JUDGMENT : P. S. Rana, J. 1. Present civil suit is filed for partition of structure and partition of vacant land situated over suit land comprised in khata No.129 khatoni No. 138 khasra Nos. 1439, 1440, 1441, 1442, 1443, 1444, 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1458 & 1460 kita 16 measuring 11902.41 situated in Up Mohal Lakkar Bazar (Market) Ward Bara Shimla Tehsil and Distt. Shimla (H.P.) as shown in jamabandi for the year 2010-2011 Ext.DW-4/D placed on record. It is pleaded that plaintiffs are joint owners of suit property and defendants are also joint owners of suit property. It is pleaded that plaintiffs intend to partition their share. It is further pleaded that plaintiffs requested the defendants to partition the suit property but despite requests defendants did not partition the suit property. Prayer for decree of civil suit by way of partition sought. 2. Per contra written statements filed on behalf of co-defendants No.1, 2 & 4 to 6 pleaded therein that plaintiffs deliberately did not include joint land situated in villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) in the present suit. It is further pleaded that suit is bad for non-joinder of necessary parties. It is further pleaded that correct name of co-defendant No.2 is Mrs. Inderjit Parmar and not Indu Parmar. It is further pleaded that suit has not been properly valued for purposes of Court fee and jurisdiction. It is further pleaded that plaintiffs are out of possession of suit land and they have no cause of action to file the partition suit. It is further pleaded that plaintiffs are estopped by their acts, deeds, conduct and acquiescences to file and maintain the present suit. It is further pleaded that plaintiffs have not approached the Court with clean hands. It is further pleaded that status of parties as co-sharers is not disputed. It is further pleaded that suit for partition of one property situated at Shimla is not maintainable on the ground of partial partition of joint property inter se parties. 3. Separate written statement filed on behalf of co-defendant No.7 Smt. Chander Kanta pleaded therein that suit is filed for partial partition of joint property and same is not maintainable. It is further pleaded that suit has been filed relating to immovable property situated at Shimla town. 3. Separate written statement filed on behalf of co-defendant No.7 Smt. Chander Kanta pleaded therein that suit is filed for partial partition of joint property and same is not maintainable. It is further pleaded that suit has been filed relating to immovable property situated at Shimla town. It is further pleaded that joint property situated at villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) have not been included in the present partition suit. It is further pleaded that suit has not been properly valued for purposes of Court fee and jurisdiction. It is further pleaded that plaintiffs are estopped by their acts, deeds, conduct and acquiescences to file and maintain the present suit. It is further pleaded that plaintiffs did not approach the Court with clean hands. It is further pleaded that khasra Nos. 1439, 1443, 1451, 1458 and 1460 cannot be partitioned and same should be kept joint because area under above khasra numbers is land in relevant record but factually thick forest is situated at spot. It is further pleaded that area of khasra No.1452 is in the shape of path and same cannot be partitioned in accordance with law. It is further pleaded that area mentioned in khasra No.1445 is in the shape of apple orchard and same cannot be partitioned by the civil Court and same will be partitioned under H. P. Land Revenue Act by Assistant Collector Ist Grade of area. It is further pleaded that co-defendant No.7 Smt. Chander Kanta has carried out annual maintenance and repair of building situated over suit land and spent expenditure to the tune of Rs.30,000,00/- (Thirty lac) in connection with maintenance and repair work of the building situated over suit land and is entitled to annual maintenance and repair charges in accordance with law. It is further pleaded that present suit property cannot be divided on the basis of shares recorded in the record of right placed on record prepared by revenue official under H.P. Land Revenue Act 1954. It is further pleaded that shares of parties have not been properly recorded in the record of right prepared by revenue official under H.P. Land Revenue Act 1954. It is further pleaded that plaintiffs are out of possession of the suit land. It is further pleaded that suit property was acquired by late Dr. It is further pleaded that shares of parties have not been properly recorded in the record of right prepared by revenue official under H.P. Land Revenue Act 1954. It is further pleaded that plaintiffs are out of possession of the suit land. It is further pleaded that suit property was acquired by late Dr. Avtar Singh out of income of joint Hindu family fund and suit property in ancestral property for all intents and purposes. It is further pleaded that when Dr. Avtar Singh purchased suit property in the name of (1) Balbir Singh (2) Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh at that time only Balbir Singh was major but he had no source of income and he was student only. It is pleaded that Gurdeep Singh, Kulbir Singh, Sukhbir Singh, Satrajbir Singh were minors at the time of sale deed of suit property. It is pleaded that after amendment in Hindu Succession Act Smt. Chander Kanta d/o late Sh. Avtar Singh became coparcener owner by way of birth in suit property. During pendency of suit codefendant No.7 died and her LR namely Randeep Singh impleaded as co-party. Sh. Randeep Singh filed separate written statement under Order XXII Rule 4 sub clause (2) Code of Civil Procedure 1908 and reiterated pleadings of deceased Smt. Chander Kanta in toto. Prayer for dismissal of suit sought. Plaintiffs also filed replication and reasserted the allegations mentioned in the plaint. 