Mr. Surinder Gupta, J.:- This is a Regular Second Appeal against judgment and decree passed by the Courts below whereby suit filed by Mohan Lalrespondent no. 1 seeking possession through partition of the property, as mentioned below, was decreed:-

“(i) One house which consists of two shops, two rooms, stair, verandah on the ground floor and residential house on the upper storey situated near old Hospital Machhiwara Mohalla Gamey Shah Saidian Ward No. 7, shown as red in the rough sketch site plan and bounded as under:-

North : House of Parshotam Dass

South : Shop of Prem Singh

East : Road

West : House of Gobind Ram etc.

(ii) One godown which is having Atta Chakki, Kohlu Cotton Ginning, Kharad which has been shown as red in the rough sketch plan including mini ricesheller bounded as under:-

North : Street

South : Plot of Ram Murti

East : House of Sunder Dass

West : Road

Situated in Ward No. 7, near old Hospital Mohalla Gamey Shah Saidian by way of partition on the basis of registered and valid Will dated 09.06.1981.”

2. In later part of the judgment the parties will be referred as ‘plaintiff’ and ‘defendants’ as per civil suit.

3. The case of plaintiff-Mohan Lal (respondent no. 1) is based on the Will of his father dated 09.06.1981. Before proceeding further following pedigree table will help in understanding the relationship of parties:-

Lachhman Dass

Mohan Lal Prem Lal Piara Lal Nand Lal Sheelo Seeta Rani Ram Murti

Son Son Son Son Daughter Daughter Son

(Plaintiff) (Def. No. 3) (Def. No. 4) (Def. No. 5) (Def. No. 6) (Def. No. 7) (Def. No. 1)

Asha Rani

W/o Ram Murti

(Def. No. 2)

4. The case of plaintiff, in brief, is that Lachhman Dass was owner of the suit property alongwith other properties. During his life time he partitioned his properties and gave suit property to the plaintiff and defendants equally. He also executed a legal and valid Will dated 09.06.1981 vide which he gave property in question to the plaintiff and defendants equally. The plaintiff and defendants constructed house jointly and started living therein but did not partition the property by metes and bounds. Defendant no. 1 executed a gift deed of a house and shop in favour of his wife Asha Rani-defendant no. 2, which was illegal, fictitious and not binding on the right of plaintiff as defendant no. 1 has no right, title or interest to execute the same.

5. The contest in this suit was only between the plaintiff, his brother Ram Murti-defendant no. 1 and Asha Rani-defendant no. 2 wife of Ram Murti. The plaintiff has specifically pleaded that defendants no. 3 to 7 have no right and interest in the suit property and they were impleaded as party only being sons and daughters of Lachhman Dass.

6. Defendants no. 3 to 7 in their separate written statement contested the claim of plaintiff to the extent of his title over the suit property. It was pleaded that suit property was owned by Lachhman Dass who had executed a valid Will dated 06.07.1984 bequeathing the suit property in favour of his sons except plaintiff.

7. Defendant no. 1 in his separate written statement took the preliminary objection that suit was bad for seeking partial partition. It was not properly valued for the purpose of court fee and jurisdiction. It was alleged that Will dated 09.06.1981 on the basis of which plaintiff has filed the instant suit was revoked by Lachhman Dass vide his registered Will dated 06.07.1984. Under the Will dated 06.07.1984, Ram Murti-defendant no. 1 has become absolute owner of suit property and then transferred the same through gift deed to his wife Asha Rani-defendant no. 2. Plaintiff had been admitting Will dated 06.07.1984 to be correct and all the legal heirs acted upon this Will. As per this Will karkhana (factory) on Kohara Road was given to Prem Lal and Piara Lal. House No. 757 (old) in Ward No. 8 adjacent to the house of Bal Kishan was given to Ram Murti-defendant no. 1 and Nand Lal-defendant no. 5. Ram Murti sold his s