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Judgment
Aparesh Kumar Singh, J. - Heard learned counsel for the parties.
The order dated 18.5.2012 passed in Title(Partition) Suit No. 45 of 2011 by the Learned Civil Judge, Senior Division, Jamshedpur is under challenge where under he has allowed an application Under Section 4 of the Partition Act, 1893 preferred by the plaintiff/ respondent no.1 herein and directed the Defendant No.8 / petitioner herein to execute the sale deed in his favour in respect of the property described in schedule A of the plaint for a consideration amount of Rs. 11.27,500/-.
Respondents, who were earlier served notice have appeared.
As has been brought to the notice of the Court, under the provisions of Partition Act, 1893, specifically Section 4 there of, it is stated that 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 transferee 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.
As is apparent, the impugned order has been passed at the instance of Plaintiff/respondent no.1 for directing execution of sale deed in his favour on the part of the defendant No. 8 / petitioner. The Act of 1893 specifically Section 8 provides that order of sale made by the Court under Section 2,3, and 4 shall be deemed to be a decree within the meaning of Section 2 of Code of Civil Procedure.
In view of the prescription of law contained in the Act of 1893, it is apparent that this writ proceeding has been wrongly prosecuted on the part of the petitioner in the presence of appellate remedy available to it. In such circumstances, learned counsel for the petitioner seeks permission to withdraw this application in order to seek appellate remedy before Competent Court.
Learned counsel for the respondents does not object to such prayer.
The writ petition is accordingly dismissed as withdrawn with the aforesaid liberty.