R. S. A. No. 113 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 113 of 2011 Date of Decision : January 13, 2011 Rameshwar Singh .... Appellant Vs. Lakhbir Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. I. S. Saggu, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendant no.2 Rameshwar Singh. Gian Singh (since deceased and represented by Lakhbir Singh – respondent no.1 as his legal representative) and his brother Nishan Singh – respondents no.1 and 2/plaintiffs filed suit against appellant and proforma respondents no.3 to 8 for separate possession of their share by partition of the suit property i.e. gair mumkin un-operational well measuring 01 kanal comprising of khasra no.54/28. The plaintiffs alleged that they are co-sharers in the suit property to the extent of one-third share, whereas defendants have the remaining two-third share. Suit property is still joint R. S. A. No. 113 of 2011 2 and has not yet been partitioned. Originally, well in the suit property was being used for irrigation, but with the passage of time, it has become non- operational and parties have installed separate sources of irrigation. Plaintiffs are unable to enjoy the fruits of their share in the suit property. Accordingly, they sought partition thereof. Written statement was filed by defendant no.2-appellant only. Defendant no.1 also adopted the same written statement. No other defendant filed written statement to contest the suit. Defendants no.1 and 2 pleaded that the suit is not maintainable in the present form and the plaintiffs have no locus standi to file the suit. On merits, it was denied that the well in question is non-operational. Defendant no.2 alleged that the well is being used by him. Plaintiffs are neither co-owners nor in joint possession of the suit property. Plaintiffs have no right to seek separate possession of their share. Learned Additional Civil Judge (Senior Division), Nawanshahr, vide judgment and decree dated 23.05.2008, dismissed the plaintiffs' suit. However, learned Additional District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 08.12.2010, decreed the plaintiffs' suit holding their share to be one-third in the suit property and holding the share of the defendants to be two-third therein and accordingly, preliminary decree for partition has been passed. Feeling aggrieved, R. S. A. No. 113 of 2011 3 defendant no.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Jamabandis placed on record depicted that both plaintiffs and their brother Santokh Singh had half share in the suit property. Consequently, share of the plaintiffs came to one-third (two-third of one half) in the suit property. Santokh Singh has since died and is represented by defendants no.3 to 7 (proforma respondents no.4 to 8) as his legal heirs. They have one-sixth share (one-third of one half) in the suit property. Defendants no.1 and 2 i.e. proforma respondent no.3 and appellant have the remaining half share in equal shares in the suit property. Learned counsel for the appellant vehemently contended that Civil Court has no jurisdiction to partition the suit property, which is agricultural land and only Revenue Court has jurisdiction to partition the same. The contention cannot be accepted. No such plea was even raised by the contesting defendants in the written statement, and therefore, the same cannot be allowed to be raised for the first time in second appeal. If the defendants had raised any such plea, the plaintiffs would have got opportunity to rebut the same and to depict that the suit property is not agricultural land. Secondly, the plaintiffs specifically pleaded that the suit property is non-operational well. Contesting defendants denied the same R. S. A. No. 113 of 2011 4 and alleged that the well was being used by defendant no.2. However, in the witness-box, defendant no.2 himself admitted in cross-examination that there is no persian wheel installed in the well in question to take out water from it. Defendant no.2 also stated that persian wheel had been removed from the wheel about fifteen years ago. Defendant no.2 further admitted that the well in question was dry for the last 5-7 years i.e. long before the filing of the suit. Thus, statement of defendant no.2-appellant himself reveals that well in question is non-operational. It is also so recorded in jamabandi placed on record. Consequently, the suit property cannot be said to be agricultural land. Learned counsel for the appellant next contended that all co- sharers have not been impleaded as party. The contention is again devoid of substance. No such plea has either been taken by the defendants in their written statement. On the contrary, all co-sharers have been impleaded as party to the suit because only plaintiffs and their brother Santokh Singh and defendants no.1 and 2 have been recorded to be co-sharers in the suit land in jamabandi. All of them including legal heirs of Santokh Singh have been impleaded as party to the suit. Consequently, the suit cannot be said to be bad for non-joinder of parties. In view of almost admitted position that the well in the suit land was non-operational and that plaintiffs have one-third share in the suit R. S. A. No. 113 of 2011 5 land, as depicted by jamabandi, there was no option, but to decree the plaintiffs' suit for partition and the same has been rightly decreed by the lower appellate court. There is no infirmity, much less illegality or perversity in the impugned judgment of the lower appellate court so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. January 13, 2011 ( L. N. MITTAL ) monika JUDGE