REVA KHETRAPAL, J.

1. The plaintiff in the present suit seeks partition of property bearing No.13-B/4, Old Rajinder Nagar, New Delhi claiming one-half share in the said property.

2. The facts succinctly stated are that in the year 1954, Shri Jagat Ram Sethi had purchased the leasehold rights of the aforesaid property, measuring 752.3 sq. metres (868 sq. yards) from the Delhi Improvement Trust (now DDA) by way of a perpetual Lease Deed dated 12th September, 1956, registered as Document No.3112, Additional Book No.I, Volume 298 with the Sub-Registrar, Delhi on 24th September, 1956. On this plot, Shri Jagat Ram Sethi constructed a two and a half storeyed residential house and continued to hold the same as an owner till the time of his death on 15th April, 1978. He left surviving him Smt. Daya Wati Sethi – his widow, Smt. Prem Sahni – his daughter (the defendant No.2), Shri R.C. Sethi – his son (the plaintiff herein) and Shri I.M. Sethi – his younger son (the defendant No.1 herein). He also left a will dated 06.07.1971 bequeathing the property to his two sons, i.e., the plaintiff and the defendant No.1 in equal shares with the right of residence to his wife during her lifetime alongwith the rental income therefrom.

3. About seven years later, his widow (Smt. Daya Wati Sethi) also died on th June, 1985. She too left a will dated 1st March, 1979 bequeathing the property in equal shares to her two sons. Thus, the plaintiff and the defendant No.1 came to own the property in equal shares.

4. It is the case of the plaintiff that the two brothers came to an understanding with regard to the user of the portions of the property between them till it was partitioned. It is further the case of the plaintiff that in the year 1985, the first floor was rented out by the defendant No.1 to one Shri Rajiv Verma while M/s. Trade Links Private Limited, which had vacated the first floor in 1985, continued to retain the barsati floor as tenant of the defendant No.1. In October, 1991, the plaintiff retired and commenced residence in the ground floor. The defendant No.1 retired in 1995, and then proceeded to recover possession of the first floor from Shri Rajiv Verma. At the time of the filing of the suit, therefore, the ground floor was occupied by the plaintiff, the first floor by the defendant No.1, and the barsati floor was under the occupation of Trade Links Private Limited from whom the defendant No.1 was recovering the rent.

5. The plaintiffs further case is that the plaintiff is being deprived of the proper usufruct of his share in the suit property and is unable to derive any advantage from its immense potential. In other words, the plaintiff states that the property is being wasted and accordingly it has become necessary to seek partition of the same as undivided co-owner.

6. The defendant No.1 has contested the suit by filing a written statement raising a number of preliminary objections to the maintainability of the suit. The first of the said preliminary objections which is the mainstay of the defence of the defendant No.1 is that the suit for partition filed by the plaintiff is not maintainable as the property already stood divided in pursuance of an oral partition between the plaintiff and the defendant No.1 on 5th July, 1985, immediately after the death of their mother on 28.06.1985 and the mutual agreement dated 06.07.1985 between the plaintiff and the defendant No.1. The said mutual agreement was signed by the parties acknowledging the oral partition dated 05.07.1985 and the fact that they had taken possession of their respective portions.

7. The second preliminary objection of the defendant No.1 relates to the impleadment of the defendant No.2 by the plaintiff and it is stated that the defendant No.2 is neither a necessary nor a proper party for the effectual disposal of the case. By way of preliminary objection No.3, the defendant No.1 has pleaded that even otherwise the suit of the plaintiff is not maintainable, as the plaint