A family settlement that partitions the family property is a valid and enforceable agreement, and the court can mould the relief to grant a decree for partition and confirmation of possession, even if the plaintiff has not specifically sought for such relief in the pleadings.

( 1 ) THE present suit has been instituted by the plaintiff seeking for a decree of specific performance and mandatory injunction. The plaintiff is the son of late Shri Om Prakash Kaushik and defendant No. 1 is the wife of said late Shri 0m Prakash Kaushik. The persons who were impleaded as defendants 2 and 3 in the suit were the other sons of late Shri 0m Prakash Kaushik. Late Shri Om Prakash Kaushik was given a lease in respect of a plot of land bearing No. 17 measuring an area of 200 sq. yds. at 17, Vasudha Enclave, Pitam Pura, Delhi-110034 and the deed of Perpetual Sub-Lease in respect thereof was registered as document No. 5985 on 7. 11. 1978 in the office of Sub-Registrar, Delhi. Late Shri Om Prakash Kaushik being the sub-lessee of the said plot of land appointed the defendant No. 1 as his nominee, and thereafter he expired on 11. 7. 1991. On his death the aforesaid plot of land was mutated in favour of and in the name of defendant No. 1.

( 2 ) BY selling another property which was known as Narela property an amount of Rs. 51,000. 00 was received by defendant No. 1 and the three brothers. With the aforesaid amount of Rs. 51,000. 00 and personal contributions of about Rs. 30,000/ - made by each of the three brothers construction was made on the aforesaid plot of land located at 17, Vasudha Enclave, Pitam Pura, Delhi. For making such construction necessary permission was obtained by getting the plan sanctioned by the Delhi Development Authority. Upon completion of construction necessary occupancy certificate was granted by Delhi Development Authority.

( 3 ) THE plaintiff and the defendants entered into a settlement in respect of the aforesaid property and in terms thereof a Deed of Settlement was executed on 17. 3. 1994, in terms whereof the plaintiff was to pay to his two brothers Rs. 70,000. 00 each subject to possession and relinquishment of the rights of the said brothers in the ground floor. As per the said settlement deed the entire existing ground floor of the building except the portion earmarked and demarcated for use and occupation of the defendant and the gate, car porch and stair-case would belong to and be owned by the plaintiff. In terms thereof the plaintiff also paid to his two brothers namely - defendants 2 and 3 Rs. 70,000. 00 each. In the aforesaid settlement deed it was further provided that in lieu of the exclusive rights and interest of defendants 2 and 3 in the ground floor of the property which they relinquished in favour of plaintiff on receipt of Rs. 70,000. 00 each, the plaintiffreln quished his rights and interests in the floors above the ground floor on which construction was to be made by said defendants. The defendants 2 and 3 completed construction on first floor and the second floor portion upon the then existing ground floor portion of the said property and they sold out their properties to third parties and for that reason their names were deleted from the array of defendants. Therefore, the suit at present is between the plaintiff and the defendant, who is his mother.

( 4 ) UPON service of summons on the defendant none appeared on behalf of the defendant No. 1 nor any written statement was filed on her behalf and accordingly, it was ordered that the suit would proceed ex parte as against the said defendant No. 1. At the request of the plaintiff, he was allowed to lead evidence by filing an affidavit which was filed and is on record. The documents filed by the plaintiff were also given exhibit marks which also are on record.

( 5 ) THE plaintiff has filed the present suit for passing a decree for specific performance of the said agreement dated 17. 3. 1994 relating to family settlement dated 17. 3. 1994 and also for perpetual injunction restraining the defendant from disposing of, alienating, selling or creating any third party interest in respect of the suit property. At the time of issuance of summons an ad interim temporary injunction was also granted by this Court in fa