Saurabh Banerjee JUDGMENT
Saurabh Banerjee, J.
1. By virtue of instant appeal, appellant impugns the preliminary decree of partition dated 09.02.2017 (hereinafter referred to as "preliminary decree") and the final decree of partition dated 08.03.2017 (hereinafter referred to as "final decree") passed by Learned Single Judge in suit bearing CS(OS) 388/2016 (hereinafter referred to as "suit").
2. Respondent no. 1 instituted a suit for partition of property bearing no. 319, Deepali, Pitampura, Delhi-110034 (hereinafter referred to as "property") and for rendition of accounts against respondent no. 2, appellant and respondent nos. 3 to 5 on the basis of the rent recovered by appellant herein with respect to the second floor of the property, claiming that the property belonged to Late Mr. N.K. Govila, who had died intestate on 09.05.2001. The parties herein are related to Late Mr. N.K. Govila as he is the father of appellant and respondent nos. 1 to 3 and father-in-law of respondent no. 4 and grandfather of respondent no. 5. Said Late Mr. N.K. Govila died intestate leaving his legal heirs namely widow, Late Ms. Shakuntala Goyal, appellant, respondent nos. 1 to 3 and late Ms. Madhu Gupta, predecessor-in-interest (wife of respondent no. 4 and mother of respondent no. 5) of respondent nos. 4 and 5, who acquired 1/6th share each. Thereafter his daughter, late Ms. Madhu Gupta also died intestate leaving her surviving legal heirs namely respondent nos. 4 and 5. Resultantly appellant and respondent nos. 1 to 3 acquired 1/5th share each and respondent nos. 4 and 5 acquired 1/5th share conjointly in the property.
3. Respondent nos. 2, 4 and 5 in their consolidated written statement and respondent no. 3 in her separate written statement, admitted and supported the case of respondent no. 1 with respect to partitioning of property and also rendering of accounts of rent realised from second floor of the property.
4. Contrary thereto, appellant chose to contest the suit on various grounds, primarily contending that the suit was barred by limitation and that suit was not properly valued. Appellant further contended that his father Late Mr. N.K. Govila had disowned respondent no. 1 vide Will dated 15.03.1999, which though not executed by Late Mr. N.K. Govila but was made by him while he was alive and thus the suit was not maintainable in view of the Will of Late Mr. N.K. Govila. He lastly contended that the second floor of property was constructed by appellant out of his savings during the lifetime of Late Mr. N.K. Govila and furthermore that none of the parties had any share in the rent derived from the second floor of the property.
5. Upon considering case of the parties, Learned Single Judge vide preliminary decree of partition of property found no merit in the contention of counsel for appellant qua limitation as it was not a material plea to be put to trial and as none of the pleas in the written statement appeal merit framing of an issue and further recorded the statement of appellant to the effect that he has exclusively been realising rent of Rs. 8,000/- per month from the tenant on second floor of property af........