The court confirmed that a partition suit continues despite the death of a party, and the discretion to accept or reject a compromise petition must prevent illegalities.

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri Ravishankar Shastry, learned counsel for the appellants and Sri G. Nataraja Ballal A., learned counsel for contesting respondents.

2. Present appeal is filed challenging the order passed by the First Appellate Court in unnumbered R.A……../2018, whereby I.A.No.II filed by the appellants in the said appeal under Section 5 of the LIMITATION ACT came to be rejected, consequently, appeal came to be rejected, whereby decree of the trial Court in O.S.No.77/1996 got confirmed.

3. Facts in the nutshell for disposal of the present appeal are as under:

A suit for partition and separate possession came to be filed in respect of the following properties (hereinafter referred to as ‘suit properties’).

4. Plaintiff laid the claim contending that plaintiff and defendant Nos.1 to 5 are the children of Guruva Sapalya and defendant No.6 is the daughter-in-law and defendant No.7 is the granddaughter of said Guruva Sapalya and they all constitute a joint family.

5. Suit properties is possessed and enjoyed by said Guruva Sapalya as a Chalgeni tenant. After the Karnataka Land Reforms Act came into force, Guruva Sappalya filed Form No.7 before the Land Tribunal, Bantwal and occupancy rights in respect of the suit property was granted by the Land Tribunal, Bantwal, in the name of Guruva Sapalya, as per the order dated 31.08.1976.

6. Landlord challenged the said order of the Land Tribunal in respect of item Nos.1 and 2 of the suit properties before this Court and matter was remitted to Land Tribunal for fresh consideration.

7. After remand, a fresh enquiry was held and by order dated 29.04.1988, again occupancy right was granted in the name of Gangayya Sapalya, who is the husband of defendant No.6 and father of defendant No.7 and defendant Nos.2 and 3 in respect of item Nos.1 and 2 of the suit properties, since Guruva Sapalya died intestate living behind the plaintiff, late Gangayya Sapalya and defendant Nos.2 to 5 as his legal heirs, suit for partition came to be filed.

8. Gangaya Sapalya died on 08.02.1996 leaving behind defendant Nos.6 and 7 as his legal heirs and defendant Nos.2 and 3 are trying to exclude plaintiff from enjoying the suit properties. Therefore, suit for partition came to be filed seeking 1/7^th share in the suit properties.

9. Pursuant to the suit summons, defendants entered appearance but none of them filed any written statement to contest the suit.

10. It is submitted that during the pendency of the suit, a compromise petition came to be filed along with the sketch.

11. By perusing the order dated 20.01.1998, it is seen that parties appeared and admitted the compromise. However, Court did not accept the compromise. Matter was postponed further and ultimately when there was no acceptance of the compromise by the Court as is contemplated under Order XXIII Rule 3 CPC, plaintiff proceeded with the suit.

12. Learned trial Judge after recording the evidence of the plaintiff, raised the necessary points and decreed the suit granting 1/7^th share.

13. It is the contention of the present appellants that by the time the suit came to be decreed, defendant No.1 and defendant No.3 were no more and as such, decreeing the suit against the dead persons has resulted in grave injustice and sought for admitting the appeal.

14. He also contended that the