Pradeep Nandrajog, J.

1. Two suits, CS(OS) No. 2491/2009 and CS(OS) 163/2010 were filed seeking partition of property bearing Municipal No. 66, Block B-4, Safdurjung Residential Area, Delhi, rendition of accounts, injunctions and declaration of decree dated 15.1.1976 as null and void. Appellants Aniruddha Dutta, Debashish Dutta and Arijit Dutta are the sons of late Ms. Mukul Dutta who was the daughter of late Ms. Nirod Bala Basu and appellant Debanjan Bishwas is the son of late Enakshmi Bishwas the daughter of late Ms. Mukul Dutta. They were the plaintiffs of CS(OS) No. 2491/2009. Ira Dutta daughter of late Nirod Bala Basu was the plaintiff of the other suit i.e. CS(OS) No. 163/2010. We highlight that the prayers made in both the suits were the same.

2. Late Ms. Nirod Bala Basu was married to late Lalit Kumar Basu. The two were blessed with four sons and four daughters. The names of the four sons are:

(i)

Birender Nath

(ii)

Shailender Nath

(iii)

Bhupender Nath

(iv)

Bhawani Shankar

3. The names of the four daughters are:

(i)

Ms. Mukul Dutta

(ii)

Ms. Manju Shankar

(iii)

Ms. Jaba Mitra

(iv)

Ms. Ira Dutta

4. Birender Nath died and was survived by four sons named:

(i)

Ishan Chander Basu,

((ii)

Pratap Chander Basu,

(iii)

Prosanto Kumar Basu and

(iv)

Shushanto Basu; and a daughter Ms. Ajanta Mitra.

5. Late Ms. Nirod Bala Basu died on 21.02.1971 and it is the claim of her four sons Birender Nath, Shailender Nath, Bhupender Nath and Bhawani Shankar that during her life time their mother executed a will dated 01.02.1971 as per which she bequeathed property bearing Municipal No. 66, Block B-4, Safdurjung Residential Area, New Delhi which consisted of a perpetual lease hold right under DDA in their favour in equal share, to the exclusion of her daughters.

6. In the year 1975 Shailender Nath, Bhupender Nath and Bhawani Shankar filed a suit registered as Suit No. 12/1975 seeking a declaration that the four sons of late Ms. Nirod Bala Basu were the joint owners of property No. 66, Block B-4, Safdurjung Residential Area, New Delhi since their mother had bequeathed the same to her sons as per the will dated 01.02.1971, in which suit they impleaded their brother Birender Nath and their four sisters Mukul Dutta, Manju Sarkar, Jaba Mitra and Ira Dutta as defendants.

7. Summons were issued in the said suit and as per the record of the suit, all five defendants were served. The record of the suit would further reveal that the fourth son impleaded as a defendant i.e. Birender Nath filed a written statement admitting that his mother had executed the will dated 01.02.1971. Manju Sarkar, Jaba Mitra and Ira Dutta filed written statements in which even they admitted that their mother had executed the will dated 01.02.1971. The fourth daughter Mukul Dutta, as per the record of the suit, in spite of being served never appeared and was proceeded against ex-parte.

8. Needless to state, in view of the facts noted in para 6 and 7 above pertaining to Suit No. 12/1975 a decree was passed on 15.01.1976 declaring that the four sons of Ms. Nirod Bala Basu i.e. Shailender Nath, Bhupender Nath, Bhawani Shankar and Birender Nath were the co-owners of the property on the basis of the will dated 01.02.1971 executed by their mother in their favour.

9. On the strength of the judgment and decree dated 15.01.1976 the four sons of late Ms. Nirod Bala Basu filed an application before DDA under whom their mother held perpetual lease hold rights in respect of the land praying that their names be mutated as the perpetual lessees of the plot. DDA accepted their application and mutated their names as the successor-in-interest of their mother.

10. It appears that when late Ms. Nirod Bala Basu died, DDA had yet to execute a perpetual lease deed in her name conveying perpetual lease hold rights in her favour and thus on 03.02.1982 DDA executed a perpetual lease deed in the name of Shailnder Nath, Bhupender Nath, Bhawani Shankar and Birender Nath and as per which the four became the perpetual lessees under DDA. The fo