The main legal point established in the judgment is that the suit for partition was not barred by limitation, and the court decided to frame an issue regarding the applicability of Order II Rule 2 CPC at the final hearing.

Prathiba M. Singh, J.

I.A. 10571/2014 (u/O VII Rule 11 CPC)

1. The present suit for partition was instituted on 17th February, 2014 seeking partition of various properties as mentioned in the prayer. Learned counsel for Defendant No.1 has filed an application under Order VII Rule 11 CPC being I.A.10571/2014 on the ground that the suit is not maintainable as the same is barred by limitation.

2. The submission of learned counsel for the Defendant is that Defendant No.1 had preferred Civil Suit 95/2005 titled Jai Pal Singh & Anr. v. Nand Ram Singh and Ors., in which the Plaintiff, Shri Mahipal Singh, was Defendant No.2. The said suit was filed by Shri Jai Pal Singh on 5th July, 2005 seeking partition of one property being C-98, Khasra No.174, Main Road, Braham Puri, Chauhan Bangar, Matke Wali Gali, Delhi-110053. In the said suit, Shri Mahipal Singh had filed his written statement pleading that there are five other properties which had to be partitioned between the parties. In the replication, Shri Jai Pal Singh had taken a stand that those properties were already partitioned between the parties. The said suit came to be concluded by means of a settlement between the parties wherein the Court, after recording the settlement, had disposed of the suit.

3. He further submits that another suit being Suit No.28/2011 was also filed by Shri Mahipal Singh seeking partition. This suit was instituted in 2010. However, vide order dated 9th July, 2012, the said suit was dismissed. He, thus, submits that initially, Shri Jai Pal Singh had already submitted in the replication in the first suit that the properties were already partitioned and hence the cause of action for any suit for partition arose at that time in 2005. He further submits that even when the compromise was entered into in the first suit, no objection was ever raised in respect of any outstanding disputes between the parties. He also relies on an application under Order XXIII Rule 3 CPC filed in the said suit. He thus submits that the cause of action arose in 2005, the second suit was filed in 2010. Thus, the present suit filed in 2014 is barred by limitation.

4. On the other hand, learned counsel for the Plaintiff submits that in the first suit after Shri Jai Pal Singh took the stand that the properties stood partitioned, settlement negotiations were going on. Though the application under Order XXIII Rule 3 came to be filed, in the mediation report, it is made clear that the settlement in the mediation proceedings related only to the property which were the subject matter of the said suit and no other property. She further submits that the Plaintiff, Shri Mahipal Singh, had instituted the second suit within the limitation period after the recordal of settlement in the first suit i.e. on 29th February, 2008. She further submits that after withdrawing the second suit in 2010, the present suit came to be filed in 2014 as the Plaintiff had suffered a paralytic attack. On these grounds, she submits that the suit is not barred by limitation.

5. This Court has perused the pleadings in the first suit. In the written statement, therein, the Plaintiff in this suit, Shri Mahipal Singh, clearly avers as under : -

“4. That the contents of para no.4 of the plaint are absolutely false, wrong and hence, denied. It is denied that the plaintiffs have their 1/5 share each in the property in question and portion specially in red colour in the in the site plan in possession of the plaintiffs but property under partition was not properly portioned with meets and bounds and as per proper measurement of area. On the contrary plaintiff have filed in correct site plan only with the sole intention to take forcibly possession upon the suit property. It is further submitted that as matter of fact no proper court has been filed by the plaintiffs. It is further submitted that there are four properties without partition amongst the legal heirs of Late Sh. Heera Lai and Sh. Ram Bai, whose particulars are as