JUDGEMENT

JYOTI SINGH, J.

1. By way of the present appeal, the Appellant challenges the judgment dated 16.11.2019, passed by the Trial Court in CS(OS) 2438/2016. By the impugned judgment, the Trial Court has allowed the application preferred by Defendant No. 1 under Order VII Rule 11 read with Section 151 CPC. The Appellant herein was the Plaintiff in the suit before the Trial Court and Defendant No. 1 is the Respondent herein and parties are hereinafter referred as per their litigating status before the Trial Court.

2. Plaintiff filed a suit for partition, possession and permanent injunction against the Defendants claiming 1/3rd share in the Ground floor of property bearing Plot No. 93, National Co-operative Housing Building Society, Delhi (hereinafter referred to as “the suit property”). Defendant No.1 is in actual physical possession of the ground floor of the property in question claiming to have purchased the same from Defendant No.2, who was proceeded ex parte on 29.10.2014.

3. As per the facts set out in the plaint, one Sh. Sujan Singh S/o Sh. Shyam Singh, who was the original allottee of Plot No.93, as referred above, by virtue of registered perpetual sub-lease deed dated 15.12.1981, sold out the plot to three brothers namely, Sh. Vipin Kumar Shukla, Sh. Vijay Kumar Shukla and Sh. Anil Kumar Shukla. After raising construction on the plot, the three brothers occupied different floors of the property and in accordance with the mutual understanding, Sh. Vipin Kumar Shukla occupied the ground floor, Sh. Vijay Kumar Shukla occupied the first floor and Sh. Anil Kumar Shukla occupied the second floor and terrace.

4. After the death of Sh. Vipin Kumar Shukla on 25.09.1999 and his wife on 02.11.2005, the ground floor of the property was inherited by their son Sh. Vishal Kumar Shukla, daughter Ms. Aradhika Sharma and Smt. Shakuntala Devi, mother of Sh. Vipin Kumar Shukla, in equal shares.

5. Apprehending that her brother Sh. Vishal Kumar Shukla may dispose of the entire ground floor, ignoring her rights, Ms. Aradhika Sharma filed a suit for permanent injunction in the Trial Court against her brother Sh. Vishal Kumar Shukla and her paternal uncles, Sh. Vijay Kumar Shukla and Sh. Anil Kumar Shukla, seeking to restrain them from selling, alienating, transferring or parting with possession of 1/3rd share of the ground floor in the property. Only Sh. Anil Kumar Shukla, who is the husband of the present Plaintiff, appeared in the said case while the others were proceeded ex parte on 02.04.2008. The Trial Court granted interim injunction in favour of Ms. Aradhika Sharma, however, despite the said order, Sh. Vishal Kumar Shukla obtained a relinquishment deed in his favour from his grand-mother Smt. Shakuntala Devi and sold the entire ground floor to Sh. D.P. Joshi, Defendant No.2 therein, who in turn sold the same to Sh.

Madan Lal Arora, Defendant No.1 therein and Respondent herein.

6. As per the case of the Plaintiff, Ms. Aradhika Sharma being one of the legal heirs of Sh. Vipin Kumar Shukla to the extent of 1/3rd undivided share in the ground floor of the property, sold her share in favour of the Plaintiff through an Assignment Deed and GPA dated 28.03.2014, for a sale consideration of Rs.15 lakhs. On the basis of the Assignment Deed, Plaintiff, who is the wife of Sh. Anil Kumar Shukla, filed the present suit seeking partition of the ground floor of the property to the extent of 1/3rd share as well as possession and permanent injunction.

7. On being served with the summons, Defendant No. 2 chose not to appear and was proceeded ex parte on 29.10.2014, while Defendant No. 1 along with the written statement, preferred an application under Order VII Rule 11 CPC, seeking rejection of the plaint. The grounds urged in the application were manifold, including that the suit was barred by doctrine of constructive res-judicata. The plea was predicated on a prior suit instituted by the husband of the Plaintiff, Sh. Anil Kumar Shukla for partition, being C