A party may file a suit to enforce a compromise decree when non-compliance is proven, regardless of previous dismissals for the same cause of action.

JUDGMENT :

SHAILESH P. BRAHME, J.

1. Heard both sides finally with their consent.

2. Appellants have taken exception to the judgment and decree passed by Trial Court in Regular Civil Suit No.22 of 2006 which is further confirmed by Lower Appellate court in Regular Civil Appeal No.236 of 2008. Appellants are original defendants. Respondent No.1 had filed Regular Civil Suit No.22 of 2006 for declaration and possession. Parties are referred to by their original status in the suit.

3. Respondent is mother-in-law of the appellant/defendant No.3. She had five sons including husband of defendant No.3 Damodhar. Appellant Nos.1 and 2 are the sons of Damodhar. The subject matter is land Gut No.89 measuring 6 Acre 10 R. which was allotted to the plaintiff in a partition which took place in 1983. Damodhar was also allotted land Gut No.79 which was subsequently alienated by him to the extent of 4 Acre 20 R. vide sale deed dated 10.10.1983.

4. It is the case of the plaintiff that she was unable to cultivate her land allotted to her and her son Damodhar and grandsons were handed over the possession of suit land for cultivation on Batai basis. It is further contended that they took disadvantage and got themselves mutated in the record of right with an intention to grab the suit land. She was required to file Regular Civil Suit No.283 of 1996 for declaration and possession against Damodhar and appellant Nos.1 and 2.

5. Regular Civil Suit No.283 of 1996 was compromised vide terms of settlement vide Exh.19. A compromise decree was passed on 19.01.1998. It was agreed that defendants in that suit would pay Rs.2,000/- to the plaintiff and then defendants would become owner of the land after demise of plaintiff. There was non-compliance of the terms of the settlement which constrained present plaintiff to file Regular Civil Suit No.268 of 2003 again for declaration and possession. It was dismissed for default on 21.12.2004. Damodhar and present defendants refused to abide by the compromise decree which is cause of action to prefer present suit on 21.01.2006.

6. Appellants contested the suit on the ground that plaintiff is not the owner of the suit land. There was partition in the family and thereafter suit land was handed over to Damodhar and defendants. Plaintiff partitioned her share in favour of the defendants which is reflected in mutation entry No.736. As per the compromise decree passed in Regular Civil Suit No.283 of 1996, the defendants were paying her maintenance.

7. The oral evidence was led before the Trial Court by the parties. Trial Court decreed the suit vide judgment dated 28.07.2008. Being aggrieved, Regular Civil Appeal No.236 of 2008 was preferred which ultimately resulted into dismissal on 19.01.2011.

8. Learned counsel for the appellants Mr. Shingare submits that suit challenging the compromise decree passed in Regular Civil Suit No.283 of 1996 filed by the respondent is not maintainable. It is further submitted that plaintiff had filed one more Regular Civil Suit No.268 of 2003 for self same relief which was dismissed for default. It is submitted that present suit was barred by time. It is further submitted that both Courts below should not have gone into the terms of settlement and the alleged non-compliance.

9. Learned counsel Mr. Shingare further submits that the suit land was already allotted to deceased Damodhar and appellant Nos.1 and 2 and after death of respondent, they became absolute owner. It is submitted that both Courts be