MANMOHAN SINGH, J. 1. By this order, I shall dispose of the two applications being IA No. 4874/2007 filed by the plaintiff under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC and IA No.14836/2007 filed by the defendant under Order 7 Rule 11 CPC.

2. The brief facts as per the plaint are that the plaintiff and defendant are real brothers and sons of late Shri Mohan Lal Puri and late Smt.Kaushalya Devi. They are the co-owners in equal proportion of the suit property i.e. 50% each of the property consisting of a plot measuring 518.180 sq.yds. and a residential house built thereon bearing municipal No.S-164, Panchshila Park, New Delhi.

3. By a perpetual sub lease deed dated 18.06.1969 executed between the President of India, Panchshila Cooperative House Building Society Limited on one hand and the plaintiff and the defendant, on the other, a perpetual sub lease was granted in favour of both the plaintiff and the defendant with respect to the said property.

4. The Society vide their letter dated 07.02.2006 has also certified that the plaintiff is a member of the aforesaid Society and one of the owners of the said plot. It is also averred in the plaint that the plaintiff and the defendant jointly applied for permission to construct on the said plot and got the building plans sanctioned from M.C.D. on 09.02.1973.

5. According to the plaintiff, late mother of the parties supervised the construction of the premises and the plaintiff and their mother contributed the funds for construction of the premises and the defendant at the relevant time was serving in the Army and he had no extra money to contribute towards the construction of the house.

6. The construction of the said house was completed and approved by M.C.D. on 26.08.1976 and thereafter the suit property was given on rent and the rent was enjoyed by both the parties equally and was used for maintenance of the house, taxes and expenses for litigation with the tenant, and maintenance of the mother of the parties etc.

7. It is further averred in the plaint that the plaintiff had a joint account with his mother in Bank of India and contributed to the said account enabling her to pay the expenses of litigation and other expenses of the property.

8. The mother of the parties expired in 1994. In view of the above said facts of the present case, the plaintiff and the defendant, having half share each in the suit property, continued to be the co-owners thereof. In October?1995 the plaintiff opened a joint account with the defendant in Union Bank of India at Noida, as the defendant was residing at Noida, by depositing Rs.4,000/-. It was agreed that the rent proceeds of the suit premises shall be deposited in this account.

9. After the death of their mother, the defendant, who is the power of attorney holder of the plaintiff, looked after the litigation and received the rent on behalf of both the co-owners. The defendant acquired a flat at Noida where he was residing while the plaintiff continued to reside in U.S.A.

10. Suit premises was vacated in the year 1998 and on vacation of the premises, the defendant left his flat and began to reside in the suit premises and the plaintiff as per the arrangement between the parties used to reside in the premises whenever he visits India.

11. Further some of the household articles like clothes and paintings etc. were/are lying in the said premises and in view thereof, the plaintiff submits that the plaintiff has throughout enjoyed the joint and constructive possession of the premises as co-owner.

12. It is also stated in the plaint that the plaintiff used to visit India three to four times in a year and used to enjoy the suit property. However, in the absence of the plaintiff, the defendant was managing the premises in a fiduciary capacity from the plaintiff, who is the co-owner of the premises.

13. The case of the plaintiff is that at various times the plaintiff requested the defendant by showing his desire to partition the