IMPORTANT POINT
Question of suit being barred by law is a mixed question of fact and law.

JUDGMENT

H.L.GOKHALE,J.

(1) This appeal seeks to challenge the judgment and order dated 27.1.2009 rendered by a Division Bench of the High Court of Delhi in FAO (OS) No.290 of 2008 whereby the Division Bench has set aside in part the decision rendered by a learned Single Judge who had dismissed the application moved by the respondent No.1 (defendant No.1) under Order VII Rule 11 of the Code of Civil Procedure,1908 by his judgment and order dated 7th April, 2008.

(2) Heard Mr. Shyam Diwan learned senior counsel appearing on behalf of the appellants and Mr. C.A. Sundaram learned senior counsel appearing on behalf of the respondents.

(3) The brief facts leading to this appeal are that one Ajit Singh filed a Suit bearing No.2167 of 1993, on the Original Side of Delhi High Court for partition of property against his sister Ms. Adarsh Kaur Gill and some others. He filed the suit in his capacity as the Administrator of the Will of his deceased sister Smt. Abnash Kaur. The prayers in the suit were as follows:

(a) pass a preliminary decree of partition of the property bearing No.3, South end Road, New Delhi, more particularly shown on the plan, and thereafter, pass a final decree partitioning the said property by metes and bounds and put each of the parties to the suit in actual physical possession of the portion of the property allotted to him/her. If the partition of the property by metes and bounds is not feasible, then the property may ordered to be sold by public auction through Court and proceeds thereof be divided between the parties to the suit in accordance with their share and entitlement;

(b) pass a preliminary decree for partition of the movable assets belonging to the estate of Smt. Abnash Kaur, as mentioned in the Schedule to the plaint and, thereafter, pass a final decree and give to each of the party to the suit his/her share of the said property. In case it is not feasible to distribute the movable assets belonging to the estate of Smt. Abnash Kaur in the hands of defendants Nos.1 & 2 to each of the beneficiaries, as per the share and entitlement, then the said movable assets may be ordered to be sold by public auction through this Hon'ble Court and the proceeds thereto may be divided amongst the parties, as per their share and entitlement;

(c) pass a decree for rendition of accounts and enquiry into the same with respect to the rental income of the property received by defendant No.1 from the tenant of property bearing No.3, South End Road, New Delhi, w.e.f. 1.1.1980 to 30.11.1990;

(d) pass a decree for rendition of accounts and enquiry into the same with respect to the profits made by defendant Nos.1 and 2 from the business which they have been carrying on by investing the funds from the estate of Smt. Abnash Kaur;

(e) Pass a decree for declaration that there has been no lease deed executed by Smt. Abnash Kaur in favour of Defendant No.1 and that defendant No.1 is not a lessee in the property, 3, South End Road, New Delhi, and she is not entitled to give the said property to any person on sub-lease basis;

(f) pass a decree of declaration to the effect that defendant No.1 is not a subrogatee of the mortgage deeds executed by late Smt. Abnash Kaur with respect to the property in favour of Smt. Sushila Daphtary and her son Mr. Anil Daphtary said mortgage deeds have been redeemed out of the estate left by Smt. Abnash Kaur;

(g) Pass a decree of declaration to the effect that defendants Nos.1 & 2 have dis-entitled themselves from getting any share in the estate left by Smt. Abnash Kaur and that the plaintiff and defendants Nos.3, 4 & 5 are the only beneficiaries under the Will of Smt. Abnash Kaur and are entitled to get the entire estate left by Smt. Abnash Kaur divided and partitioned in four equal shares;

(h) Pass a decree for permanent injunction against Defendant No./1 restraining her permanently from transferring, alienating, letting out or parting with the possession of the property No.3, South End Road, New Delhi, or