Plaintiff's claim for partition based on family settlement not maintainable due to non-disclosure in earlier suits and previous dismissal of similar suit.

Prathiba M. Singh, J.

1. This appeal impugns order dated 21st February, 2017 passed by the Learned Additional District Judge dismissing the suit of the Plaintiff under Order VII Rule 11 read with Order II Rule 2 of the Code of Civil Procedure, 1908 (hereinafter, ‘CPC’).

The brief facts are :

2. Mr. Anand Bhardwaj and Mr. Nitya Nand Sharma were brothers. Mrs. Veena Bhardwaj, wife of Mr. Anand Bhardwaj and Mr. Nitya Nand Sharma jointly purchased property bearing No. F-4/100, Subhash Vihar, Delhi-110053 measuring 200 Sq Yards. Mr. Nitya Nand Sharma is no more. His family is in possession of his share of the property. As per the plaint, the following are the portions occupied by the two families:

“4. That the plaintiff along with her husband and Late Sh. Nitya Nand Sharma, husband of the defendant raised construction on the plot in question measuring 200 Square yards and the plaintiff raised the construction in rear portion measuring about 94 Sq Yards. That about 30 Sq. Yards land in front portion remained open for constructing shops as and when required. And Sh. Nitya Nand Sharma was given the remaining part in the front portion. The plaintiff was given the back portion with an understanding that she be entitled for a shop in the front side and that is why she has been given less share and back portion. The site plan relied upon by the plaintiff and the Defendant No. 1 in the earlier suit is Annexure-"P3" & "P4" respectively.”

3. Thereafter, relying upon a family settlement dated 9th July, 1995, the plaintiff filed the suit for partition praying for the following relief’s :

“(a) Pass an order restraining the defendants to create any third party interest in the suit properties.

(b) Pass a preliminary decree of partition in respect of the suit property (30 Square Yards) open portion of property bearing number F-4/100, Subhash Vihar, Delhi-110053 and in the alternative if the family settlement dated 09/07/1995 is not stands proven in the eyes of law, the partition of the entire property bearing number F-4/100, Subhash Vihar, Delhi-110053 measuring 200 Sq. Yards thereby holding that the plaintiff is entitled to 1/2 share therein;

(c) Appoint a local commissioner to ascertain the mode of partition of the suit properties;

(d) Pass a final decree of partition thereby separating the 1/2 share of the plaintiff in the suit properties by metes and bounds and to put the plaintiff in such partitioned 1/2 portion;

(e) Award cost of the proceedings;……”

4. Thus, the stand of the Plaintiff is that all parties ought to be made to abide by the family settlement and if not, both families ought to be declared as owners of 1/2 share of the suit property. An application under Order VII Rule 11 CPC and Order II Rule 2 CPC came to be filed in the suit. The contentions in the applications were that two earlier suits, one for declaration and permanent injunction and the second one for a simple declaration, had been dismissed and accordingly, the third suit would not lie.

5. The Trial Court dismissed the present suit, both under Order VII Rule 11 and under Order II Rule 2 of the CPC. The said order is assailed in this appeal. Arguments were heard on behalf of the parties.

6. It is not in dispute that two earlier suits were filed by the Plaintiff. Suit No.151/2013 was a suit for declaration which was withdrawn by the Plaintiff. However, liberty was granted to file a fresh suit. The said order dated 1st July, 2014 reads as under:

“At joint request the matter is taken up since both the counsel for the parties are present.

It is stated by Ld. Counsel for plaintiff that plaintiff wants to withdraw the present matter. He has been instructed to withdraw the present matter on behalf of plaintiff. Statement of Ld. Counsel for plaintiff at bar recorded separately. In view of statement of Ld. Counsel for plaintiff, present matter is dismissed as withdrawn with libert