JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellants have assailed the judgment and decree passed by the Court of learned Sub Judge, Chamba, in Civil Suit No. 124 of 1993 dated 28.03.2001, vide which learned Sub Judge allowed the suit so filed by the plaintiffs, and also the judgment and decree passed by learned District Judge, Chamba, in Civil Appeal No. 25 of 2001 dated 19.01.2002 vide which learned Appellate Court affirmed the judgment and decree passed by learned trial Court and dismissed the appeal filed by the present appellants. 2. Brief facts necessary for adjudication of the present case are that respondents/plaintiffs hereinafter referred to as the plaintiffs filed a suit for possession by way of partition of the suit land comprised in Khasra No. 8444, measuring 53 square yards, Khasra No. 8446, measuring 271 square yards, situated in Mouza Chamba Town-I, Pargana Panjla, Tehsil and District Chamba, H.P. Land which was subject matter of Civil Suit No. 16/1976 and was kept joint as per decree dated 29.04.1991 passed in the said civil suit by learned Senior Sub Judge, Chamba. As per the plaintiffs, they were entitled to 44/48 shares of the suit land. According to the plaintiffs, need for partition arose as the parties were not in good terms with each other, which necessitated the filing of the suit. 3. The claim of the plaintiffs was contested by defendants No. 1 to 6, who took the stand that the suit was not maintainable as the same was hit by the provisions of Section 11 of the Codee of Civil Procedure and the suit land being a courtyard could not be partitioned as per the custom. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the suit property is jointly owned and possessed by the parties as alleged? OPP 2. Whether the plaintiffs have 44/48 shares in the suit property as alleged? OPP 3. If issue No. 2 is proved in affirmative, whether the plaintiffs are entitled to the decree of partition as alleged? PPP 4. Whether the suit is not maintainable in the present form as alleged? OPD 5. Whether the "Saihan" can not be partitioned as per the custom prevalent in the area as alleged? OPD 6. OPP 3. If issue No. 2 is proved in affirmative, whether the plaintiffs are entitled to the decree of partition as alleged? PPP 4. Whether the suit is not maintainable in the present form as alleged? OPD 5. Whether the "Saihan" can not be partitioned as per the custom prevalent in the area as alleged? OPD 6. Whether the path of the defendants will be blocked in case the plaintiffs raise construction as alleged. If so, its effect? OPD 7. Whether this Court has got no jurisdiction to entertain and dispose off the present suit? OPD 8. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPP 9. Whether the plaintiffs are etsopped from filing the suit by their act and conduct? OPD 10. Whether the instant suit is barred by the principle of res-judicata as alleged? OPD 11. Relief. 5. On the basis of evidence led by the parties in support of their respective stands before learned trial Court, the following findings were returned to the issues so framed by it:- Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: Yes. Issue No. 4: No. Issue No. 5: No. Issue No. 6: No. Issue No. 7: No. Issue No. 8: No. Issue No. 9: No. Issue No. 10: No. Issue No. 11: Suit of the plaintiff decreed (Relief) vide operative portion of the judgment. 6. Learned trial Court held that jamabandi Ext. P-1 clearly demonstrated that the suit land was joint and that plaintiffs and defendants were in joint possession over the same. It further held that from the contents of Ext. P-1 as also report of Local Commissioner which was attached with Ext. P-6 i.e. copy of the final decree passed in the earlier suit it was evident that plaintiffs were having 44/48 shares in the suit land and that defendants were having 4 out of 48 shares. Learned trial Court held that no evidence to rebut the same was produced by the defendants. Learned trial Court also held that the defendants had failed to prove by way of any convincing evidence that there was any custom in that Ilaqua that Sehan could not be partitioned. It further held that the suit was not barred by the principle of res judicata because earlier the land subject matter of the present suit was kept joint with the consent of the parties. It further held that the suit was not barred by the principle of res judicata because earlier the land subject matter of the present suit was kept joint with the consent of the parties. Learned trial Court also returned the finding that from the evidence adduced by the parties it could not be said that path of defendants would be blocked if the suit land was partitioned as per their respective shares. On these basis, learned trial Court decreed the suit by passing a preliminary decree for possession by way of partition of the suit property comprising Khasra No. 8444, measuring 53.6 square yards and Khasra No. 8446, measuring 271 square yards, situated in Mouza Chamba Town, Parg. Panjla, Tehsil and District Chamba, H.P. in favour of the plaintiffs and against the defendants. Learned trial Court also held that the plaintiffs were entitled to get their shares separated in the suit property by metes and bounds. 