4. As per pleadings of parties following issues framed on 26.08.2014: 1. Whether plaintiffs are entitled for preliminary decree of partition qua shares of parties as alleged? …….OPP. 2. Whether suit is not maintainable and competent as alleged ? OPDs 1,2 & 4 to 7. 3. Whether suit is bad for non-joinder of necessary parties ? OPDs 1,2 & 4 to 7. 4. Whether suit has not been properly valued for purposes of Court fee and jurisdiction …….OPDs 1,2 & 4 to 7. 5. Whether plaintiffs are estopped by their acts, deeds, conduct and acquiescenes to file and maintain the suit? …….OPDs 1,2 & 4 to 7. 6. Whether plaintiffs have not come to Court with clean hands and suppressed material facts? …….OPDs 1,2 & 4 to 7. 7. Whether plaintiffs are out of possession of suit property as alleged. If so its effect? ….OPDs 1,2 & 4 to 7. 8. Relief. 5. …….OPDs 1,2 & 4 to 7. 6. Whether plaintiffs have not come to Court with clean hands and suppressed material facts? …….OPDs 1,2 & 4 to 7. 7. Whether plaintiffs are out of possession of suit property as alleged. If so its effect? ….OPDs 1,2 & 4 to 7. 8. Relief. 5. Court heard learned Advocate appearing on behalf of plaintiffs and learned Advocates appearing on behalf of defendants and Court also perused the entire records carefully. 6. Findings upon issue No.1 with reasons: 6.1 PW-1 Smt. Jasveera Anoop Minhas has stated that plaintiff No.1 is her mother and late Sh. Balbir Singh Parmar was her father. She has stated that plaintiff No.1 Smt. Davinder Parmar is residing at Jalandhar because of her old age she is not able to attend Court. She has stated that Sh. Balbir Singh owned property known as Monastary situated at Upper Mohal Lakkar Market Shimla (H.P.). She has stated that property was in the name of five brothers namely (1) Sh. Balbir Singh Parmar (2) Sh. Gurdeep Singh Parmar (3) Sh. Kulbir Singh Parmar (4) Sh. Sukhbir Singh Parmar (5) Sh. Satraj Bir Parmar. She has stated that Sh. Gurdeep Singh Parmar is not alive and defendants No.2 to 4 are his legal heirs. She has stated that suit property is joint inter se parties. She has stated that building known as Monastary is also situated over suit property. She has stated that kitchen block, cottage area, toilet block, stable area and open area are also situated over suit property. She has stated that entire property consists of an area measuring 11902.41 sq. mtrs. situated in khasra Nos. 1439 to 1452, 1458 and 1460. She has stated that all brothers have equal share in suit property. She has stated that her father Sh. Balbir Singh Parmar also died in the year 1983 and his share was inherited in three equal shares by plaintiffs and her grand mother Smt. Gurbachan Kaur. She has stated that Smt. Gurbachan Kaur was alive at the time of death of her father namely Balbir Singh. She has stated that Smt. Gurbachan Kaur died in the year 2005. She has stated that after death of Smt. Gurbachan Kaur her share devolved upon all children including Smt. Chander Kanta co-defendant No.7. She has stated that property was purchased in the month of September 1956 through registered sale deed. She has stated that Smt. Gurbachan Kaur died in the year 2005. She has stated that after death of Smt. Gurbachan Kaur her share devolved upon all children including Smt. Chander Kanta co-defendant No.7. She has stated that property was purchased in the month of September 1956 through registered sale deed. She has stated that certified copies of jamabandi for the year 2005-2006 are Ext.PW-1/A and Ext.PW-1/B. She has stated that there is no forest or orchard in the suit land. She has stated that she and her mother were in possession of two rooms in the built up house. She has stated that after the death of her grand mother possession was obtained by other co-sharers who are residing there. She has stated that plaintiffs want partition of suit land. She has stated that before filing partition suit she requested defendants to separate shares of plaintiffs and hand over possession but her request was not accepted and her request was delayed on one pretext or other pretext and thereafter present suit for partition filed. She has stated that after death of her father his 1/5th share devolved upon plaintiffs and her grand mother in equal shares. She has admitted that parties to the present suit have joint property in villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab). She has stated that there is one house at village Basiala which is in joint ownership of parties. She has stated that there is also residential house at village Binjon comprised of two stories. She has denied suggestion that khasra No. 1445 is in the shape of apple orchard at the spot. She has stated that she could not state whether khasra Nos. 1439, 1443, 1451, 1458 and 1460 do not fall within definition of land. She has stated that she is not in possession of property situated at Shimla. She has admitted that co-defendant No.7 is residing at Monastary since long. She has denied suggestion that co-defendant No.7 is maintaining the Monastary property out of her own funds. She has denied suggestion that codefendant No.7 has spent Rs.30 lac on the maintenance and repair of monastary property. She has stated that she could not state that funds for purchase of suit property were generated by late Dr. Avtar Singh from joint funds. She has denied suggestion that codefendant No.7 has spent Rs.30 lac on the maintenance and repair of monastary property. She has stated that she could not state that funds for purchase of suit property were generated by late Dr. Avtar Singh from joint funds. She has stated that she does not know that Financial Commissioner Punjab has remanded the case to Assistant Collector vide order dated 30.08.2014. She has admitted that at the time of filing of suit plaintiffs were not in possession of any portion of suit property. 6.2 DW-1 Sh. Satnam Singh has stated that he is posted as Naib Tehsildar Garhshankar Distt. Hoshiarpur (Punjab) w.e.f. 29.12.2011. He has stated that he has brought the summoned record of case No.443 of 2010 title Devinder Parmar Vs. Kulbeer Singh. He has stated that application for partition of land Ext.DW1/A was filed by applicant Devinder Parmar. He has stated that copy of mode of partition is Ext.DW1/B. He has stated that all copies are correct as per original record. 