Rajiv Sahai Endlaw, J.

1. Plaintiff has filed this suit, (i) for partition of shops bearing No.4277, 4278, 4279, 4281, 4282, 4283 and Katra property bearing No.4280, Main Bazar, Paharganj, New Delhi; (ii) for injunction restraining defendant No.1 from raising any construction in property No.4280 and from alienating / transferring / parting with possession of the same; and, (iii) for rendition of accounts against the defendant No.1, pleading that the plaintiff and the two defendants are brothers and that as per the Memorandum of Family Settlement dated 16th October, 1987, the plaintiff has half share in shops No.4277, 4278, 4279, 4281, 4282, 4283 and 1/3rd share in property of Katra bearing No.4280, with the remaining one half share in the shops belonging to the defendant No.1 and the remaining 2/3rd share in the house property consisting of Katra bearing No.4280 belonging to the defendants No.1 & 2 equally.

2. The two defendants filed a joint written statement pleading that they had no objection if the properties are divided in terms of Family Settlement dated 16th October, 1987. It was however alleged that the plaintiff had raised unauthorized construction above shops bearing No.4277, 4278, 4279, 4281, 4282, 4283 and Counter Claim No.4/2013 was filed for demolition of the said unauthorized construction.

3. I.A. No.85/2009 was filed by the plaintiff and I.A. No.7300/2009 was filed by the defendants, both under Order XII Rule 6 of Civil Procedure Code (CPC), 1908. A perusal of the order sheet of the suit shows, that the counsel for the plaintiff and the counsel for the two defendants, jointly sought adjournments on 6th November, 2009; on the next date i.e. 9th February, 2010, it was recorded that the parties were negotiating the possibility of settlement; vide order dated 20th July, 2010, the parties were directed to appear in person; on 21st July, 2010 when the parties were present in person, it was recorded that there was possibility of amicable settlement as the parties had agreed that they would sit together and sort out their disputes amicably; on subsequent date i.e. 4th August, 2010, again the parties appeared in person and the order records that the settlement could not take place as both the parties were blaming the other for unauthorized construction; accordingly, this Court directed the Standing Counsel for Municipal Corporation of Delhi (MCD) present in Court to have the properties inspected and to have the unauthorized construction if any found demolished; on the next date of hearing, it was informed that demolition action had been initiated.

4. On 1st December, 2010, applications of the plaintiff as well as the defendants under Order XII Rule 6 were taken up for consideration and finding that as per Memorandum of Family Settlement dated 16th October, 1987, three shops go to the share of the plaintiff and the remaining three shops go to the defendant No.1 and the property No.4280 is to be divided equally amongst the plaintiff, defendant No.1 and defendant No.2 and that there was no dispute with respect to this factual position, a preliminary decree for partition was passed declaring the plaintiff to be entitled to three shops, defendant No.1 to be entitled to the remaining three shops and each of the plaintiff and the two defendants to be having 1/3rd share each in property No.4280. However it was observed, that a decree for partition by metes and bounds could not be passed so long as the unauthorized construction was not removed and for which the defendants had filed a counter claim. Accordingly, issues were framed in the counter claim and the same put to trial.

5. On 18th January, 2011 again, the counsel for the plaintiff and the counsel for the defendants stated that the parties were attempting out of Court settlement and sought adjournment.

6. However, on the next date of hearing i.e. 23rd March, 2011, a new counsel appeared for the defendant No.2 Mr. Bharat Bhusan and stated that as per her instruct