The main legal point established was that the present suit for partition was not maintainable as long as the previously instituted suit by the plaintiff for the same reliefs was pending consideration.

JUDGMENT :

Rajiv Sahai Endlaw, J.

The plaintiff has instituted this suit for partition of two immovable properties i.e. (1) property no. D-23, Main Road Brahampuri, Chauhan Banger, Delhi 110053 admeasuring 334 sq. yrds. and (2) property no. C98/34, Khasra No. 189, Gali No.1, Main Road Brahampuri, Chauhan Banger, Delhi - 110053 measuring 180 sq. yrds, claiming that the said two properties belonged to the father and mother of the plaintiff and the five defendants.

2. The suit came up first before this Court on 3rd April, 2019 when summons thereof were ordered to be issued and the plaintiff as well as the defendants were restrained from alienating, encumbering or parting with possession of the two properties and from demolishing, constructing or carrying out works of any nature whatsoever over the said properties. The said ex parte order was made absolute after the appearance of the defendants, on 21st August, 2019.

3. The plaintiff in the present suit seeks "half the share of brothers" in the father's property and "equal shares to brothers" in the mother's property.

4. The defendants no. 1 and 6 filed a written statement inter alia pleading that the present suit is not maintainable because an earlier suit filed by the plaintiff, for partition of both the properties of which partition is claimed in the present suit, claiming 1/7th share in each of the two properties, is pending consideration before the Court of Shri Brijesh Kumar Garg, Additional District Judge, District North-East, Karkardooma Courts, Delhi.

5. The defendants no. 2 to 5 also in their written statement took the same plea.

6. The suit came up for framing of issues on 21st August, 2019, when though the counsel for the defendants no. 1 and 6 contended that the suit was barred by Section 10 of the CPC, but finding that none of the defendants had placed before this Court the pleadings in the earlier suit, it was held that without the pleadings in the earlier suit, the said aspect could not be adjudicated and on the pleadings of the parties, the following issues were framed in the suit:

(I) Whether late Sh. Abdul Ali, father of the plaintiff and the defendants, was the owner of built up property bearing No. D-23, Main Road Brahampuri, Chauhan Banger, Delhi admeasuring 334 sq. yds.? OPP

(II) Whether defendant no.1 Munavvar Ali is the owner in his own right of 74 sq. yds. in property no. D-23, Gali No.16, Chauhan Banger, Brahampuri, Main Road, Delhi and the said property is not open to partition? OPD-1

(III) Whether the previously instituted suit for partition of the properties for partition of which the present suit has been filed, is pending and if so, the effect thereof? OPD-1 to 6

(IV) Whether the plaintiff, for reasons pleaded, has no share in the estate of her father? OPD-1 to 6

(V) Whether the father of the parties has gifted any of the properties owned by him to the defendant no.1 and if so, to what effect? OPD-1

(VI) What are the shares, if any of the respective parties in property no. D-23, Gali No.16, Chauhan Banger, Brahampuri, Main Road, Delhi, whether admeasuring 334 sq. yds. or admeasuring 260 sq. yds. and in property No.C-98/34, Khasra No.189, Gali no.1, Main Road, Brahampuri, Chauhan Banger, Delhi admeasuring 100 sq. yds.? OPPr

(VII) Relief.

and the parties relegated to evidence.

7. The defendant No.1 has now filed IA.No.15174/2019 under Section 151 of the CPC seeking stay of this suit and has alongwith the application filed certified copies of the pleadings and orders in the earlier suit and which disclose the plaintiff herein alongwith the defendants no. 2 to 5 herein to have filed the suit pending in the District Court, for partition of both the properties of which partition is sought in the present suit, claiming 1/7th share therein.

8. The counsel for the plaintiff appears on advance notice.

9. None appears for the defendants no. 2 to 5.

10. For the reason of the facts stated here in below, need to call for a reply from the plaintiff to the application does not arise.