A party seeking discretionary relief must approach the court with clean hands and disclose all material facts, as concealment of facts and misrepresentation can lead to the dismissal of the suit.

MANMOHAN SINGH, J.

1. The application IA no.10911/2006 under Order VI Rule 17 read with Section 151 CPC filed by the plaintiff no.1 when listed before this Court for disposal on 02.02.2009, Shri Kirti Uppal, appearing on behalf of the defendant nos.1 to 3, has raised an objection that in view of order dated 04.05.2006 and 03.01.2007, the suit itself is not maintainable and the question of maintainability of the suit should also be decided along with the application.

2. I have heard the learned counsel for the parties on both the aspects of the matter.

3. The brief facts are that the two plaintiffs namely Shri Harjit Singh and Sh. Narender Singh, who are the sons of Sardar Ravel Singh, (defendant no.1 herein, deceased now), and brothers of defendant nos.2 and 3, Shri Daljit Singh and Sh. Gurmeet Singh, have filed the suit for partition and permanent injunction praying therein that a preliminary decree for partition be passed declaring that the plaintiffs have one half share in part of property no.9/56, Kirti Nagar Industrial Area, New Delhi.

4. The main contention of the plaintiffs in the suit is that out of joint family funds and earnings of joint family business, the defendant no.1 acquired properties i.e. (a) 217-218, Double Storey, New Rajinder Nagar, New Delhi and (b) 9/56, Kirti Nagar Industrial Area, New Delhi. The property no.217-218, Double Storey, New Rajinder Nagar, New Delhi was acquired by defendant no.1 in the joint names of defendant no.1 and his wife Smt. Rajinder Kaur where the plaintiffs and defendants along with Smt. Rajinder Kaur were residing. According to the plaintiffs, the said property was mortgaged for carrying on partnership business with Punjab & Sind Bank in which defendant no.2 was also a partner, who then retired and took his share in both movable and immovable properties and went abroad leaving the family in difficulties.

5. The plaintiffs submit that with a view to clear the liability of the Bank as regards the partnership business on 18.08.1994, a family settlement/agreement in respect of residential property no.217-218, Double Storey, New Rajinder Nagar, New Delhi was arrived at in which the defendant no.1 acknowledged the rights of the plaintiffs and defendant no.3. No share was given to the defendant no.2 as he was settled abroad and had already taken his share in the properties.

7. According to the plaintiffs, the defendant no.1 and his wife Smt. Rajinder Kaur entered into a collaboration agreement in 1994-95 for construction of the entire property and as per the family settlement, possession was also handed over by the plaintiffs in compliance of their obligations. The plaintiff no.1 submits that he had cleared the liability of the Bank towards the partnership business and the car loan and was therefore entitled to receive the same.

8. Various litigations were pending between the parties and efforts were made to settle the controversies but the matter could not be settled as the defendant nos.2 and 3 never agreed on anything on account of their desire to derive undue benefits out of the dispute.

9. The plaintiffs submit that all the parties approached Sant Gurmukh Singh Ji [defendant no.4 herein] for his intervention in the dispute and the parties, after duly weighing all the possibilities, agreed to draft a proposal for part of property no.9/56, Kirti Nagar Industrial Area, New Delhi and the said proposal was duly signed by the parties in the presence of defendant no.4 on 28.10.2003. According to the plaintiffs, once the terms had been settled and signed by the parties, the said settlement was binding upon them.

10. The plaintiffs submit that as per the terms and conditions agreed upon, the part of property no.9/56, Kirti Nagar Industrial Area, New Delhi, which is owned by the family, its ownership rights have to be divided in equal parts of 50% each, with an option to the plaintiffs to choose between either of the parts subject to the conditions