KANWAR PRATAP SINGH Vs. SURAT SINGH

JUDGEMENT

(1.) This appeal by the plaintiff-appellant is directed against the order dated January 3, 1996, of a learned Single Judge dismissing I.As. No. 6035/ 93 filed under Order XXXIX Rules 1 & 2 and Order XL Rule 1 read with Section 151, CPC and I.A. No. 4580/95 moved under Order XL Rule I and Section 151, Civil Procedure Code in Suit No. 1413/93.

(2.) The suit out of which the present appeal arises was filed inter alia, on the allegations that defendant-respondent No. 1 is the father of the appeallant and defendants-respondents 2-4 and they constituted a Hindu undivided family. HUF owns and possesses ancestral properties mentioned in the schedule annexed to the plaint and the appellant and the respondents have l/5th share each therein. Amongst the ancestral properties is the land comprised in Khasra No. 102/2, measuring 1 bigha at Raj Pur Chhawani, Delhi. It is alleged that in the first instance appellant took agency of Burmashell (lateranmed as Bharat Petroleum) and started running a petrol pump on that land. Later on, respondent No. 1 joined the appellant. After some time resondent No. 1 dropped the appellant and joined respondent No. 2 in the business. Later on, respondent No. 1 was also dropped by respondent No. 2 and at present respondent No. 2 is controlling the business of the petrol pump. Money for strating the petrol pump was provided out of the ancestral funds. It is further alleged that besides the properties mentioned in the schedule, HU own large tracts of agricultral and other lands which have since been acquired and compensation in respect of some of the lands has alredy been received by respondent No. 1. Some of the compensation cases in respect of the acquired lands are still pending in various Courts. It is stated that an attempt to partition the ancestral properties was made in the year 1980 and an agreement dated February 6, 1980 was also executed in between the appellant and respondents 1 to 3. However, this agreement was never acted upon by the parties and it is, thus, void and invalid. It was prayed that preliminary decree(s) for partition of the ancestral properties, rendition of accounts in respect thereof as also the business of the petrol pump may be passed in favour of the appellant and against the respondents.

(3.) Respondent No. 1 in his written statement alleged that the properties mentioned at serial Nos. 1,2,3,5 and 7 of the schedule annexed to the plaint are his self-acquied properties while property at serial No. 4 of the schedule bearing No. 167, Raj Pur Gur Mandi, Delhi, was constructed by him though the land underneath the same was ancestral. Property at serial No. 6 of the schedule is ancestral. It is alleged that the appellant has not disclosed the other properties as mentioned at serial Nos. 8 & 9 of the schedule, nor has given the particulars of the acquired properties mentioned at serial No. 10. Properties at serial Nos. 1,2,3,5 & 7 and the structure of property at serial No. 4 being self-acquired are not subject to partition and, therefore, the suit to that extent is liable to be dismissed. It is emphatically denied that respondent No. 1 is realising income of any ancestral property. It is, however, not disputed that the appellant and respondents 2 to 4 are the sons of respondent No. 1 and business of petrol pump is being controlled exclusively by respondent No. 2, as alleged. It is pleaded that on the intervention of the relations, a family arrangement was arrived at between the appellant and respondents 2 & 3 on the one hand and respondent No. 1 on the other hand but it was not legal. It is stated that the appellant and respondents 2 & 3 are collecting the rents. Appellant also sold out plot No. 25A, G.T. Karnal Industrial Area, Delhi and appropriated proceeds thereof.