ORDER 1. Instant first appeal has been preferred by the defendant No.2 against the judgment and decree dated 31-1-2000 passed by the IInd Additional District Judge, Bilaspur in Civil Suit No. 15-A/97 whereby and whereunder the plaintiff's suit was decreed. Brief facts of the case are as under: 2. House shown in sale deed dated 30-1-86 (Ex. D-2) was owned by Dr. S.N. Datta. After his death on 28-3-1989, it devolved on his widow Smt. Asha Datta, Daughter Ku. Sanghmitra Datta and son Pinakpani Datta. Smt. Asha Datta expired on 7-1-1992. After her death, plaintiff and defendant No. 1 became owner of the above house. 3. Vide public notice by publication in Nav Bharat newspaper dated 68-1992, the plaintiff claimed her absolute ownership in the suit house. Settlement deed dated 2-12-1996 was executed between the parties wherein it has been shown that total land area 2400 sq.ft. has been partitioned between them for its separate management. Defendant No.1 sold 1200 sq. ft. of land to defendant 2 vide sale deed dated 27-2-97 (Ex. D-l-c). Plaintiff published notice in Nov Bharat alleging defendant No. 1 that he is selling the suit house without there being any partition or demarcation, and its purchaser will not get any right or interest in it. On 12-3-1997 (Ex. P-2) a notice was sent by plaintiff to defendant No. 1 claiming right of preemption in the suit property. The said notice was returned unserved (Ex. P-3). 4. On 12-3-1997, the plaintiff filed a suit claiming right of preemption under Section 22(1) of the Hindu Succession Act, 1956 (briefly, ‘the Act’). According to plaintiff, there was no complete partition between plaintiff and defendant No. 1, the suit property still is joint property. She has right of preemption, contrary to it, the same has been sold by the defendant No.1. Settlement deed being unregistered and un stamped is not admissible in evidence. Alternative relief of restoration of possession of the portion occupied by defendant No.2 in excess of 1200 sq.ft., removal of electric poll and water pipe placed by defendant No.2 towards her share was also claimed. 5. The defendant No. 1 proceeded ex-parte. 6. The defendant No. 2 contested the suit by filing written statement and denied each and every allegation. 7. Learned trial Court framed issues. Plaintiff examined herself and one Pradeep Kumar Mitra, photographer as P.W. 2. 5. The defendant No. 1 proceeded ex-parte. 6. The defendant No. 2 contested the suit by filing written statement and denied each and every allegation. 7. Learned trial Court framed issues. Plaintiff examined herself and one Pradeep Kumar Mitra, photographer as P.W. 2. The defendant examined himself and Rajkumar Mishra as DW 2. 8. Learned trial court decreed the suit holding: no prior partition between the parties, settlement deed is not admissible in evidence for want of requisite stamp duty and registration, she has right of preemption, construction made by the defendant No.2 is unauthorized. 9. Shri Ravish Chandra Agrawal, learned Sr. Counsel appearing for the appellant, would submit, as per plaintiff's own case there was partition between plaintiff and defendant No. 1 and settlement deed was executed in its acknowledgement. Oral partition is permissible. As per sale deed (Ex. D-2), total land purchased by the father of plaintiff was 2400 sq.ft. Admittedly 1200 sq.ft. was given to defendant No.1 and therefore, nothing left to be partitioned at a later point of time after demarcation and measurement and plea of incomplete partition on the face, is not correct. The settlement deed being acknowledgment of prior partition is admissible in evidence. Even otherwise, it can be used for collateral purposes. After partition, the plaintiff has no right of preemption. Oral contract for it was not proved and learned trial Court has erred in allowing plaintiff's claim and in decreeing the suit. 10. On the other hand, Shri Deoras, learned Sr. Counsel appearing for respondents supported the judgment and decree and would submit, learned trial Court has rightly arrived at a conclusion that there, is no complete partition, settlement deed being a document of partition effecting partition in presentee, is not admissible in evidence for want of requisite stamp duty and registration. He would further submit that even if it is held that partition had taken place between plaintiff and defendant No.1, preferential right to acquire property under Section 22 of the Hindu Succession Act is not lost. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. Basic questions which need consideration of this Court are : i. Whether partition between the plaintiff and the defendant No. 1 was incomplete ? ii. Whether unregistered deed of settlement dated 2-12- 1996 is admissible in evidence? iii. