Partition – No preliminary decree for partition could be passed in the absence of all the legal heirs.

Mr. Kuldip Singh J.: (Oral) - Impugned in the present regular second appeal is the judgment dated 7.5.2011, passed by learned Additional District Judge, Hisar, affirming the judgment and decree dated 22.5.2008 passed by learned Additional Civil Judge, (Senior Division), Hisar, vide which in a suit for possession by way of partition, it was held that plaintiff- Radhey Sham is entitled to 1/11th share in the suit property mentioned at Serial No. (i) and (ii) whereas rest of the shares are to be inherited by the remaining brothers-sisters of the plaintiff in equal shares.

2. Regarding the property mentioned in the site plan (Annexure P-3), findings are recorded that the boundaries of said property do not tally with the sale deed. Therefore, plaintiff can file a separate suit.

3. The facts of the case are that plaintiff-respondent No. 1 filed a suit for possession by way of partition in respect of three properties mentioned below as (now marked property No. (i) as ABCD, property No. (ii) as EFGH and property No. (iii) as IJKL): -

(i) One house and factory, bounded (marked as ABCD) as under:-
East	102 feet house of Sarwan Bishnoi;
West	102 feet property Brij Lal and Baldev son of Lekh Ram;
North	20 feet thorough passage;
South	20 feet thorough street. (hereinafter to be referred property No. 1)
(ii) One house and factory, bounded (marked as EFGH) as under:-
East	40 feet property Ram Gopal;
West	40 feet property of Mani Ram Bishnoi;
North	20 feet street;
South	20 feet property of Mohan Lal. (hereinafter to be referred property No. 2)
(iii) One house and factory, bounded (marked as IJKL) as under:-
East	65 feet property of Chhabil Dass;
West	65 feet property of Uma Dutt Photographer:
North	20 feet thorough street:
South	20 feet property of Mahan Lal deceased. (hereinafter to be referred as property No. 3)

4. Plaintiff-respondent claims that he along with his five brothers has 1/6th share each in properties No. 1 & 2 and property No. 3 was purchased by him with defendants No. 1 to 3 and 5 in the year 1966- 1967 in which he has 1/5th share.

5. It is further submitted that properties No. 1 and 2 which are marked as ABCD and EFGH are owned by Mohan Lal-father of the plaintiff, who died on 20.6.1994 and thereafter mother of plaintiff namely Gulabi Devi also died on 3.3.2000. Then the plaintiff become the owner in possession of 1/6th share in the property.

6. Plaintiff-respondent sought partition of the said property. Defendants No. 1 & 5; defendant No. 2 and defendants No. 3 & 4 filed their separate written statements.

7. However, the suit was contested by defendants No. 3 and 4, in which they claimed that plaintiff-respondent has sought 1/11th share in the property left behind by their father-Mohan Lal (since deceased).

8. It is stated that in addition to the parties to the suit, parties have also got five sisters namely Smt. Chanderkalan; Smt. Kaushalya Devi; Smt. Santosh Devi; Smt. Satya Bhama and Smt. Snehlata. It was further pleaded that property was already divided in the year 1971 by way of family settlement and the parties were delivered separate possession of the properties which have been detailed in the written statement and reproduced in the lower Court judgment for the sake of brevity, need not to be repeated over here.

9. From the pleadings following issues were framed: -

(i) Whether the plaintiff is entitled for the decree of possession by way of partition regarding property in dispute situated at Adampur, District Hisar, as detailed in the headnote of the plaint on the grounds as stated in the plaint? OPP.

(ii) Whether the plaintiff has no cause of action to file the present suit? OPD.

(iii) Relief.

10. Learned trial Court held that boundaries of the property No. 3 mark