6.3 DW-2 Sh. Vikas Kumar has stated that he is posted as Civil Ahlmad in the Court of Additional Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) w.e.f. 23.03.2013. He has stated that he has brought the summoned record. He has stated that attested copy of plaint is Ext.DW2/A, copy of written statement is Ext.DW2/B and attested copy of affidavit of Ranjodh Singh is Ext.DW2/C. He has stated that attested copy of counter claim is Ext.DW2/D and copy of order dated 11.11.2013 passed by Additional Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) is Ext.DW2/E and copy of application for striking of counter claim dated 23.8.2013 is Ext.DW2/F and copy of written statement on behalf of co-defendants No.3 & 4 is Ext.DW2/G. He has stated that all copies are true and correct as per original record. 6.4 DW-3 Sh. Gurparshad Banga has stated that he is posted as Ahlmad in the Court of Civil Judge (Jr. Dvn.) Garhshankar Punjab w.e.f. 1.7.2013. He has stated that he has brought the summoned record. He has stated that copy of plaint in C.S. No. 614 of 2013 is Ext.DW3/A, attested copy of written statement is Ext.DW3/B. He has stated that he has also brought the record of C.S. No.615 of 2013 title Devinder Parmar Vs. Kulbir Singh and others. Dvn.) Garhshankar Punjab w.e.f. 1.7.2013. He has stated that he has brought the summoned record. He has stated that copy of plaint in C.S. No. 614 of 2013 is Ext.DW3/A, attested copy of written statement is Ext.DW3/B. He has stated that he has also brought the record of C.S. No.615 of 2013 title Devinder Parmar Vs. Kulbir Singh and others. He has stated that copy of plaint is Ext.DW3/C and attested copy of written statement is Ext.DW3/D. He has stated that all copies are true and correct as per original record. 6.5 DW-4 Sh. Partap Thakur Patwari has stated that he is posted as Patwari in the office of Patwar Circle Station Ward Barwa Shimla since March 2014. He has stated that he has prepared copy of missal hakiyat Ext.DW4/A. He has stated that jamabandi was prepared during the year 1950-51 but the same is in Urdu language and he does not know Urdu language . He has stated that copy of jamabandi for the year 2000-2001 is Ext.DW4/B and copy of jamabandi for the year 2005-2006 is Ext.DW4/C and copy of jamabandi for the year 2010-2011 is Ext.DW4/D. He has stated that all copies have been prepared by him and same are correct as per original record. 6.6 DW-5 Ms. Veena Negi Patwari has stated that she is posted as Patwari in Revenue Record Room D.C. Office Shimla. She has stated that she has brought copy of jamabandi for the year 1949-1950 with respect to suit land but the same is in Urdu language and she does not know Urdu language and therefore she is unable to produce copy thereof. 6.7 DW-6 Sh. Hari Krishan has stated that he is posted as Clerk in the office of Sub Registrar (Rural) Shimla. He has stated that original record of sale deed No.44 registered in the office of Sub Registrar on 29.9.1956 is not available in the office because same was burnt in fire which took place in DC office Shimla in December 1972. He has stated that he has brought the certificate from Sub Registrar (Rural) Shimla to the effect that sale deed is not available in the office because same was burnt in fire which took place in December 1972. He has stated that certificate Ext.DW6/A has been issued by Sub Registrar (Rural) Shimla under whom he is working. He has stated that he has brought the certificate from Sub Registrar (Rural) Shimla to the effect that sale deed is not available in the office because same was burnt in fire which took place in December 1972. He has stated that certificate Ext.DW6/A has been issued by Sub Registrar (Rural) Shimla under whom he is working. He has admitted that entire record was not burnt in fire. He has denied suggestion that record summoned is available in the office of Sub Registrar (Rural) Shimla. He has also denied suggestion that certificate Ext.DW6/A is false certificate. 6.8 DW-7 Sh. Sukhbir Singh has stated that he has joint land and house with the plaintiffs at Shimla, Basiala and Binjon. He has stated that he also owned house at village Basiala but the agricultural land is joint with the plaintiffs and co-defendants. He has stated that area of agricultural land is 390 kanals. He has stated that at village Binjon parties had also ancestral land and same is joint. He has stated that market value of the house is about Rs.8 to 10 lacs. He has stated that at village Binjon there is also house and same is also joint and market value of the house is about Rs.3 to 4 lacs. He has stated that house over suit land known as Monastary Estate is about 9 biswas. He has stated that there is also another small house over suit land and there is also open area over suit land. He has stated that one cottage is also situated at the spot over suit land and servant quarters are also situated over suit land. He has stated that orchard is also situated over suit property. He has stated that remaining entire suit land is thick forest area and there are deodar, cheel and oak trees etc. He has stated that area of suit property is not used for cultivation purpose and is also not used for construction of house. He has stated that Dr. Avtar Singh was common ancestor. He has admitted that property at Binjon and Basiala is ancestral property and property in dispute in civil suit is personal property of parties. He has admitted that suit for partition and declaration with respect to suit property situated at Binjon and Basiala is already pending in civil Court at Garhshankar Punjab. Avtar Singh was common ancestor. He has admitted that property at Binjon and Basiala is ancestral property and property in dispute in civil suit is personal property of parties. He has admitted that suit for partition and declaration with respect to suit property situated at Binjon and Basiala is already pending in civil Court at Garhshankar Punjab. He has also admitted that partition proceedings of agricultural land with respect to immovable land situated at Binjon and Basiala Distt. Hoshiarpur Punjab are also pending before revenue Court as well as civil Court. He has stated that in revenue record there is no entry of thick forest relating to suit property. He has stated that he did not file any application for correction in revenue record. He has stated that there are about 20 to 25 tenants in the property. He has stated that he has no dispute with respect to 1/5th share being owned by each parties in suit property. He has stated that he is not aware about the stage of proceedings of cases pending in revenue court and civil court at Garhshankar Punjab. He has denied suggestion that cases at Garhshankar Punjab have attained age of finality. 