The main legal point established in the judgment is the interpretation of the partition of gair mumkin land and the difference in partitioning agricultural land and non-agricultural land under the Partition Act and Punjab Land Revenue Act, 1887.

PARAMJEET SINGH, J.

This regular second appeal by plaintiffs is directed against the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, S.A.S. Nagar, Mohali, whereby the appeal preferred by the defendants has been allowed and the judgment and decree dated 08.04.2008 decreeing the suit of the plaintiffs, passed by learned Civil Judge (Junior Division), S.A.S. Nagar, Mohali, has been set aside and the suit of the plaintiffs has been dismissed.

For convenience sake, reference to parties is being made as per their status in the civil suit.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced.

However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for possession of 1/2 share of land in khasra No.594 (0-7) situated at village Manauli, Tehsil Mohali, District Ropar, by way of partition and for permanent injunction and directing the defendants to remove the earth from the common well in the suit property. Long and short of the matter is that parties are recorded co-owners in the suit land and plaintiffs have half share in the same. Defendants had filled the well with earth to affect the rights of the plaintiffs as they were using the well for irrigation and drawing drinking water. It is pleaded in the plaint that ancestors of the defendants tried to take exclusive possession of the suit land by raising construction therein. Plaintiffs filed a suit for injunction against the defendants, which was decreed in favour of the plaintiffs in the year 1987. Defendants again brought building material to raise construction. Thus, plaintiffs have prayed for decree for possession of half share of suit land through partition and directing the defendants to remove earth from the common well situated in the said khasra number.

Upon notice defendants appeared and filed their separate written statements. Defendant No.1 in his written statement raised preliminary objections that suit is not maintainable in the present form, defendants are estopped from filing the present suit due to their own act and conduct, plaintiffs have no locus standi to file the present suit as the property has come to his share in the family partition and he is in exclusive possession of the suit property. It was denied that well was being used for irrigation purposes and drawing drinking water. It was averred that irrigation is through nullah which is going through the fields of the parties. It was further averred that construction was made immediately after the partition and parties are in exclusive possession of the property.

Defendants No.2 and 3 filed their separate written statement raising preliminary objections that suit is not maintainable in the present form, suit is bad for non-joinder of necessary parties inasmuch as other co-sharers have not been arrayed as parties and suit is bad on account of partial partition. On merits it was averred that a family partition took place between the shareholders and the suit property fell to the share of defendant No.1. The well is not being used for more than 23 years. All the averments in the plaint were denied and prayer for dismissal of the suit was made.

Replications were filed by the plaintiffs denying the averments in the written statements and reiterating the averments in the plaint.

Court of first instance, on the basis of pleadings of the parties, framed following issues: -

“1. Whether the plaintiff is entitled to the possession of the suit property as prayed for? OPP

2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

3. Whether the suit of plaintiff is not maintainable in the present form? OPD

4. Whether the plaintiffs are estopped from filing the present suit on account of their act and conduct? OPD

5. Whether the plaintiffs have no locus standi to file the present suit? OPD

6. Relief.”

Parties led their respective evidenc