decree dated 31.07.1998 and 12.08.1998 respectively.

10. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the First Appellate Court vide T.A. No.14 of 1993 of the defendant No.1, she (defendant No.1) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiffs and other defendants arraying them as respondents.

11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.

I. Whether on the basis of the materials on record, the court below was correct in taking the view that 54 decimals of land was validly purchased by the present appellant formed part of a dwelling house belonging to an undivided family and whether the Court below committed any error in holding that the plaintiffs are entitled to re-purchase the same under Section 4 of the Partition Act, 1893

II. Whether the suit vide O.S. No.15 of 1991-I for partition was maintainable under law in view of the Judgment and Decree passed in the previous suit for partition vide O.S. No.7/296/61 of 1950 (Ext.13)

12. As per the Judgments and Decrees passed by the Trial Court and First Appellate Court on the basis of the pleadings and evidence of the parties, when the aforesaid formulated substantial questions of law are interlinked having ample nexus with each other, then, all the formulated substantial questions of law are taken up together analogously for their discussions hereunder:

So far as the maintainability of the present suit for partition between the parties in respect of the suit properties, when the suit properties along with other properties were partitioned in the previous suit vide O.S. No.7/296/61 of 1950-1948-I (Ext.13) is concerned,

it is the admitted case of the parties that, after the preliminary decree passed in the previous suit for partition vide O.S. No.7/296/61 of 1950-1948-I (Ext.13) in respect of the suit properties along with other properties, no final decree has been passed in that suit in respect of the properties, those are the subject matter of the present suit. After preliminary decree passed in O.S. No.7/296/61 of 1950-1948-I (Ext.13) in respect of the properties of this suit along with others, the suit properties of the present suit have been recorded jointly in the name of the predecessor of the plaintiffs i.e. Khetramohan Panda, father of the defendant No.5 i.e. Dinabandhu Panda and the defendant No.2 Bhaskar Panda in its next settlement, for which, the plaintiffs filed the present suit praying for partition of their legitimate share from the suit properties.

It is the settled propositions of law that, a preliminary decree in a suit for partition only defines the shares of the parties, for which, the preliminary decree is not executable under law, but, the final decree is executable. Therefore, subsequent suit for partition for the self-same properties is maintainable, if, after preliminary decree, there is no division of the suit properties practically in the field between the parties according to their defined shares in the preliminary decree either mutually or through final decree. So, a co-sharer has got a right to seek fresh partition, if, for some reason, the previous decree for partition becomes unenforceable, because, there has not been actually breaking up of the title and possession due to lack of physical division of properties through metes and bounds partition.

On this aspect the propositions of law has already been clarified in the ratio of the following decisions:

I. In a case between A. Thakurdas and Another Vs. A. Venilal and Others reported in AIR 1977 (Karnataka) 60, preliminary decree is not executable but final decree is executable.

II. In a case between Santan Narain Tewari Vs. Saran Narain Tewari & Others reported in AIR 1959 (Patna) 331, a co-sharer has got a right to seek fresh partition, if for some reason the previous decree for partition becomes unenforceable, so that, there has not been actually breaking up of the title and possession.

III. In a case between Bashiruddin Khwaja Mohiuddin Vs. Binraj Murlidhar Shop at Malkapur & Others reported in AIR 1987 (Bombay) 235, subsequent suit for partition is maintainable, if final decree in respect of earlier suit has not been made.

13. When, undisputedly no final decree has been drawn/passed in the earlier suit vide O.S. No.7/296/61 of 1950-1948-I (Ext.13) after its preliminary decree and when there is no material in the record to show about the division of the suit properties between the parties as per the defined shares in the preliminary decree of O.S. No.7/296/61 of 1950/1948-I and when in its next settlement, the suit properties have been recorded jointly in the name of Khetramohan, Dinabandhu and Bhaskar i.e. predecessor of the plaintiffs, father of the defendant No.5 and defendant No.2, then, at this juncture, by applying the principles of the law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts, it is held that, the present suit for partition filed by the plaintiffs in respect of the suit properties against the defendants including the defendant Nos.1 and 5 is maintainable under law, in spite of passing of preliminary decree in respect of the suit properties and others in the previous suit vide O.S. No.7/296/61 of 1950/1948-I (Ext.13). For which, the findings and observations made by the trial court as well as 1st appellate Court holding that, the suit of the plaintiffs for partition is maintainable under law and the same cannot be held as not maintainable under law cannot be held as erroneous.