7. In appeal, the judgment and decree so passed by learned trial Court was upheld. Learned Appellate Court while concurring with the findings returned by learned trial Court held that the documentary evidence demonstrated that the suit land was not partitioned and was kept joint between the parties and joint nature of the same also stood admitted by both the parties. Learned Appellate Court also held that Ext. P-1 copy of jamabandi demonstrated that the suit land was joint between the parties. It also held that Ext. P-1 demonstrated that the share of the defendants was to the extent of four shares over the suit land. It also held that the contention of the defendants of non-partition of Sehan neither stood pleaded nor proved and that onus to prove the custom was on the defendants who had failed to discharge the same. Learned Appellate Court also held that a perusal of adjudications in the previous litigations between the parties demonstrated that the suit land was kept joint with the consent of the parties. On these basis, it held that the contention of the defendants that the suit was barred by the principle of res judicata had no force. Learned Appellate Court also held that a perusal of adjudications in the previous litigations between the parties demonstrated that the suit land was kept joint with the consent of the parties. On these basis, it held that the contention of the defendants that the suit was barred by the principle of res judicata had no force. Learned Appellate Court also held that contention of the defendants that approach to their house would be closed in case of partition, was also incorrect as land measuring 37- 1 square yards had already been kept as ''Gair Mumkin Rasta'' in Khasra No. 8436, which was also evident from Ext. P-1. On these basis, learned Appellate Court held that there was no infirmity with the judgment and decree passed by learned trial Court and it affirmed the same. 8. Feeling aggrieved, the appellants have filed the present appeal. 9. This appeal was admitted on 15.05.2002 on the following substantial questions of law:- (a) Whether the present suit was barred by the principles of res judicata after a final decree of partition having already been passed by a competent court of law on 29/4/1991, which decree had attained finality and had not been challenged? (b) Whether the plaintiff was entitled to file the present suit in view of his act and conduct and more particularly the estopple created by the judgment Exhibit P/6? 10. I will deal with both the substantial questions of law together. 11. Learned counsel for the appellants has vehemently argued that both learned Courts below have erred in not appreciating that the suit filed by the respondents/plaintiffs was not maintainable as it was hit by the principle of res judicata. As per learned counsel, the suit land already stood partitioned by way of final decree having been passed by the competent court dated 29.04.1991 and the same had attained finality. This very important aspect of the matter, as per learned counsel for the appellants, stood ignored by learned Courts below. He has further argued that the suit was not maintainable in view of the contents of Ext. P-6 as contents thereof estopped the plaintiffs from instituting the suit in issue. 12. This very important aspect of the matter, as per learned counsel for the appellants, stood ignored by learned Courts below. He has further argued that the suit was not maintainable in view of the contents of Ext. P-6 as contents thereof estopped the plaintiffs from instituting the suit in issue. 12. On the other hand, learned counsel for the respondents has argued that there was no infirmity with the findings returned by both learned Courts below as they had rightly held that the suit was not barred by the principle of res judicata as the suit land was not partitioned by metes and bounds vide judgment and decree dated 29.04.1991 but was kept joint between the parties with consent. 13. I have heard learned counsel for the parties and have gone through the records of the case as well as the judgments passed by both learned Courts below. 14. Both the learned Courts below have held that the suit was not barred by the principle of res judicata pursuant to final decree of partition having already been passed on 29.04.1991 in a previous litigation between the parties. These findings have been returned by learned Courts below by holding that the disputed land was kept joint by the parties with consent and, therefore, it could not be said that the subsequent suit filed by the present respondents was barred under Section 11 of the Code of Civil Procedure. 15. In my considered view, findings so returned by learned Courts below cannot be faulted with. The final decree which stood passed in the previous litigation between the parties is on record as Ext. P-6. A perusal of the said exhibit demonstrates that report of the Local Commissioner was ordered to be treated as part of the final decree. A perusal of the report of Local Commissioner demonstrates that the suit land comprised in Khasra No. 8446 described as Gair Mumkin Sehan was kept as a separate joint Khata with the consent of the parties and that the same was not partitioned by metes and bounds. Not only this, a perusal of the said exhibit also demonstrates that out of the total shares, defendants had 04 shares in the said Khata. 16. Said documents clearly and categorically demonstrates that the suit land subject matter of the present lis was not partitioned by metes and bounds vide Ext. Not only this, a perusal of the said exhibit also demonstrates that out of the total shares, defendants had 04 shares in the said Khata. 16. Said documents clearly and categorically demonstrates that the suit land subject matter of the present lis was not partitioned by metes and bounds vide Ext. P-6 and the same was kept as joint with the consent of the parties. That being so, but obvious either of the parties had a right to get the same partitioned in future. Therefore, filing of the suit for having the said suit land partitioned was not barred under Section 11 of Civil Procedure Code. The principle of res judicata is not applicable in the present case because there was no adjudication between the parties over the suit land which is the subject matter of this lis. Findings returned to this effect by both learned Courts below are correct and are borne out from the records of the case. Similarly, Ext. P-6 does not creates any estoppel precluding the plaintiffs herein from filing the suit because as already mentioned above, the land subject matter of the suit so filed by the plaintiffs was never partitioned vide Ext. P-6. Substantial questions of law are answered accordingly. 17. In view of above discussion, as there is no merit in the appeal, the same is dismissed. Miscellaneous application(s) pending, if any, stand disposed of. Interim order, if any, also stands vacated.