6.9 DW-8 Sh. Randip Singh has stated that suit property was purchased by Dr. Avtar Singh. He has stated that he was his maternal grand father. He has stated that Dr. Avtar Singh has five sons and he purchased suit property in the name of his sons. He has stated that at the time of purchase of suit property by Dr. Avtar Singh all his sons except Sh. Balbir Singh were minors. He has stated that Sh. Balbir Singh was student at that time. He has stated that money with which suit property was purchased was inherited by his maternal grand father from his father. He has stated that late Smt. Chander Kanta was his mother and was daughter of Dr. Avtar Singh. He has stated that his mother had 1/6th share in suit property. He has stated that after the death of his mother he inherited her share in the suit property. He has stated that in addition to above his mother also inherited share in the suit property from her mother Gurbachan Kaur who had inherited share of her son Balbir Singh. He has stated that plaintiffs are not in possession of any portion of suit property. He has stated that in addition to above his mother also inherited share in the suit property from her mother Gurbachan Kaur who had inherited share of her son Balbir Singh. He has stated that plaintiffs are not in possession of any portion of suit property. He has stated that suit property comprised of Kothi, Kitchen cottage and servant quarters, lawns, tennis court and remaining land is forest land. He has stated that there are about 600 trees over suit property of different species such as Oak, Cedar etc. He has stated that there is common path in the suit property. He has stated that in addition to suit property parties have joint property at village Basiala in District Hoshiarpur Punjab and in village Binjon in District Hoshiarpur Punjab. He has stated that partition proceedings with respect to property situated at Punjab are also pending. He has stated that one set is situated in ground floor and same is in occupation of Satrajbir Singh Parmar and he is also residing in one set since his birth. He has stated that one set is in occupation of Smt. Inderjeet and her children in upper floor of the main building. He has stated that entire suit property was maintained earlier by his mother and after her death he is maintaining suit property and he and his deceased mother Chander Kanta d/o Sh. Avtar Singh have already spent Rs.30 lacs for maintenance of suit property. He has stated that none of other co-sharers have contributed towards maintenance of structure over suit property. He has stated that total market value of the suit property is more than Rs.40 crores. He has stated that plaintiffs have not correctly shown the shares of co-owners in the plaint. He has stated that he was born on 27.04.1968. He has stated that suit property was purchased in the year 1956. He has stated that he has seen sale deed with respect to suit property. He has stated that name of his mother Smt. Chander Kanta does not reflect in sale deed. He has stated that his maternal grand father late Sh. Avtar Singh was Govt. employee. He has denied suggestion that sons of late Sh. Avtar Singh have 1/5th share each in the property known as Monastery. He has admitted that sale deed qua suit property was executed in favour of five sons of late Avtar Singh. He has stated that his maternal grand father late Sh. Avtar Singh was Govt. employee. He has denied suggestion that sons of late Sh. Avtar Singh have 1/5th share each in the property known as Monastery. He has admitted that sale deed qua suit property was executed in favour of five sons of late Avtar Singh. He has admitted that Sh. Balbir Singh died in the year 1982. He has denied suggestion that at the time of death of Sh. Balbir Singh he was in occupation of two rooms in Monastery. He has denied suggestion that said rooms were later occupied by Smt. Gurbachan Kaur. He has denied suggestion that suit property is property of five brothers only. He has admitted that in the revenue record suit property is recorded in the ownership of five brothers. Self stated the property was purchased from funds of Hindu undivided family. He has stated that Hindu undivided family comprised of five sons of Dr. Avtar Singh and his daughter Smt. Chander Kanta and Dr. Rajbeer Singh. He has stated that he could not produce any document showing that there was Hindu undivided family consisting of aforesaid persons. He has stated that he did not file any document relating to Hindu undivided family in his written statement. He has stated that Dr. Rajbeer Singh went to England somewhere in the year 1954. He has stated that Dr. Rajbeer Singh has independent residence. He has denied suggestion that his mother was residing separately from his maternal grand father. He has denied suggestion that all the brothers are having separate residence and separate mess. Self stated that before 2005 they were residing jointly. He has admitted that his mother was divorced in the year 1970. He has admitted that his mother was teacher. He has stated that he could not produce any document in order to prove that suit property was purchased with the help of ancestral funds. He has denied suggestion that his mother Smt. Chander Kanta had no share in the property