Vibhu Bakhru, J.

1. The Appellant has preferred the present appeal impugning the order dated 09.05.2013 passed by a learned Single Judge of this court in CS(OS) No.1353/2012 (hereinafter referred to as the ‘impugned order’). By the impugned order, the learned Single Judge has dismissed the application being I.A. No. 12126/2012 filed by the appellant/ defendant No. 1 under Order VII Rule 11 of the Code of Civil Procedure, praying for rejection of the plaint.

2. The controversy involved in the present case is whether the plaint filed by respondent no.1 (the plaintiff in the suit CS(OS) No.1353/2012), inter alia, praying for a decree of declaration that the plaintiff is entitled to 1/5th share in the entire unconstructed roof of the single storied property bearing No.61/62, Ramjas Road, Karol Bagh, New Delhi (hereinafter referred to as the ‘suit property’) and a decree of partition of the suit property, is liable to be rejected as not disclosing any cause of action in favour of the plaintiff.

3. The facts relevant for examining the rival contentions are briefly stated as under.

4. Mohan Lal Aggarwal was the Karta and manager of the Joint Hindu Family (hereinafter referred to as the ‘JHF’). The JHF had immovable properties at Delhi and Ferozpur (Punjab). On 25.01.1958, there was an oral arrangement between the members of the JHF with regard to the division of the immovable properties of the JHF. A declaratory suit bearing Civil Suit No.81/1958 was filed in February, 1958 to give effect to the said oral arrangement.

5. During the pendency of the said suit, the parties by their common consent applied to the court to refer the matter to arbitration. Thereafter, a sole Arbitrator was appointed by the Court on 27.02.1958. On 21.03.1958, the Sole Arbitrator made an award in terms of the said oral arrangement. The said award was then made a rule of the court on 30.03.1958 by a Sub Judge, 1st Class, Delhi in proceedings numbered as Civil Suit No.81/1958.

6. As per the award dated 21.03.1958, all the immovable properties of the JHF were divided amongst the members of the JHF on as is where is basis whether under self occupation or under the occupation of tenants. The plaintiff was a party to the arbitral proceedings as well as to the Civil Suit no.81/1958

7. The plaintiff has now claimed in the plaint that only the superstructures of the built up property including the suit property were divided amongst family members and the rights and title of the land beneath the buildings and the roof rights were not divided. This claim is contested by the defendants nos.1 to 5 and it is contended that there was a complete partition of the JHF during the life time of Mohan Lal Aggarwal. The immovable properties which were partitioned were also mutated in the record of the MCD/DDA in the respective names of the members of the JHF, in whose share the said properties came to be vested. The said partition of JHF was also accepted by the concerned Income Tax Authority and the status of the JHF was disrupted by an order dated 02.01.1961 passed in relation to the Income Tax Act, 1922.

8. In 2010, the appellant filed a civil suit bearing CS(OS) No.765/2010 for the partition of the property left by Kailash Wati, mother of the appellant and the same is pending disposal before this Court.

9. In 2012, the respondent No. 1 filed the subject civil suit being CS(OS) No.1353/2012 for partition, declaration, permanent and mandatory injunction in respect of the suit property. As per the arbitration award dated 21.03.1958, the suit property fell to the share of the appellant and Late Brijender Mohan Aggarwal (now represented by his legal heirs, respondent No.2 to 5 who were arrayed as defendants nos. 2 to 5 in the suit) who were both minors at the material time.

10. The appellant filed a written statement and also filed an application under Order VII Rule 11 of CPC being I.A. No. 12126/2012 for the rejection of the suit on the ground the award dated 21.0