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. Basic questions which need consideration of this Court are : i. Whether partition between the plaintiff and the defendant No. 1 was incomplete ? ii. Whether unregistered deed of settlement dated 2-12- 1996 is admissible in evidence? iii. Even if it is held that partition had taken place between the plaintiff and the defendant No.1, preferential right to acquire the property under Section 22 of the Act is available to the plaintiff? iv. Whether or not, the defendant no. 2 had occupied the area ill excess of the area he had purchased vide sale deed (Ex. D-1-c). 13. A careful reading of para 2-a, b, c, d, para 3 and 4 of plaint would reveal plaintiff's claim of joint ownership and incomplete partition is based on the plea that the suit house is not straight, meaning thereby the land is more than 2400 sq.ft., although they were in separate possession of 1200 sq.ft. area but more land is available for partition. It was not the case of the plaintiff that there was no partition at all, therefore, the question remains for consideration is whether or not the land over and above 2400 sq.ft. is available to the parties for partition. If it is so, then certainly the partition is not complete. 14. The suit house was purchased by Dr. S.N. Datta. As per sale deed Ex. D-2, the area of the house is 2400 sq.ft. Therefore, the property available for partition was only the house constructed on area of 2400 sq.ft. Admittedly, the plaintiff and the defendant No. 1 were in its separate possession in equal proportion. The only property devolved on them was the suit house purchased by their father. In such circumstances, the plea of incomplete partition is on the face not correct. In view of above, as partition was not incomplete, the deed of settlement whether or not admissible in evidence, is of no consequence, and therefore, the trial court was not correct in holding, no partition took place between the parties. 15. So far as question of right of preemption is concerned, Section 22 of the Hindu Succession Act, 1956 reads as under: - “22. 15. So far as question of right of preemption is concerned, Section 22 of the Hindu Succession Act, 1956 reads as under: - “22. Preferential right to acquire property in certain cases.-(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in Class I of the Schedule, and any' one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.-In this section, "Court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf." 16. The main object of Section 22 of the Act is to prevent the heirs other than transferor from being compelled to be in joint enjoyment of property with stranger or other persons with whom they do not wish to associate themselves. Apparently, Section 22 of the Act envisages the right of preemption in those cases where partition of property is incomplete. Such right cannot be claimed where the property has already been partitioned. Since partition clothes the respective parties with authority to hold their shares independently and absolutely as their separate properties and it could not be the intention of the legislature to put a clog on the power of alienation on the independent owner of the property. Such right cannot be claimed where the property has already been partitioned. Since partition clothes the respective parties with authority to hold their shares independently and absolutely as their separate properties and it could not be the intention of the legislature to put a clog on the power of alienation on the independent owner of the property. An interest in any immovable .property of an intestate, would only mean undivided interest. Once partition takes place, application of Section 22 of the Act comes to an end. Therefore, I am unable to accept the arguments advanced by Shri Deoras that provisions contained in Section 22 of the Act are applicable even after partition. In view of above, since the property has already been partitioned, Section 22 of the Act has no application in the facts and circumstances of the case and the trial Court has erred in granting the decree in favour of the plaintiff. 17. So far as other alternative reliefs regarding restoration of possession of the area alleged to be encroached upon by the appellant, removal of water pipe and electric poll and closer of windows are concerned, the trial Court has not gone into the above facts nor framed issues therefor, and for that retrial is necessary. 18. For the reasons mentioned hereinabove, appeal is allowed in part. Judgment and decree passed by the trial Court being not sustainable in law is set aside and instead, the matter is remitted back to the trial Court to decide the suit with respect to alternative relief of restoration of possession of the area alleged to be encroached upon by the defendant No. 2 over and above the area which he had purchased, removal of water pipe and electric poll and, closer of windows alleged to be opened by the appellant towards plaintiff's side claimed by the plaintiff after framing proper issues on the subject and after giving full opportunity of hearing and adducing additional evidence. 19. Parties to bear their own costs. 20. Record of the trial Court be sent back forthwith. 21. Decree be drawn accordingly. Appeal Partly Allowed. Case Remanded.