till death of Smt. Gurbachan Kaur. He has denied suggestion that his mother Smt. Chander Kanta acquired share in the property after the death of Balbir Singh. Self stated that she acquired additional share in addition to her earlier share i.e. 1/6th. He has stated that forest is not recorded in revenue record. Self stated that revenue record is not prepared correctly. He has denied suggestion that his mother Smt. Chander Kanta acquired share in the property after the death of Balbir Singh. Self stated that she acquired additional share in addition to her earlier share i.e. 1/6th. He has stated that forest is not recorded in revenue record. Self stated that revenue record is not prepared correctly. He has stated that he did not apply for correction of revenue record regarding suit property. He has admitted that in revenue record suit property is recorded in the ownership of five brothers. He has admitted that after the death of Balbir Singh his 1/5th share is recorded in revenue record in favour of plaintiffs and late Smt. Gurbachan Kaur. He has admitted that after execution of sale deed suit property was recorded in equal shares between five brothers. He has stated that his mother did not challenge the revenue entries relating to ownership shares of parties in revenue record during her life time relating to suit property. He has admitted that partition proceedings relating to agricultural land and constructed property situated in two villages Basiala and Binjon are under progress at Punjab. Self stated that partition proceedings at Punjab filed after filing of present suit. He has stated that legal heirs of late Dr. Ranbeer Singh Parmar are disqualified legal heirs. He has stated that SLP in this regard is pending before Hon'ble Supreme Court of India. He has stated that he is an Advocate by profession. He has stated that he is an income tax assessee. He has denied suggestion that his mother and he did not maintain Monastary property. He has denied suggestion that suit property was not purchased from joint Hindu family funds. He has also denied suggestion that joint Hindu family of late Dr. Avtar Singh did not exist at any point of time. 7. Following documentaries evidence filed by parties. (1) Ext.PW1/A is copy of sajra kisatbar qua suit property. (2) Ext.PW1/A-1 is copy of jamabandi for the year 2005-2006 qua suit property. (3) Ext.DW1/A is application for partition filed before A.C. 1st Grade Garhshankar by Smt. Davinder Parmar and Jasbeera LRs of deceased Balbir Singh. (4) Ext.DW2/A is copy of suit for declaration filed by Sh. Ranjodh Singh in the Court of Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) title Ranjodh Singh Vs. (3) Ext.DW1/A is application for partition filed before A.C. 1st Grade Garhshankar by Smt. Davinder Parmar and Jasbeera LRs of deceased Balbir Singh. (4) Ext.DW2/A is copy of suit for declaration filed by Sh. Ranjodh Singh in the Court of Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) title Ranjodh Singh Vs. Davinder Parmar and others relating to property situated at village Basiala Tehsil Garhshankar Distt. Hoshiarpur (Punjab). (5) Ext.DW2/B is copy of written statement filed in civil suit title Ranjodh Singh vs. Davinder Parmar. (6) Ext.DW2/C is affidavit filed by Ranjodh Singh in civil suit title Ranjodh Singh vs. Davinder Parmar. (7) Ext.DW2/D is counter claim filed in C.S. 35/2013 pending before Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab). (8) Ext.DW2/E is order dated 11.11.2013 passed in civil suit title Ranjodh Singh vs. Davinder Parmar etc. (9) Ext.DW3/A and Ext.DW3/B are copies of suit for partition in C.S. No.614/2013 filed by Smt. Davinder Parmar and others pending before Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) relating to property situated at village Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab). (10) Ext.DW6/A is certificate given by Sub Registrar Shimla H.P. to the effect that record pertaining to date 29.9.1956 has been destroyed in fire occurred in D.C. office complex during year December 1972. (11) Ext.DW4/A is copy of missal hakiyat settlement for the year 1989-1991 qua suit property. (12) Ext.DW4/B is copy of jamabandi for the year 2000-2001 qua suit property. (13) Ext.DW4/C is copy of jamabandi for the year 2005-2006 qua suit property. (14) Ext.DW4/D is copy of jamabandi for the year 2010-2011 qua suit property. 8. Submission of learned Advocate appearing on behalf of plaintiffs that plaintiffs are legally entitled for preliminary decree of partition qua shares of parties in accordance with law is accepted for reasons hereinafter mentioned. Court has perused the copy of jamabandi for the year 2010-2011 Ext.DW4/D placed on record qua suit property prepared by public official in discharge of official duty. Court has also perused copy of missal hakiyat for the year 1989-1991 Ext.DW4/A placed on record qua suit property. In ownership column of jamabandi Ext.DW4/D placed on record it is recorded that (1) Balbir Singh (2) Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh s/o Sh. Avtar Singh s/o Raj Singh are owners of suit property in equal shares. In ownership column of jamabandi Ext.DW4/D placed on record it is recorded that (1) Balbir Singh (2) Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh s/o Sh. Avtar Singh s/o Raj Singh are owners of suit property in equal shares. In remarks column it is recorded that co-owner Balbir Singh died and his 1/5th share devolved upon Jasveera d/o deceased Balbir Singh and devolved upon Smt. Davinder Parmar widow of deceased Balbir Singh and devolved upon Smt. Gurbachan Kaur mother of deceased Balbir Singh in equal shares vide mutation No.86 attested on dated 5.5.2000. In the present case Jasveera and Davinder Parmar plaintiffs inherited share of deceased Balbir Singh as per Hindu Succession Act 1956. Deceased Balbir Singh died intestate and there is no evidence on record that deceased Balbir Singh has executed any testamentary document during his life time. Smt. Davinder Parmar and Smt. Jasveera inherited share of deceased Balbir Singh and became