Kuldip Chand Sood, J.—This second appeal, under Section 100 of the Code of Civil Procedure, arises out of the judgment and decree of the learned Additional District Judge (I) Shimla dated September 18, 1993.

2. In order to appreciate the controversy, the facts, in brief, may be noticed: One Sh. Jawala Dass was owner in possession of the landed property, including suit property, comprised in Khasra numbers 82 and 83 alongwith two houses situate thereon, situate in mauza Seehpur of Tehsil and District Shimla. Jawala Dass died on February 28, 1972. He was succeeded by his widow Hem Dassi, son Devi Saran and daughter Ram Kali. Devi Saran also died immediately thereafter and was succeeded by his widow Reshmu Devi, Hem Dassi (widow of Jawala Dass) gifted her l/3rd share in the properties left by Jawala Dass, including the suit property, to defendant Nirmala. Thus, Nirmala, Ram Kali and Reshmu became owners in possession of the property of Jawala Dass including the suit property to the extent of l/3rd share each. In the year 1974, Reshmu Devi and Ram Kali gifted their respective shares in the property left by Jawala Dass, (including the suit property) in favour of Hari Singh plaintiff. The plaintiff and defendant, thus, became joint owners in possession of the suit property. The plaintiff became owner to the extent of 2/3rd share and the defendant in respect of other l/3rd share.

3. In the year 1985, plaintiff filed a suit for injunction seeking a restrain on the defendant from demolishing the two houses located on khasra numbers 82 and 83 (suit property). The defendant in an application under Order 39 Rules 1 and 2, CPC was restrained from demolishing these two houses during the pendency of the suit. The suit was, however, dismissed in default in August 6, 1985. Hari Singh plaintiff moved an application for restoration of the suit which was allowed. However in the integrum, it is alleged, defendant demolished the houses and in its place raised two new houses. In these circumstances, the plaintiff withdrew the suit for injunction and filed the present suit.

4. The plaintiff, by the present suit, claims possession of his 2/3rd share in the property, including houses, by way of partition and for rendition of accounts in respect of the benefits derived by the defendant from the houses on the suit property.

5. Defendant resists the suit. Allegations are controverted. Maintainability of the suit is disputed. It is pleaded that the civil courts have no jurisdiction to direct the partition of the suit property in view of the provisions of Section 171 of the H.P. Land Revenue Act. Plea of gift by Ram Kali and Reshmu of their respective shares in the property of Jawala Dass, including the suit property in favour of the plaintiff, is not disputed. It is also admitted that Hem Dassi gifted her l/3rd share to the defendant. According to the defendant, Devi Saran during his life time executed an agreement relinquishing his rights over the suit property comprised in khasra number 82 and the houses situate over it. Reshmu and Ramkali, pleads defendant, had no right, title or interest left in the suit property and, therefore, no valid gift was executed by Reshmu and Ramkali of their respective shares in favour of the plaintiff as they were not owners of the said property. According to the defendant, the material of the house was merely debris without any market value.

6. On the pleadings of the parties, following issues were settled by the learned trial Court: l. Whether the plaintiff is co-sharer in the suit property to the extent of 2/3rd share as alleged?. OPP.

2. If Issue No. 1 is proved in affirmative, whether the plaintiff is entitled to partition of the suit property? OPP.

3. Whether the plaintiff is entitled to rendition of accounts as alleged? OPP.

4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP.

5. Whether the suit as laid is neither competent nor maintainable as alleged? OPD.

6. Whether the suit is