14. Undisputedly, the defendant No.1 is a purchaser of the “Ga” schedule suit properties along with other suit properties from the defendant No.2. and the status of the said “Ga” schedule suit properties are homestead and the present R.o.Rs thereof stands jointly in the names of Khetramohan, Dinabandhu and defendant No.1. The name of defendant No.1 has been inserted in the R.o.Rs of “Ga” schedule properties as a purchaser of the share of defendant No.2 (Bhaskar Panda) jointly with Khetramohan Panda and Dinabandhu Panda. So, on the basis of the Kisam/Status of “Ga” schedule properties in the R.o.R and its joint recordings as stated above, it is held that, the said “Ga” schedule suit properties are the undivided qua dwelling house of the plaintiffs because, the plaintiffs and defendant No.8 are the successors of Khetramohan Panda and the defendant No.5 is the successor of Dinabandhu Panda.

It is the undisputed case of the parties that, the defendant No.1 is not the family member of the plaintiffs and defendant Nos.2 to 5 and 8, for which, it is safely conclude that, defendant No.1 is a stranger to the family of the plaintiffs, defendant Nos.2 to 5 and 8.

The defendant No.2 has sold 1/4th share in the suit properties to the stranger-Purchaser (defendant No.1) through registered sale deed No.2884 dated 31.03.1959 (Ext.A-1), though, his defined share in the suit properties as per the preliminary decree passed in O.S. No.7/296/61 of 1950(Ext.13) is 1/8th.

In that suit vide O.S. No.7/296/61 of 1950-1948-I, the defendant No.2 (vendor of the defendant No.1) was the plaintiff No.2 and the predecessor of the plaintiffs and defendant No.8 i.e. Khetramohan Panda was the plaintiff No.1. The definement of share of the defendant No.2 made in the Judgment and Decree of O.S. No.7/296/61 of 1950(Ext.13) regarding his 1/8th share in the suit properties has not at all been varied/altered or set aside till yet. Therefore, on the basis of the unaltered/unchallenged preliminary Decree passed in O.S. No.7/296/61 of 1950(Ext.13), it is held that, the share of the defendant No.2 in the suit properties is 1/8th not 1/4th, but whereas, the defendant No.2 has alienated 1/4th share from the suit properties in favour of the stranger defendant No.1 through registered sale deed No.2884 dated 31.03.1959 vide Ext.A-1, though, the defendant No.2 had not alienable right in respect of 1/4th share, because, he had alienable right only in respect of 1/8th share. Therefore, the findings and observations made by the trial court and 1st Appellate Court that, the alienation made by the defendant No.2 in favour of the defendant No.1 in excess of his 1/8th share in the suit properties is void cannot be held as erroneous.

On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:

"I. In a case between Gorakh Nath Dube Vs. Hari Narain Singh & Others reported in AIR 1973 (SC) 2451, “an alienation made in excess of power to transfer would be to the extent of the excess of power, invalid.”

II. In a case between Ganapath Sahu and another Vs. Smt. Bulli Sahu & Others reported in AIR 1974 Orissa 192, “transfer of property more than the transferor’s interest in lands jointly held with others is not invalid in toto, but it would be held valid and operative to the extent of the transferors interest therein."

15. The defendant No.1 has claimed his exclusive ownership in respect of 1/4th share over the “Ga” Schedule joint and undivided dwelling house of the plaintiffs, defendant Nos.2 to 5 and 8 on the basis of settlement of the “Ga” schedule properties in her name under Sections 6,7 & 8 of O.E.A. Act in O.E.A. Case No.1707/1964-1965 by the OEA Collector as per Ext.E/1 and F/1.

The said contention of the defendant No.1 about his exclusive title over “Ga” schedule properties on the basis of settlement made in his name in O.E.A. Case No.1707/1964- 65 by the O.E.A. Collector cannot be sustainable under law, because, the Order passed in O.E.A. Case No.1707/1964-65 in favour of the defendant No.1 has been reversed by its subsequent O.E.A. Case No.168 of 1979 by the O.E.A. Collector as per its Order dated 25.08.1983 and after reversing the earlier Order (which was passed in favour of the defendant No.1 in O.E.A. Case No. 1707/1964-65), the said suit properties were settled jointly in favour of all the co- sharers thereof i.e. Khetramohan, Dinbandhu and defendant No.1.

As, the defendant No.1 is the purchaser of the share of Bhaskar Panda (defendant No.2) as per Ext.A-1 and the R.o.Rs of the suit properties prior to the fixation of rent in O.E.A. Case were prepared jointly in the names of Khetramohan, Dinabandhu and Bhaskar, then, at this juncture, the Order passed in O.E.A. Case No.168 of 1979 under Sections6,7 & 8 of the O.E.A. Act fixing the rents of the suit properties jointly in the names of Khetamohan, Dinabandhu and defendant No.1 cannot be held as erroneous. That apart, that final order passed in O.E.A. Case No.168 of 1979 has already been reached in its finality. Because, the said order passed in O.E.A. Case No.168 of 1979 on dated 25.08.1983 has not been varied, altered or set aside as yet.

