Dear Sir- A friend of mine is facing a very quixotic situation. His 4 cousins as plaintiffs filed a suit for partition in respect of a dwelling house against my friend (defendant no:1) and his 3 brothers and a sister as defendants 2 to 5. The suit was decreed. The decree holders filed an FDP. During the pendency of the FDP all the 4 decree holders and defendants 2 to 5 sold their undivided shares in the dwelling house to a stranger to the family without the permission of the Court and without offering my friend a chance to purchase their undivided shares. The dwelling house is not yet partitioned and my friend resides in the suit property while other members reside in their own houses at various localities in the same city. On an application moved by the stranger purchaser to be impleaded as a plaintiff, he was permitted to be impleaded as defendant no:6. and not as plaintiff. My friend is intending to move an application under Section 4 of the Partition Act to buy out the stranger. The question here is whether my friend as Defendant no:1 can file an application under Section 4 of the Partition Act against the stranger purchaser who is defendant no:6. Is it necessary for him to transpose himself as a plaintiff no:5 and then move the application u/s 4 or can he be permitted to file such application even as a defendant. Kindly guide.
