1. This second appeal has been filed by plaintiffs/appellants under section 100 of CPC against the judgment and decree dated 16.5.2008 passed by the learned First Additional District Judge, Gwalior, in Civil Appeal No. l8A/08 arising out of judgment and decree dated 14.3.2008 passed by learned IX Civil Judge, Class II, Gwalior, in Civil Suit No. 79A/04 by which suit filed by the appellant/plaintiffs has been dismissed.

2. The briefs facts giving rise to this appeal are that the property in question is comprised in survey No. 536, 537, 538, 540, 541, 542 (Municipal No. 53/ 846) situated at Naugaja Road, Shinde Ki Chhawani, Lashkar, Gwalior was purchased out of family fund by Dr. C.L. Jain (husband of plaintiff No. 1 and father of plaintiff No. 2 and 3) and defendant Prakash Chandra Jain jointly vide registered sale deed in the year 1966. Since then the above mentioned disputed property is in possession of plaintiffs' ancestor. Eight shops have been constructed in the eastern side of the property and they were let out to different tenants through respective rent notes and getting knowledge that the defendant is trying to sell the disputed property on 14.9.2004. Plaintiffs immediately, asked the defendant not to sell the property or any specific part thereof without partition. But, the defendant threatened the plaintiffs that he will sell the property in parts and dispossessed the plaintiffs. The defendants has no right to sell the property without partition by metes and bounds. So, the plaintiffs lodged a complaint with Police Station, Inderganj and published a notice in the newspaper. No partition has taken place between Late Chhotelal Jain and defendant. Partition proceedings taken before the Tehsildar by the defendant are illegal. Chhotelal has died and no notice were served to the plaintiffs. It is further pleaded by the plaintiffs that since the property has been purchased jointly by Late Chhotelal and Prakash Chandra, they have a preferential right to purchase the same by virtue of Hindu Succession Act and they are ready to purchase the same at the market rate.

3. The respondent/defendant has pleaded before the trial Court that the property has been purchased by Late Chhotelal and Prakash Chandra Jain by their personal money and both were having half since in the property. Out of eight shops, four shops of South side are belonging to defendant Prakash Chandra Jain and four shops situated in the North side are belonging to Late Chhotelal and there was an admitted partition between them on 29.12.1979 and, property tax has been imposed accordingly on them. Both plaintiffs and defendants are paying their house tax separately and tax rights of land are also separate. Since there was partition earlier, therefore, there remains no question of partition. The defendants has a right to sell the property which was received by him in his share.

4. The learned trial Court by its judgment and decree dated 14.3.2009 dismissing the suit by holding that disputed property has not been purchased by the joint family fund and partition of the disputed property has taken place between Late Chhotelal and defendant and plaintiffs are not entitled to get the disputed property partitioned. The learned lower appellate Court also agreed with the view of the learned trial Court and dismissed the appeal filed by the plaintiffs/appellants.

5. The following questions of law have been framed by this Court for decision of this appeal.

"(a) Whether a partition could be held on the basis of mutation order passed by the property tax officer for the purpose of collecting property tax separately from the joint owners?

(b) Whether the finding about the prior partition given by the learned Courts below stand vitiated being the same is given without considering the effect of defendant's subsequent application for partition before Tehsildar which amounts to an admission that no prior partition has taken place?

(c) Whether the property, which is not of joint family