Kuldip Singh , Judge

This petition under Article 227 of the Constitution of India has been filed against order dated 3.10.2012 passed by learned Civil Judge (Senior Division), Court No.1 Kasauli in CMA No. 114/06 of 2012 in Case No. 122/1 of 2010.

2. The facts, in brief, are that respondent has filed a suit for declaration against the petitioner that respondent is the sole successor of deceased Rajinder Prakash Sharma co-owner in possession of the suit land to the extent of 1/3rd share land more specifically described in the plaint situate in mauja Garkhal, Hadbast No. 713. Rajinder Prakash Sharma was also co-owner in joint possession of land measuring 23 bighas 18 biswas and building constructed thereupon which respondent has succeeded after the death of Rajinder Prakash Sharma being his daughter and mutation No. 2711 dated 7.11.2007 of mauja Kasauli and mutation No. 869 dated 8.2.2008 of mauja Garkhal and showing the petitioner as absolute owner in possession of share of deceased Rajinder Prakash Sharma are also wrong, illegal, null and void and not binding upon the respondent. As a consequential relief, the decree for permanent prohibitory injunction has also been prayed by the respondent.

3. Rajinder Prakash Sharma was also having some buildings in the Cantonment area at Kasauli known as ‘Cart Road, Arhat Bazar, Kasauli to the extent of 1/3rd share. The respondent is the only daughter and is sole legal heir of deceased Rajinder Prakash Sharma, who died intestate on 16.10.2007. Rajinder Prakash Sharma never executed any Will during his life time.

4. The petitioner after the death of Rajinder Prakash Sharma in collusion with her relatives and other persons forged and fabricated a false and fictitious Will of Rajinder Prakash Sharma to deprive the respondent from her right of succession. The petitioner after the death of Rajinder Prakash Sharma got mutation No. 2711 dated 7.11.2007 and mutation No. 869 dated 8.2.2008 sanctioned in her favour on the basis of alleged Will of Rajinder Prakash Sharma. The respondent is co-owner in joint possession of the suit land to the extent of 1/3rd share including super-structure existing thereupon.

5. The respondent had challenged the mutations before Sub Divisional Collector, Solan, which appeals were dismissed wrongly and illegally. The respondent has challenged the orders of Sub Divisional Collector before Commissioner in Revision Petitions which are pending. On these allegations, the respondent has filed the suit.

6. The petitioner contested the suit by filing written statement in which preliminary objections of locus-standi, improper valuation for purpose of court fee, jurisdiction, estoppel, limitation and the respondent has not approached the Court with clean hands have been taken. It has been stated that respondent is not the daughter of Rajinder Prakash Sharma S/o Sh. Mahesh Dutt. Rajinder Prakash Sharma S/o Mahesh Dutt has executed a Will in favour of the petitioner. On the basis of the Will mutations of the property of Rajinder Prakash Sharma have been attested in favour of the petitioner. The respondent is not an heir of Rajinder Prakash Sharma S/o Mahesh Dutt. The respondent is a stranger to the suit property and she is not in possession of any part of the suit property, which is owned and possessed by the petitioner.

7. The respondent filed replication to the written statement of the petitioner and pleaded that respondent was born from the wedlock of Rajinder Prakash and Ram Dulari. Rajinder Prakash Sharma manipulated some documents in order to avoid his conviction in the case at Kharar. The respondent denied the case put forth in the written statement by the petitioner and reiterated her stand taken in the plaint.

8. The petitioner moved an application under Order 7 Rule 11 read with Section 151 Code of Civil Procedure (for short Code) and Section 7 of the H.P.Court Fees Act, 1968 (for short Act) praying a direction to the respondent to make the good deficiency in cou