co-owners of suit property. It is well settled law that co-owner can file partition suit at any point of time. In view of the fact that in the record of right prepared under H.P. Land Revenue Act 1954 Ext.DW4/A names of Smt. Davinder Parmar and Smt. Jasveera are recorded as co-owners of suit property it is held that plaintiffs are legally entitled for relief of preliminary decree of partition qua their shares in accordance with law for maximum use of suit property and in order to avoid multiplicity of judicial proceedings inter se parties qua suit property. Hence it is held that plaintiffs are legally entitled for relief of preliminary decree of partition qua their shares in accordance with law. Issue No.1 is accordingly decided in favour of plaintiffs. Findings upon issue No.2 with reasons: 9. Submission of learned Advocates appearing on behalf of defendants that present civil suit is filed for partial partition and same is not maintainable is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that immovable property is always partitioned khatawise in accordance with law. Latest jamabandi of suit land for the year 2010-2011 is Ext.DW4/D placed on record. It is well settled law that immovable property is always partitioned khatawise in accordance with law. Latest jamabandi of suit land for the year 2010-2011 is Ext.DW4/D placed on record. As per jamabandi for the year 2010-2011 khata number of suit land is 129 and khatoni number of suit land is 138 and khasra numbers of suit land are 1439, 1440, 1441, 1442, 1443, 1444, 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1458 & 1460 kita 16 measuring 11902.41. It is well settled law that immovable property situated at villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) cannot be partitioned alongwith present civil suit because immovable property situated at villages Basiala and Binjon is beyond territorial jurisdiction of High Court. It is well settled law that High Court cannot pass any order qua immovable property situated at Punjab. Jurisdiction of H.P. High Court is only confined relating to territorial jurisdiction of Himachal Pradesh only. In view of the fact that partition suit filed for separation of khata No.129 it is held that present partition proceedings relating to khata No.129 and relating to immovable suit property in Himachal Pradesh is maintainable. It is proved on record that separate partition proceedings are pending in Punjab relating to property situated at villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) in accordance with law. As per section 123 and Chapter IX of H.P. Land Revenue Act 1954 persons whose shares are recorded in last record of rights can file partition proceedings. Names of plaintiffs recorded in ownership column of jamabandi for the year 2010-2011 Ext.DW4/D placed on record. Hence it is held that plaintiffs are legally entitled for partition of suit land. Entries of jamabandi for the year 2010-2011 qua suit land Ext.DW4/D remained unrebutted on record. Defendants did not examine any revenue official in order to rebut entries recorded in zamabandi Ext.DW4/D. Zamabandi Ext.DW4/D is prepared by public official in discharge of official duty and is relevant fact under section 35 of Indian Evidence Act 1872. It is well settled law that entries recorded by public official in public record in discharge of official duty can be rebutted only by way of examination of public official in Court in accordance with law. 10. It is well settled law that entries recorded by public official in public record in discharge of official duty can be rebutted only by way of examination of public official in Court in accordance with law. 10. Submission of learned Advocates appearing on behalf of defendants that suit for partition is not maintainable because most of the area is covered under forest and on this ground suit filed by plaintiffs be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. Court has carefully perused the entries of jamabandi for the year 2010-2011 Ext.DW4/D prepared by revenue official in discharge of his official duty. Forest is not recorded over suit land in jamabandi for the year 2010-2011. Jamabandi Ext.DW4/D has been prepared by public official in discharge of his official duty under H.P. Land Revenue Act and is relevant fact under section 35 of Indian Evidence Act 1872. Defendants did not adduce any positive cogent and reliable evidence on record to rebut jamabandi for the year 2010-2011 Ext.DW4/D placed on record. Even defendants did not examine any revenue official in order to rebut the entry of revenue record prepared under H.P. Land Revenue Act 1954. Jamabandi for the year 2010-2011 Ext.DW4/D placed on record remain unrebutted. 11. Submission of learned Advocate appearing on behalf of co-defendant 7 that in fact suit property was purchased by Sh. Avtar Singh from joint family funds and daughter of Sh. Avtar Singh namely Chander Kanta is also legally entitled to inherit suit property alongwith her brother in equal shares in addition to share inherited by her from Smt. Gurbachan Kaur is also rejected being devoid of any force for reasons hereinafter mentioned. Suit property was purchased in the name of five persons by way of registered sale deed dated 26.9.1956 in consideration amount of Rs.20,000/- (Twenty thousand) (1) Sh. Balbir Singh s/o Sh. Avtar Singh (2) Sh. Gurdeep Singh s/o Sh. Avtar Singh (3) Sh. Kulbir Singh s/o Sh. Avtar Singh (4) Sh. Sukhbir Singh s/o Sh. Avtar Singh (5) Sh. Satrajbir Singh s/o Sh. Avtar Singh. It is well settled law that title in immovable property is passed after registration of sale deed. See AIR 1961 Apex Court 1747 title Ram Saran Lall and others Vs. Mst. Domini Kuer and others. Kulbir Singh s/o Sh. Avtar Singh (4) Sh. Sukhbir Singh s/o Sh. Avtar Singh (5) Sh. Satrajbir Singh s/o Sh. Avtar Singh. It is well settled law that title in immovable property is passed after registration of sale deed. See AIR 1961 Apex Court 1747 title Ram Saran Lall and others Vs. Mst. Domini Kuer and others. There is no positive cogent and reliable evidence on record in order to prove that suit property was purchased from joint funds. 