Jayant Nath, J.

1. The present appeal is filed challenging the order dated May 24,2013 passed by the learned Single Judge whereby the application filed by defendant No.1/respondent No.1 under Order VII Rule 11 CPC, being IA No.13394/2011, was allowed and the plaint was rejected.

2. The appellants filed the suit seeking a decree for partition of properties B-11, Krishna Niwas, West End Colony, New Delhi and 245-A, Puran Nagar, Jammu (Tawi), Jammu and Kashmir and other connected reliefs.

3. It is averred in the plaint that the parties to the present suit are legal heirs of late Lt.Col.Dina Nath and late Smt.Krishna Thakur. Appellants are legal representatives of their deceased son late Major Puran Chander i.e. the son and widow. Respondents No.1 to 3 are the sons while respondents No.4 to 6 are the daughters of late Lt. Col.Dina Nath and Smt. Krishna Thakur. It is urged that late Lt.Col.Dina Nath from his own funds, funds received from the LIC Policy upon the demise of the father of appellant No.1 and funds received from sale of ancestral properties situated in District Poonch, Jammu and Kashmir constructed the aforesaid two immovable properties. The father of appellant No.1 and husband of appellant No.2 expired in 1965 in the Indo Pak conflict. Based on the above facts, it is averred that each of the respondent and the appellants have 1/7th share in the two properties and hence the suit for partition.

4. Respondent No.1 filed the written statement in the suit stating that there is gross suppression of material facts by the appellants in the plaint. It is stated that on April 21, 1975 Respondent No.3 herein filed a suit for partition titled Suresh Chander versus Lt. Col. Dina Nath and Others before Principal & District Judge, Jammu. Appellant No.1 through appellant No.2, as his guardian was arrayed as a party to the suit. By consent of the parties the suit was decreed. A Local Commissioner was appointed to recommend partition. The Jammu property as per report of the Local Commissioner was divided into three parts, one part falling to the share of respondent No.2, one to the share of Respondent No.3 and one to the share of appellant No.1. The reportfurther stated that the Delhi property would devolve entirely upon respondent No.1. A final decree in terms of the report of the Local Commissioner was passed on March 30, 1976 which has become final and is binding on the parties. The sisters of respondents No. 1 to 3 i.e. respondents No.4 to 6 did not claim any share in the two properties. It is urged that appellant No.1 has been enjoying the sole exclusive ownership over his separate share of property in Jammu. He has even been collecting rent by letting out different portions of the suit property in Jammu which had fallen to his share in the partition decree. All these facts it is averred have been mischievously and malafidely suppressed in the plaint.

5. Regarding the Delhi property it is further urged that the said property measuring 800 sq.yards was purchased in 1961 by Smt.Krishna Thakur. In 1966 Smt.Krishna Thakur wrote to DDA requesting for transfer of her rights in the said property in favour of respondent No.1. On August 31, 1970 DDA accepted the request of Smt.Krishna Thakur. Accordingly, on December 11, 1970, a perpetual sub-lease was made and executed in favour of Respondent No.1 which was duly registered in accordance with law. It is urged that by virtue of execution and registration of the sublease dated December 11, 1970, respondent No.1 become the sole, absolute and exclusive owner of the said property in Delhi. He has been enjoying undisputed ownership rights in the property since 1971. He has let out various portions of the property in accordance with law and has been collecting rents continuously. He has also been paying all relevant statutory government dues and taxes in relation to the said property. The decree of the Jammu Court continued this position.

6. On the basis of the above averments the said