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. 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 woul