Gurbax Rai Majithia, J. - (1.) The unsuccessful Plaintiffs have come up in the regular second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissing their suit of partition of the property in dispute. Facts first:
(2.) I have referred to the parties in the body of the judgment as these were described in the plaint. The Plaintiffs and the defence are descendants of one common ancestor. Plaintiff Nos. 1 to 7 constitute one branch; Plaintiff Nos. 8 to 16 constitute second branch and Plaintiff No, 17 constitutes the third branch. Fourth branch is represented by defendant Nos. 1 to 3 and fifth branch by defendant Nos. 4 and 5. The residential house of the family was partitioned on 30 -8 -1892 and each branch of the common ancestors was given 1/5th share. Deori Kalan marked 'X ' in the site plan was left as a common entrance for the co -sharers to reach their respective portions in the Haweli. The room and the passage lending to it shown as red and marked 'Y' in the site plan were stated to be left joint and also the bath room attached with the well mark. The garden areas adjoining residential Hawelli was partitioned on 23 -6 -1909. The Plaintiffs contended that in the second partition, well mark W and the area of the well mark 'Z' -in the site plan were left joint of the parties. With the passage of time the circumstances have changed and the area in which the property in dispute is situated has devolved into a shop -cum -residential -complex. The roof of Deori Kalan has fallen and the look of the Haweli from the front is deplorable. If the joint property Deori Kalan is partitioned, the cosharers could make proper use of the same.
(3.) The defendants controverted the allegations in the plaint and contested the suit, inter alia, oh the grounds that the suit is bad for non -joinder of necessary parties; that the suit is not maintainable as it was for partial partition: that the proper court fee has not been paid; that the suit is bad for misjoinder of causes of action; that Plaintiff Geeta Ram Kalsy has no right to file the present suit; that the properties in suit are not partible; and that the bath room marked 'Y' was actually allotted to the ancestors of defendants 1 to 3 and the Plaintiffs could not claim partition of the same.;