S JASWANT SINGH Vs. S DARSHAN SINGH DECESED

JUDGEMENT

(1.) Presently, I have heard arguments for deciding Issue No. 5 which was 1992 Delhi/ 6 III G-22 treated as Preliminary Issue and the same is to the following effect

(2.) At the stage of arguments, the counse: for defendant No. 1 has urged that present suit is barred under the provisions of O. 23(1)(4) of the Code of Civil Procedure in asmuch as on the same subject matter, the plaintiff had instituted Suit No. 101/73 which he had withdrawn without any permission to file fresh suit on the same subject matter.

(3.) Facts of the case relevant to the issue ir question in brief, are that Plot No. 144, Blod No. 171 in Sunder Nagar was obtained or perpetual lease from the President of India by plaintiff and defendant No. 1 in respect of which a Lease Deed was executed and registered on November 7,1960. The plaintiff and defendant No. 1 have constructed a house on the said plot which now bears Municipa No. 144, Sunder Nagar, New Delhi. It is the case of the plaintiff that plaintiff and defen dant No. 1 are the joint owners of the said property having equal share and plaintif seeks partition of the said property by mete and bounds in order to have his separate share. In this suit, it was pleaded that defendant No. 2 had been inducted by the plaintiff in the first floor of the said house as a Licencee and his licence having been revoked defendant No. 2 is required to vacate the said portion and hand over the same to this plaintiff. It is also pleaded that defendants 1 & 2 are liable to pay mesne profits to the plaintiff and usufruct of entire property in about Rs. 14,000.00 per month and the plaintiff has become entitled to a sum of Rs. 2.52.000.00 @ Rs. 7,000.00 per month from defendants 1 & 2 jointly and severally Plaintiff also pleaded that the property in question stood mortgaged with defendan No. 3, Punjab National Bank and certain stamped documents have been executed between plaintiff and defendants 1 & 2 which were not intended to be acted upon and were to be used as rear guard action against Punjab National Bank in case Punjab National Bank was to take any steps in respect of the property in question. It was pleaded that these documents could be used as a lever for the purpose of settling with the Punjab National Bank and no relief is being sought in the suit against Punjab National Bank but it has been impleaded as a necessary and in any case a proper party in order to effectually and completely adjudicate upon the controversy involved in the present suit.