The court upheld the plaintiff's right to proceed with the suit, determining that the plaint discloses a cause of action necessitating a trial, and ruled against the rejection of the plaint under CPC Order VII Rule 11.

JUDGMENT

Amit Bansal, J.

I.A. 1210/2021 (of the defendant no.1 u/O-VII R-11 of CPC), I.A. 2081/2021 (of the defendant no.3 u/O-VII R-11 of CPC)

1. By way of this judgment, I shall decide applications filed on behalf of the defendants no.1 and 3 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint.

Proceedings in the suit

2. The present suit was filed on behalf of the plaintiff seeking reliefs of partition, possession and permanent injunction in respect of the property bearing No. B-127, Chittaranjan Park, New Delhi-110019. (hereinafter referred to as `suit property').

3. Summons in the suit were issued on 25th November, 2020. Written statements have been filed on behalf of the defendants no.1, 2, 3 and 4. Replications thereto have been filed on behalf of the plaintiff.

4. Subsequently, the present applications were filed on behalf of the defendants no.1 and 3. Notice in I.A. 1210/2021 and I.A. 2081/2021 were issued on 27th January, 2021 and 11th February, 2021 respectively. Replies have been filed on behalf of the plaintiff.

5. The statement of the plaintiff in respect of the earlier suit being CS(OS)77/2016 filed on behalf of the plaintiff was recorded on oath under the provisions of Order X of the CPC on 18th August, 2022.

Pleadings in the plaint

6. The pleadings in the plaint insofar as are relevant for deciding the present application are set out below:

6.1. The suit property belonged to Late Sh. Moni, who expired on 24th February, 2006, leaving behind his wife, Smt. Kamala Dey and 5 children. The plaintiff and the defendants no.1 and 3 are 3 surviving children of Late Sh. Moni Dey. Sh. Debdas Dey, another son of the Sh. Moni Dey expired on 24th June, 2011 and is survived by his daughter, Debashree Biswas, the defendant no.2 herein. Another daughter of Late Sh. Moni Dey, Smt. Khela Kanwar, expired on 9th September, 2019 and is survived by her son, the defendant no.4 herein.

6.2. After the death of Sh. Moni Dey, the defendant no.1 propounded an unregistered Will dated 11th March, 2004 executed by Sh. Moni Dey. However, it was decided by the parties mutually that the said Will would not have any bearing on the rights of the legal heirs of Sh. Moni Dey and the suit property would devolve upon Smt. Kamala Dey exclusively.

6.3. Sh. Kamala Dey expired intestate on 20th November, 2018. At the time of her death, Smt. Kamala Dey was the absolute owner of the suit property.

6.4. After the death of Smt. Kamala Dey, it was orally agreed between the parties that the legal heirs of Smt. Kamala Dey will use the suit property for residential purposes and make endeavours to partition the suit property by metes and bounds. It was also agreed that none of the legal heirs will deal with the suit property in any other manner. Thereafter, the plaintiff and the defendants have been residing in the suit property.

7. Accordingly, the present suit has been filed by the plaintiff seeking following reliefs:

"(a) pass a Preliminary decree of partition in favour of the Plaintiff and against the Defendants towards one fifth (1/5) share of the property bearing No. No.B-127, Chittaranjan Park, New Delhi-110019, admeasuring 196 square yards (164 square meter approx).

(b) pass a decree of partition in favour of the Plaintiff and against the Defendants towards one fifth (1/5) share of the property bearing No. No.B-127, Chittaranjan Park, New Delhi-110019, admeasuring 196 square yards (164 square meter approx).