Possession of one co-owner is in law possession of all, unless ouster or exclusion is proved. Possession can be referred to a lawful title and will not be considered adverse.

1. The plaintiff has instituted this suit for partition of property No.319, Deepali, Pitampura, Delhi claiming (i) that the same was owned by his father late Sh. Nawal Kishore Govila who died intestate on 9th May, 2001 leaving the plaintiff and the defendants No.1 to 3 as his children and the mother of the plaintiff and defendants No.1 to 3 as his widow, and another daughter namely the predecessor of defendants No.4&5, as his only legal heirs and thus the plaintiff on the demise of his father acquired 1/6th undivided share in the said property; (ii) that the mother of the plaintiff and the predecessor of the defendants No.4&5 have also since died intestate; (iii) that the plaintiff, defendant No.1, defendant No.2 and defendant No.3 now have 1/5th share each and the defendants No.4&5 together have the remaining 1/5th share in the property.

2. The suit was entertained and vide ex-parte ad-interim order dated 5th August, 2016, while issuing summons, the parties including the plaintiff were restrained from alienating, encumbering or parting with possession of the property.

3. The defendants No.1, 4 & 5 namely Mr. Harish Chand Govil, Mr. Rajneesh Gupta and Ms. Malvika Gupta in their joint written statement have admitted the facts aforesaid set out in the plaint and have pleaded that they have no objection to the property being partitioned and have additionally sought a direction to the defendant No.2 to render account of the rent realized by him from the tenant on the second floor of the property.

4. Similarly, defendant No.3 namely Smt. Jaya Gupta also in her written statement has admitted the contents aforesaid of the plaint and stated that she has no objection to the property being partitioned and has also additionally sought the relief against the defendant No.2 for rendition of accounts.

5. The defendant No.2, in his written statement, has contested the suit, pleading (a) that the plaintiff did not claim any right for 15 years since the death of the father and the suit is thus beyond the prescribed period of limitation; (b) that the plaintiff has not filed original documents; (c) that the plaintiff in para 1 of the plaint has admitted that he is not the legal heir of his father; (d) that the suit has not been properly valued for the purposes of court fees and jurisdiction and the plaintiff though not in possession of the property has not paid ad valorem court fees; (e) that the plaintiff has not resided in the property since after his marriage in the year 1975 and has been residing separately; (f) that the father of the plaintiff had disowned the plaintiff from his estate vide his Will made by him in his lifetime; (g) that the said document was not executed during the lifetime of the father due to unavoidable circumstances but has been made by him; (h) that the said Will makes the claim in the suit false; (i) that the second floor of the property was constructed out of the savings of defendant No.2, though in the lifetime of the father only; (j) that the plaintiff or the other defendants have no share in the rent of the second floor of the property. However the defendant No.2, alongwith the written statement did not file any document which in law could be said to be a ‘Will’.

6. The suit came up before this Court on 7th February, 2017 for framing of issues when in view of the aforesaid pleas in the written statement of the defendant No.2, being the only defendant contesting the suit, it was enquired from the counsel for the defendant No.2, as to how the said pleas constitute a material plea within the meaning of Order XIV Rule 1 of the Code of Civil Procedure, 1908 (CPC) to invite the framing of issues.

7. I may in this regard notice that Order XV of CPC empowers the Court to, on the date when the suit is listed for framing of issues, if from a perusal of the pleadings finds that no material question of law or fact arises for adjudication, pass a decree forthwith.

8. Though the counsel for the defendant No.2 on 7th February