MAHENDER KUMAR KHURANA Vs. RAJINDER KUMAR KHURANA

JUDGEMENT

(1.) By this application the defendant No.1 seeks rejection of the plaint, inter alia, on the ground that the suit is barred by limitation and for insufficiency in filing Court fees.

(2.) Learned counsel for the applicant/ defendant No.1 contends that the present suit has been instituted by the plaintiff seeking partition of the suit properties and the consequential relief of possession in favour of the plaintiff of his 1/6th share in the suit properties and the profits arising therefrom.

(3.) Admittedly, as per the documents filed by the plaintiff the plaintiff had filed an earlier suit against the defendants being CS(OS) No. 94/96 seeking a decree of declaration of joint ownership with defendant No.1, permanent injunction in favour of the plaintiff being the legal heirs of late Shri Shyam Sunder and against the defendant No.1, his representatives etc. from selling, alienating, transferring property No. C-315 Rewari Line Industrial Area (also known as Mayapuri Industrial Area) Phase-II, New Delhi and shop/ property No. 2961 Bahadur garh Road, Sadar Bazar or parting with the possession and also restraining the defendant No.1 from raising any construction or addition therein. The suit was based on an alleged family arrangement dated 23rd March, 1982 between the families of the sons of late Lala Isher Dass. In the said suit, written statement was filed by the defendant No.1 who is also the defendant No.1 herein stating that there was no family settlement dated 23rd March, 1982 as alleged. It was further mentioned that Shri Shyam Sunder the father of plaintiff and defendant No.1 was owner of 50% share in M/s Shyam Sunder Nand Kumar and after his death his said half share devolved on the plaintiff, defendant No.1 and his wife Smt. Satyawati in equal shares. Smt. Satyawati continued in business. As the plaintiff was well settled in Canada and there was no likelihood of his coming back, the properties were partitioned and the plaintiff took his share in the form of cash to the extent of Rs. 2 lakhs from defendant No.1 in presence of defendants No.2&3. Further the property No. 2916 Sadar Bazar was only a rented property possession of which was handed over to the landlord in the year 1985 and property No. C-315 New Mayapuri Industrial Area, Phase-II is owned by defendant No.1 along with his sons as owner and plaintiff has no entitlement to the same. Admittedly, the said suit of the plaintiff was dismissed as not maintainable. Thus, the factum of the plaintiff not being entitled to any share in the suit property as alleged was known to the plaintiff admittedly by way of written statement of the defendant No.1 which was filed prior to April, 1997. The present suit having been instituted in January, 2011 is clearly barred by limitation. Once the limitation starts running, the plaintiff cannot seek extension of period on the pretext that some mediation was going on and he was assured that he would get his due share. Further mediation between the parties is no acknowledgment of the liability. It is further stated that the plaintiff is admittedly not in actual possession of the property, thus the Court fees paid is deficient and the suit is liable to be rejected on this count as well. The contention of the plaintiff that the dissolution of the partnership vide dissolution deed dated 5th October, 1992 is a fabricated document is wholly incorrect as under Section 42 of the Partnership Act on death of a partner, the partnership stands dissolved. Thus, the present suit be rejected.