12. Submission of learned Advocate appearing on behalf of co-defendant 7 that Rs.30 lac spent by Smt. Chander Kanta d/o Sh. Avtar Singh and Sh. Randeep Singh legal heir of Smt. Chander Kanta and co-defendant 7 is entitled for compensation is decided accordingly. Whether Sh. Randeep Singh is entitled for compensation to the tune of Rs.30 lac relating to maintenance and repair of structure will be decided at the time of final partition in accordance with law. It is well settled law that at the time of passing of preliminary decree of partition only shares of parties are defined by way of preliminary decree of partition and matter of compensation is always decided in final decree of partition. 13. Submission of learned Advocate appearing on behalf of co-defendant 7 that deceased Chander Kanta became co-owner of suit property in the capacity of coparcener is also rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that coparcenery property is always inherited from three generations. In the present case there is no evidence on record in order to prove that suit property came from three generations. On the contrary it is proved on record that suit property is self acquired property of (1) Balbir Singh (2) Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh by way of registered sale deed dated 26.9.1956 in consideration amount of Rs.20,000/- (Twenty thousand). 14. Submission of learned Advocates appearing on behalf of defendants that at the time of sale deed dated 26.9.1956 vendee namely Balbir Singh was major and was student and other vendees were minors and on this ground partition suit be dismissed is also rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that at the time of execution of sale deed dated 26.9.1956 father of vendees was government employee. It is proved on record that at the time of execution of sale deed dated 26.9.1956 father of vendees was government employee. It is well settled law that sale deed can be executed in favour of minors by father of minors. Sale deed in favour of minors is valid sale deed in accordance with law. 15. Submission of learned Advocates appearing on behalf of defendants that khasra No. 1452 is path and same be kept as joint in final partition proceedings is accepted for reasons hereinafter mentioned. In jamabandi for the year 2010-2011 Ext.DW-4/D khasra No. 1452 has been shown as gair mumkin path. It is well settled law that path shown in record of rights should be kept joint in final partition proceedings for benefits of all co-owners. Order accordingly. Issue No.2 is decided accordingly. Findings upon issue No.3 with reasons: 16. Submission of learned Advocates appearing on behalf of defendants that suit is bad for non-joinder of necessary parties is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that in suit of partition all the co-owners are necessary parties. Plaintiffs have impleaded all the co-owners as co-party in the present suit. Defendants did not adduce any positive cogent and reliable evidence on record in order to prove issue No.3. Hence it is held that present suit is not bad for non-joinder of necessary parties. Issue No.3 is decided against defendants on the concept of ipse dixit. (An assertion made without proof). Findings upon issue No.4 with reasons: 17. Submission of learned Advocates appearing on behalf of defendants that that suit has not been properly valued for purposes of Court fee and jurisdiction is decided accordingly. As per jamabandi Ext.DW4/D it has been specifically mentioned that revenue of suit land is swai. Word =swai' means local rate and surcharge. Actual local rate and surcharge not mentioned in latest jamabandi for the year 2010-2011 Ext.DW4/D placed on record. It is well settled law that when partition of some structure is sought then Court fee should be affixed as per market value of structure involved in partition proceedings. Defendants did not file any valuation report on record of structure involved in partition case. It is well settled law that when partition of some structure is sought then Court fee should be affixed as per market value of structure involved in partition proceedings. Defendants did not file any valuation report on record of structure involved in partition case. It is held that at the time of final partition proceedings Local Commissioner will be appointed and Local Commissioner will assess the market value of structure in accordance with law and thereafter directions will be issued to plaintiffs to file requisite Court fee in accordance with law relating to partition of structure and land situated over suit property. It is well settled law that Court can demand the Court fee in accordance with law at any stage of the case. Issue No.4 is decided accordingly. Findings upon issue No.5 with reasons: 18. Submission of learned Advocates appearing on behalf of defendants that plaintiffs are estopped by their acts, deeds, conduct and acquiescences to file and maintain the present suit is rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.5 is upon defendants No.1, 2 & 4 to 7. Defendants No.1, 2 & 4 to 7 did not adduce any positive cogent and reliable evidence on record in order to prove issue No.5. Hence issue No.5 is decided against defendants No.1, 2 & 4 to 7 on the concept of ipse dixit. (An assertion made without proof). Findings upon issue No.6 with reasons: 19. Submission of learned Advocates appearing on behalf of defendants that plaintiffs have not come to Court with clean hands and suppressed material facts from the Court is also rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.6 is upon defendants. Defendants did not adduce any positive cogent and reliable evidence on record in order to prove issue No.6. Hence issue No.6 is decided against defendants on the concept of ipse dixit. (An assertion made without proof). Findings upon issue No.7 with reasons: 20. Submission of learned Advocates appearing on behalf of defendants that plaintiffs are out of possession and plaintiffs are not legally entitled for relief of partition qua their shares is also rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that possession of one co-sharer is possession of all co-sharers as per law. Submission of learned Advocates appearing on behalf of defendants that plaintiffs are out of possession and plaintiffs are not legally entitled for relief of partition qua their shares is also rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that possession of one co-sharer is possession of all co-sharers as per law. It was held in case reported in AIR 1961 Punjab 528 title Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and others wherein rights and liabilities of co-owner defined as follows: (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of the joint property by one co-owner is in the eye of law possession of all. