N.M.KASLIWAL, J. - (1.)LEARNED Single Judge while dismissing the defendants' second appeal had granted leave to appeal to Division Bench under Section 18(2) of the Rajasthan High Court Ordinance, 1949, in view of the importance of the question of law involved in this case and also in view of the conflicting decisions of various High Courts. these circumstances, this appeal has been filed by the defendants against the judgment of learned Single Judge dated March 1, 1974, dismissing the second appeal filed by the defendants
(2.)WE shall mention in brief the facts of the CESS, which are necessary for deciding an important question of law arising in this case.
Plaintiff Moola, who is now represented by his sons in the present appeal, and defendants No. 1 and 2 Potu and Lohrey were members of an undivided Hindu joint family. The joint family owned a house in Karauli. Moola had half share and Potu and Lohrey had jointly half share in the house. Defendants Potu and Lohrey mortgaged their undivided half share with Fakira Lal and Ghisiya Lal for a sum of Rs. 1,500/ -by a registered mortgage deed dated May 15, 1957. Whole of the house was, however, in possession of Gannu Lal and Devi Lal as tenants about 20 years prior to the mortgage. Plaintiff Moola filed a suit for partition and separate possession of his half share in the house in the court of Munsif, Karauli on January 22, 1968. Initially the suit was filed against Potu, Lohrey, Fakira Lal and Ghisiya Lal on January 22, 1968. During the pendency of the suit on March 16, 1908, Potu and Lohrey redeemed the mortgage and sold their half share to Bhagwati Lal and his brothers Hari Charan Lal and Gopal Prasad sons of the erstwhile tenant Devilal by a registered sale deed dated March 16, 1968. Consequently, the plaintiff amended the plaint on May 6, 1968, and impleaded the aforesaid purchasers Bhagwati Lal, Hari Charan Lal and Gopal Prasad as defendants No. 3, 4 and 5 respectively in place of the original defendants No. 3 and 4 Fakira Lal and Ghisiya Lal.

(3.)ALL the defendants resisted the plaintiffs' suit. Defendants No. 3 to 5 inter alia pleaded that Potu and Lohrey had offered to sell their half share in the house to the plaintiff and in the alternative also offered to purchase his share but the plaintiffs remained silent and thereafter Potu and Lohrey sold their share to them after redeeming the mortgage. On the basis of the aforesaid pleadings, the trial Court framed 5 issues on July 30, 1968. On August 30, 1968, the plaintiff moved an application under Section 4(4) of the Partition Act, 1893 (hereinafter referred to as 'the Act') to the effect that the half share sold by Potu and Lohrey to defendants No. 3 to 5 may be directed to be sold to the plaintiffs for a price to be decided by the Court. This application was opposed by both sets of defendants, Defendants No. 3 to 5 stated that the valuation of the whole house was not less than Rs. 10,000/ - and, therefore, the suit was not triable by the Munsif Court. It was further pleaded that they were prepared to purchase the plaintiffs' half share in the house for Rs. 5,000/ -.