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HIGH COURT OF DELHI : NEW DELHI

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RFA (OS) No.2/2005

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Judgment reserved on: 23^rd July, 2008

Judgment pronounced on: 9^th January, 2009

Shri Maha Singh

...Appellant

Through : Mr. Sandeep Sethi, Senior Advocate

and Mr. Mohinder Rana for the

appellant

Versus

Shri Anand Singh and another

....Respondents

Through : Mr. Harish Malhotra, Senior

Advocate and Mr. S.N. Gupta for

The respondents

Coram:

HON'BLE MR. JUSTICE A.K. SIKRI

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may

be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported

in the Digest?

Yes

MANMOHAN SINGH, J.

1. This appeal is directed against the judgment dated 6^th

December, 2004 passed by the learned Single Judge of this Court whereby

the appellant/plaintiff’s suit was dismissed as being time barred.

2. The property in question is 30, Central Market, Community

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Center, Ashok Vihar, Delhi owned exclusively by the respondent No.1, who

is the younger brother of the appellant/plaintiff.

3. Briefly the facts of the case are that the appellant and

respondent are real brothers being son of Late Sh. Prithi Singh. The suit for

partition and rendition of account in respect of the above mentioned

property was filed by the appellant Maha Singh being CS (OS) No.982/1986

in the second week of May, 1986.

4.

Case of the Appellant

a)

Sh. Jamuna Dass was the grandfather of the appellant and

respondent, who died on 01.09.1904, leaving behind two sons namely Bhim

Singh and Prithi Singh. He was the owner of 400 Bighas of land in Village

Iradat Nagar Urf Naya Baas, Delhi. After his death the land came to the

share of two sons; 50% each i.e. 200 Bighas each.

b)

Sh. Prithi Singh, father of the appellant and the respondent died

in the year 1935 leaving behind two sons namely Maha Singh-appellant and

Anand Singh Mann-respondent.

c)

The respondent was working with Air Force and used to be

posted outside Delhi and various other places. It was the appellant who had

been looking after the said joint ancestral land and the income accruing

there from was received as joint Hindu family income/funds. The appellant

was the elder brother, he was acting as karta of the joint Hindu family. The

land revenue tax etc. on the said joint Hindu family agricultural land was

paid by the appellant in the joint names. The tractor for ploughing the

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lands, installation of a tube well, pumping set etc. were taken by the

appellant in the joint names.

d)

On consolidation of the agricultural holdings in the village, the

said lands could not be entered in the revenue records as joint Hindu

Family lands in view of the provisions of Delhi Land Reforms Act, 1954,

therefore, the said 200 bighas of land were, mutated in the separate names

of the appellant and the respondent. Two plots were purchased in Hari

Nagar in the year 1958-59 and a residential house was constructed on one

of the said plots from the joint family funds or income. In the year 1969,

the plot in dispute bearing no. 30, Ashok Vihar, Delhi was also purchased

from the joint family income which accrued out of the aforesaid ancestral

lands. In 1973, a building was constructed on the said plot from the sale

proceeds of one of the two plots in Hari Nagar. Some loan was also taken

from the Bank of Baroda for the construction of the said house.

e)

It was for the first time in 1978-79, the respondent raised the

issue of partitioning the aforesaid lands and the other properties of the

HUF including the suit property. However, no partition was effected since

the respondent was employed with the Air Force.

f)

It was only in 1985 when the respondent retired from Air Force

that the appellant asked the resp