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of co-owner by another. But in order to negative the presumption of joint possession on behalf of all on the ground of ouster the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as when co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in husband like manner. Defendants did not plead right of adverse possession against plaintiffs in pleadings qua suit property. In view of ruling cited supra it is held that plaintiffs are legally entitled for partition of their shares in joint suit property in accordance with law. 21. Share of parties will be as follows for preparation of preliminary decree of partition of suit land: (A) It is held that after registration of sale deed before Sub Registrar Shimla (H.P.) qua suit property dated 24.9.1956 title of suit property devolved as follows: (1) Sh. Balbir Singh acquired ownership title to the extent of 1/5th share in suit property. (2) Sh. Gurdeep Singh acquired ownership title to the extent of 1/5th share in suit property. (3) Sh. Balbir Singh acquired ownership title to the extent of 1/5th share in suit property. (2) Sh. Gurdeep Singh acquired ownership title to the extent of 1/5th share in suit property. (3) Sh. Kulbir Singh acquired ownership title to the extent of 1/5th share in suit property. (4) Sh. Sukhbir Singh acquired ownership title to the extent of 1/5th share in suit property. (5) Sh. Satrajbir Singh acquired ownership title to the extent of 1/5th share in suit property. (B) It is proved on record that Sh. Balbir Singh died intestate in the year 1983. There is nothing on record in order to prove that deceased Balbir Singh has executed any testamentary document during his life time qua his share relating to suit property. It is held that 1/5th share of deceased Balbir Singh devolved as per section 8 of Hindu Succession Act 1956 as specified in clause 1 of the schedule upon Smt. Davinder Parmar widow of deceased Balbir Singh and upon Jasveera d/o deceased Balbir Singh and Smt. Gurbachan Kaur mother of deceased Balbir Singh in equal shares in suit property. (C) It is proved on record that Sh. Gurdeep Singh also died intestate. There is nothing on record in order to prove that deceased Gurdeep Singh has executed any testamentary document during his life time qua his share relating to suit property. After the death of deceased Gurdeep Singh his 1/5th share devolved as per section 8 of Hindu Succession Act 1956 upon his LRs as follows Smt. Inderjit Parmar widow of deceased Gurdeep Singh, Harminder Singh s/o deceased Gurdeep Singh and Jasveera d/o deceased Gurdeep Singh as specified in clause 1 of the schedule in equal shares in suit property. It is clarified that if at the time of death of Sh. Gurdeep Singh his mother Smt. Gurbachan Kaur was also alive then she had also inherited her share as per section 8 of Hindu Succession Act 1956. (D) It is also proved on record that Smt. Gurbachan Kaur also died intestate in the year 2005. There is nothing on record in order to prove that Smt. Gurbachan Kaur has executed any testamentary document during her life time qua her share relating to suit property. (D) It is also proved on record that Smt. Gurbachan Kaur also died intestate in the year 2005. There is nothing on record in order to prove that Smt. Gurbachan Kaur has executed any testamentary document during her life time qua her share relating to suit property. It is held that share of Smt. Gurbachan Kaur inherited by her devolved as per section 15 of Hindu Succession Act 1956 upon her sons and daughters (including children of any predeceased son or daughter) in equal shares relating to suit property. Relief: 22. In view of findings upon issues No.1 to 7 preliminary decree of partition is passed. Share of parties in the suit land will be as mentioned in para 21 (A), (B), (C) and (D). It is held that final partition cannot be conveniently made without further inquiry. It is further held that final partition of suit land relating to vacant land as mentioned in record of right i.e. Ext.DW4/D Jamabandi for the year 2010-2011 will be conducted by District Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf as per section 54 of Code of Civil Procedure 1908. It is further held that in final partition proceedings expert Local Commissioner will be appointed by Court for partition of structure over suit land in accordance with law. It is further held that Local Commissioner will also be appointed in final partition for assessment of valuation of superstructure and land and thereafter plaintiffs will file Court fee in accordance with law in final partition proceedings. It is further held that path mentioned in khasra No.1452 will be kept joint inter se parties in final partition proceedings. Rights of tenants in structure situated over suit land will be governed by law of partition inter se co-owners in accordance with law. Parties are left to bear their own costs. Preliminary decree of partition of suit property is passed accordingly. Learned Registrar (Judicial) will prepare preliminary decree of partition in accordance with law forthwith. C.S. No.96/2009 relating to preliminary decree of partition is disposed of. Pending applications if any also disposed of.