The court upheld the dismissal of an application to reject a plaint, affirming that a plaintiff's claims of co-ownership based on financial contributions warrant a trial, and are not barred by limitation or other laws.

JUDGMENT

Mr. Gurbir Singh, J.

Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dated 20.10.2022 (Annexure P-1) passed by learned Civil Judge (Junior Division), Gurugram, whereby application moved by the petitioner-defendant No.1 under Order VII Rule 11 (a) (b) (c) (d) read with section 151 CPC for rejection of the plaint, has been dismissed.

2. The parties herein are being addressed as per their original status in the suit.

2.1 The parties are real brothers. They are sons of Mr. M.L. Fotedar, who expired on 28.09.2017 leaving behind his widow, namely, Rattan Rani Fotedar; three sons, namely, Jitender Fotedar (plaintiff), Arun Fotedar (defendant No.1, petitioner herein), Sanjay Fotedar (defendant No.2); and two daughters, namely, Girija Dhar and Rashmi Shali.

2.2 In brief the facts necessary for the decision of this revision petition are that respondent No.1-plaintiff filed a suit for declaration, cancellation of transfer deed and for permanent injunction, on the ground that in 1999, he purchased the property bearing No.C-2/71-B, measuring approx. 416 square yards, situated at Lord Krishna Enclave Sushant Lok, Phase-1, Gurugram, from his own funds. Plot No.C-2/73, measuring approx. 416 square yards, in the said locality, was purchased in the name of Mrs. Rattan Rani, mother, who later on gifted the same to her younger son Sanjay Fotedar-defendant No.2 and thereafter, plot No.C-2/72, measuring 416 square yards, was also gifted to defendant No.2 by one Mr. M.L. Bajaj. For construction of plot Nos.C-2/72 and C-2/73 (hereinafter referred as, "suit property"), the funds were arranged by the plaintiff and his father. So, the plaintiff became co-owner of the suit property after the construction of basement, ground floor, first floor and second floor. Defendant No.2 started residing at ground floor, whereas first floor and second floor were owned by the plaintiff and he started residing at the first floor. Since the father of the parties desired that his sons should reside jointly in the said property during his lifetime and to fulfill said desire, defendant No.1 was given the right to reside at the second floor of the suit property. A residential flat at Dwarka was acquired in the name of defendant No.1 from the joint funds and huge industrial plot of land at Manesar and commercial property at Qutab Plaza, Phase-1 in the name of wife of defendant No.1. After the death of their father Mr. M.L. Fotedar, the family members kept on deliberating to partition the joint properties and plaintiff kept on asking defendant No.1 to shift to Dwarka and requested defendant No.2 to execute transfer deed in his favour. Defendant No.1 sent a mail to the plaintiff on 01.06.2020 wherein it was disclosed that defendant No.1 had got a transfer deed executed by defendant No.2 in respect of suit property and when defendant No.2 was confronted that he had no right as construction of suit property was carried out by the funds of plaintiff and transfer deed was to be executed in favour of the plaintiff, then defendant No.2 assured to get the said deed cancelled as the same had been obtained fraudulently by defendant No.2. In order to resolve the dispute, a family settlement was proposed and as such, another mail was sent by the husband of Mrs. Rashmi to the plaintiff on 10.06.2020 regarding settlement of suit property. On 31.05.2021, defendant No.1 tried to trespass in the portion in possession of the plaintiff. Plaintiff is being pressurized to vacate the property.

3. Learned senior counsel appearing on behalf of the petitioner-defendant No.1 has argued that the plaintiff has not filed any document to show any pre-existing right in the suit property or even any document to show any money spent on the construction and contributions made by him and even failed to disclose the source from where the alleged funds were arranged for raising construction. Plaintiff has filed suit for declaration to the effect tha