It is the settled propositions of law that, when two orders or two Judgments passed in respect of the same properties between the parties, are inconsistent with each other, in that case, subsequent order or Judgment shall prevail.

On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:

"I. In the cases between Gram Panchayat Bahadurpur Vs. Social Education and Panchayat Officer & Others reported in 2011 (I) Civ.L.T. 397 (P & H), M. Kunhinama Kurup & Others Vs. Mayyarat Krishnan Kurup reported in AIR 1987 (Ker) 13 and Mathura Prasad Rajgaria Vs. State of West Bengal reported in AIR 1973 (Cal) 288 it has been held by the Hon’ble Courts that, When two Judgments being inconsistent with each other will come on same property and between same party, which one will prevail. If in respect of same property and between same parties, two decisions have come and they are inconsistent with each other, later decision shall prevail.

II. In a case between Joydeep Mukherjee Vs. State of West Bengal & Others reported in (2011) 2 SCC 706, “when Judgments in question attained in its finality, they cannot be permitted to be reagitated over and over again”.

16. As per the discussions and observations made above, when it is held on being fully agreed with the findings and observations made by the Trial Court and 1st Appellate Court that, the suit properties are the joint and undivided properties of the parties and the properties described under Schedule “Ga” are the joint undivided qua dwelling house of the plaintiffs, defendant No.2 to 5 and defendant No.8. and the defendant No.1 is a stranger purchaser from defendant No.2 only in respect of the 1/8th share of the defendant No.2, then, at this juncture, a question arises, whether at this stage of the suit, the prayer of the plaintiffs under Section 4 of the Partition Act, 1893 to repurchase “Ga” schedule suit properties from the defendant No.1 is maintainable under law, when the stranger purchaser i.e. defendant No.1 has not filed the suit.

On this aspect the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions.

"I. In a case between Bidyadhar Behera & Others Vs. Nilakantha Rout & Another reported in 2018 (I) CLR 864 at Para Nos.10 and 11 that, “a co-sharer being a plaintiff cannot maintain a suit claiming the right of pre-emption under Section 4 of the Partition Act, 1893, but he can exercise such right in a suit for partition and separate possession brought by stranger purchaser/transferee. The divergent views of different High Courts with regard to the scope and ambit of Section 4 of the Partition Act, 1893 has been settled by the Apex Court in the decision reported in AIR 1997 (SC) 471:Ghantesher Ghosh Vs. Madan Mohan Ghosh & Others”.

II. In a case between Ghantesher Ghosh Vs. Madan Mohan Ghosh & Others reported in AIR 1997 SC 471, “a co-sharer cannot maintain a suit claiming the right of pre-emption but, he can exercise the right in a suit for partition and separate possession filed by the stranger transferee”."

17. When, the stranger purchaser (defendant No.1) has not filed the suit for partition, then, in view of the clarification made by the Apex Court in the ratio of the decision reported in AIR 1997 SC 471:Ghantesher Ghosh Vs. Madan Mohan

Ghosh & Others, the relief under Section 4 of the Partition Act sought for by the plaintiffs is not entertainable under law at present, but, they (plaintiffs) can seek such remedy in the subsequent stage of this suit i.e. after preliminary decree as per law, for which, there is justification under law for making little interference with the impugned Judgment and Decree passed by the Trial Court and First Appellate Court through this 2nd Appeal filed by the defendant No.1.

18. Therefore, the 2nd Appeal filed by the appellant (defendant No.1) is allowed in part on contest but without cost.

19. The Judgment and Decree concerning the preliminary decree passed by the Trial Court in O.S. No.15 of 1991-I and confirmation of the same by the 1st Appellate Court in respect of the determination of shares of the parties in the suit properties are confirmed, but whereas, the passing of the Judgment and Decree in the suit vide O.S. No.15 of 1991-I and confirmation of the same by the 1st Appellate Court under Section 4 of the Partition Act, 1893 entitling the plaintiffs to repurchase the share of the defendant No.2 in “Ga” Schedule suit properties from the defendant No.1 is set aside, giving liberty to the plaintiffs and defendant Nos.2 to 5 and 8 to seek such relief under Section 4 of the Partition Act, 1893 against the defendant No.1 in the subsequent stages of the suit vide O.S. No.15 of 1991-I as per law after its preliminary decree as per the guidelines of the Apex Court in a case between Ghantesher Ghosh Vs. Madan Mohan Ghosh & Others referred to supra in Para No.16 of this Judgment .