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1. By this order, I shall dispose of the two applications being IA No. 4874/2007 filed by the plaintiff under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC and IA No.14836/2007 filed by the defendant under Order 7 Rule 11 CPC.

2. The brief facts as per the plaint are that the plaintiff and defendant are real brothers and sons of late Shri Mohan Lal Puri and late Smt.Kaushalya Devi. They are the co-owners in equal proportion of the suit property i.e. 50% each of the property consisting of a plot measuring 518.180 sq.yds. and a residential house built thereon bearing municipal No.S-164, Panchshila Park, New Delhi.

15. Since the defendant had failed to agree to amicable partition of the property despite various demands, therefore, the present suit has been filed by the plaintiff against the defendant. The present suit along with the interim application being IA No.9840/2006 was for the first time listed on 04.09.2006 when in the presence of the counsel for the defendant, the interim order was passed. The operative portion of the interim order is as under :-

"It is not in dispute that the plaintiff and the defendant are real brothers and sons of late Shri Mohan Lal Puri. It is also not in dispute that the plaintiff and defendant are co-owners and equal shareholders of the suit property bearing No.S-1/164, Panchsheela Park, New Delhi. Both counsel state that there is likelihood of settlement between the parties being real brothers and there being no dispute about the fact that they are co-owners of the suit property. List for settlement on 20 th November, 2006. In the meantime, the defendant is restrained from creating any third party interest in the suit property."

24. The detail of the plaintiff‟s visits to India for the period 1999 to 2006, which constitutes more than 15 visits, is given in para-5 of the reply to this application. It is also stated in the said reply that there was a memorandum of understanding dated 28.02.1995 wherein there are admissions to the effect that "the land and property located at S-164, Panchsheel Park, New Delhi is jointly owned property of Pramod C. Puri and Umang K. Puri and both partners agreed to further develop the said property as per the will and wishes of their late mother Smt.Kaushalyavati Puri". In view of the above said objection to the application raised by the plaintiff, it is stated that the plaintiff has throughout enjoyed the joint, symbolic and constructive possession of the premises as co-owner, thus, it is wrong that the plaintiff has been out of possession for the last 40 years.