JUDGMENT :

Rajiv Sharma, J.

This Regular Second Appeal is directed against the judgment and decree dated 29.3.2012 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No. 4-N/14 of 2008.

2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a civil suit No. 34/1 of 1988, titled as Dropti Devi v. Smt. Chawli Devi and others in the court of learned Senior Sub Judge, Sirmaur District at Nahan for effecting partition of houses and vacant land comprised under Khata No. 230, Khatauni No. 344, 345 and 346, Khasra Nos. 39, 40, 41, 42, 43, 44, 46, 47 and 48 measuring 304- 68 square meters situated in Muhalla Rani Tall, Nahan, District Sirmaur. Plaintiff had claimed th share in the property. The suit was dismissed by the learned Senior Sub Judge, Nahan on 31.12.1992. Plaintiff preferred an appeal before the learned District Judge bearing Appeal No. 24-N/13 of 1993. The same was accepted by the learned first appellate court. Learned first appellate court passed the preliminary decree and defined the share of plaintiff as th and Smt. Chawli Devi, Bholar and Sadhu Ram having th share each in the property. Smt. Chawli Devi died and she was succeeded by Smt. Santosh Kumari. She also preferred Regular Second Appeal No. 204 of 1994 before this Court. The same was dismissed by this Court on 20.9.2001. Sh. Bholar has also died and his legal representatives were also brought on record. Thereafter, an application was filed before the trial court for passing of final decree. Objections were filed by the appellants-respondents-defendants (hereinafter referred to as defendants for convenience sake). The same were dismissed by the trial court. Defendants preferred civil revision bearing No. 109 of 2005 in this Court. The same was dismissed on 7.12.2005. Fresh objections were also filed by the defendants to the report of the Local Commissioner on 26.10.2006. The same were decided on 26.11.2007 by the learned Civil Judge (Senior Division). Thereafter, final decree was passed on 10.12.2007. Defendants, namely, Santosh filed an appeal against the orders 26.11.2007 and 10.12.2007 before the learned District Judge Sirmaur bearing Civil Misc. Appeal No. 4- N/14 of 2008. He dismissed the same on 29.3.2012. Hence, this Regular Second Appeal.

3. Mr. Romesh Verma, on the basis of substantial questions of law framed, has strenuously argued that both the courts below have acted illegally and the jurisdiction has not been exercised by them properly. He then argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. He also argued that suit bearing civil suit No. 34/1 of 1988 filed by the plaintiff was not competent for partition, more particularly, when dwelling house was involved. He has also argued that the Local Commissioner was required to be examined by the Court before relying upon his report. He has further argued that all the co-sharers were not made party in the civil suit. According to him, the sale deed of the part of the suit land was executed in the year 1959 and vendee of the said sale deed has not been arrayed as party.

4. I have heard Mr. Romesh Verma and have perused the judgment passed by the first appellate court meticulously.

5. The preliminary decree was passed by the learned District Judge on 2.4.1994. He has defined the share of the parties. Regular Second Appeal preferred against this preliminary decree was also dismissed by this Court on 20.9.2001. Thereafter, an application was filed, as discussed herein above, for passing final decree in civil suit No. 34/1 of 1988 by way of Civil Misc. Application No. 50/6 of 2002. Defendants filed objections to the application preferred by the plaintiff. These were rejected. Thereafter, Civil Revision No. 109 of 2005 was filed and the same was dismissed by this Court on 7.12.2005. Defendants again