Mukundakam Sharma, J.

( 1 ) THIS appeal arises out of judgment and decree dated March 8, 2004 passed by the learned Additional District Judge in Suit No. 311 of 2003 whereby the learned additional District Judge passed a preliminary decree for partition of the suit land and also for payment of mesne profits.

( 2 ) THE aforesaid suit was filed by respondent No. 1, who is the brother of the appellant herein and also of the respondents 2 to 5. In the said suit a decree was sought for partition of the suit property and also for possession and also for recovery of an amount of Rs. 36,000/- and for rendition of accounts. On the basis of the pleadings of the parties the learned trial court framed as many as seven issues. The parties also led their evidence and thereafter the learned Additional District Judge proceeded to hear the parties. He passed a preliminary decree of partition in the suit and also for payment of mesne profits by the appellant at the rate of Rs. 1,000/- per month from the date of filing of the suit till handing over of possession of the half portion of the property.

( 3 ) BEING aggrieved by the aforesaid judgment and decree, the appellant, who was defendant No. 1 in the suit, filed the appeal making the plaintiff as respondent No. 1 and the defendants 2, 3 and 4 as respondents 2, 3 and 4 in the present appeal. Notice was issued on the appeal with a direction to the parties to maintain status quo of possession and title of the property. Thereafter a joint application was filed in this court by the appellant, the respondent No. 1 and the respondent No. 2. This application was registered as C. M. No. 9765/2004 and was dated 5. 8. 2004. In the said joint application they have stated that they have arrived at a settlement out of court amongst themselves in respect of the subject-matter of the suit and that in terms of the aforesaid settlement the appeal could be disposed of. The said joint application is filed by all the aforesaid parties and is also supported by their affidavits. In paragraph 2 of the said application it is stated that the parties to the appeal have resolved all their disputes amicably in order to achieve the family harmony. The terms of the settlement are also set out in the said application. It is also stated in the joint application that the defendants 3 to 5 of the original suit (respondents 2 to 4 in the present appeal) have already given their no objection and they do not claim any right, title and interest in the said property. It was stated in the said application that, therefore, the appeal be disposed of in terms of the aforesaid settlement arrived at.

( 4 ) THE aforesaid application was being taken up for consideration and at that stage an application being application registered as C. M. No. 10349/2004 under Order I Rule 10 of the Code of Civil Procedure was filed by Shri Manoj Gulshan, who is the son of shri Jai Dev Gulshan, respondent No. 1 herein. In the said application he has stated that the said suit property is an HUF property as it was purchased in the name of late shri Manak Chand Gulshan son of Shri Kirpa Ram and, therefore, the applicant has a share in the said property and, therefore, the suit could not have been filed without making him a party, nor any settlement could be arrived at by the parties without the consent and approval of the applicant. It is also stated that if the compromise is allowed to be arrived at between the parties and the suit property is partitioned then the applicant, who is a necessary party in the suit, will suffer an irreparable loss and injury as he has share in the said property and since the decree was obtained at the back of the applicant without making him a party although he was a necessary party for the determination of the suit. In view of the aforesaid stand taken by the son of the respondent No. 1 herein, we heard the learned counsel appearing for the parties on both the applications.

( 5 ) IT is contended by the counsel appearing for the

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