REVA KHETRAPAL, J.

IA No.15229/2010 (under Order VII Rule 11 read with Section 151 CPC filed by the defendant No.1)

1. The defendant No.1 in the aforesaid suit has filed the present application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint inter alia on the ground that the same is barred by limitation.

2. The prayer in the present plaint is for a decree of partition by metes and bounds in favour of the plaintiff and handing over of the vacant physical peaceful possession of one-fifth portion of the suit property being House No.R-66, Greater Kailash-I, New Delhi measuring 311 square yards to the plaintiff and against the defendants and in case the same is not possible, for sale of the suit property and division of the sale proceeds in equal shares i.e. one-fifth share each between the parties to the suit. The plaintiff further prays for a decree for mesne profits/damages for unauthorized use and occupation of four-fifth portion of the suit property by the defendant No.1 as contemplated under Order XX Rule 12 of the Code of Civil Procedure with effect from 01.12.2008 till the date of handing over of the possession of one-fifth share of the suit property to the plaintiff. A decree of permanent injunction restraining the defendants from selling, alienating, transferring, mortgaging or parting with the possession of the suit property is also prayed for.

3. It is averred in the plaint that Shri Ram Singh Srivastava, father of the parties to the suit, who died intestate on 06.11.1988 was the owner of the suit property. The plaintiff is the daughter and one of the legal heirs of late Shri Ram Singh Srivastava. The defendant No.1 is the son and the defendants No.2 to 4 are the daughters of the deceased. The wife of the deceased Shri Ram Singh Srivastava and mother of the parties to the suit, Smt. Dhanwati Srivastava died in the year 1995 and thus, the plaintiff and the defendants No.1 to 4 are his only legal representatives.

4. The defendant No.1 filed a probate petition being Probate No.52/1999 in this Court propounding a Will dated 28.08.1977, whereby the entire house was stated to be bequeathed to him to the exclusion of the plaintiff and the defendants No.2 to 4. The plaintiff asserts that in her reply to the said probate petition, she had specifically alleged that her father – late Shri Ram Singh Srivastava had died intestate and no Will was executed by him, and the Will set up by the defendant No.1 was a forged and fabricated document. The defendant No.2 also filed a reply propounding another Will dated 28.10.1987 alleged to have been executed by late Shri Ram Singh Srivastava. The parties adduced their respective evidence and by its order and judgment dated 05.02.2007, this Court dismissed the probate petition holding inter alia that the defendants No.1 and 2 had failed to prove the execution of the Wills dated 28.08.1977 and 28.10.1987 respectively. At the time of the filing of the present suit, none of the parties had gone in appeal against the aforesaid judgment and accordingly, it was asserted by the plaintiff that the said judgment has become final for all intents and purposes.

5. The plaintiff claims that all the surviving legal representatives were entitled to an equal share i.e. one-fifth each, as per the provisions of Section 6 of the Hindu Succession Act, 1956 in the estate of late Shri Ram Singh Srivastava. The plaintiff having learnt from her relatives that the defendant No.1, who was in occupation of the suit property was trying to dispose of the same, approached the defendant No.1, who feigned ignorance. The plaintiff asked for her share in the suit property in the last week of November, 2008 by partition of the suit property to which the defendant No.1 bluntly refused and hence the present suit.

6. The defendant No.1 filed a written statement in which it was categorically denied that the judgment dated 05.02.2007 rendered by this Court has become final. The defendant