A stranger defendant purchaser of the suit property from the co-sharer of the plaintiff can challenge a compromise decree passed in an earlier suit for partition brought by the plaintiffs against his co-sharers vendor of defendants that the decree was obtained by the plaintiff by practising fraud and misrepresentation and the same is inoperative and not binding on him.

N. P. Singh and J JJ.

1. This appeal by the plaintiffs-appellants is directed against the judgment of affirmance, rendered by Shri S. N. Gupta Additional district Judge VI, Munger in Title Appeal No, 64/80.

2. The substantial question of law formulated in this appeal is whether a stranger defendant purchaser of the suit property from the co-sharer of the plaintiff can challenge a compromise decree passed in an earlier suit for partition brought by the plaintiffs against his co-sharers vendor of defendants that the decree was obtained by the plaintiff by practising fraud and misrepresentation and the same is inoperative and not binding on him.

3. The legal position is that decree can only be challenged by the party to the suit and not by a stranger to the suit. But in a suit where a declaration is sought by the plaintiff that the sale deed executed by his co-sharer in favour of defendants was against the compromise decree, the defendant is not precluded under the law to take a defence that in the earlier suit for partition was obtained by the plaintiff by practising fraud and misrepresentation.

4. The plaintiff-appellant fifed Title Suit No.93/77 before the Munsif ii, Munger for declaration of title, confirmation of possession and in the alternative recovery of possession of the suit land and the mesne profit The case of the plaintiff-appellant is that he earlier brought Title Suit No.73/67 against the defendant-Respondents 2nd and 3rd party for partition and the suit was compromised between the parties and 23-25 decimals of S. P. Plot no, 326 having a total area of 29 decimals was alloted to him and rest 5-75 decimals were allotted to defendant 2nd party. The defendant-Respondent 3rd party, however, was not allotted any share in this plot. On the basis of which compromise decree was passed in terms of compromise petition and the parties were came possession over the same. The defendant-Respondent 1st party, however, dishonestly got a sale deed executed for 14 decimals of land over S. P Plot No.326 in her favour on 17-5-1968 by the defendant-respondent 2nd party. Therefore, the sale deed dated 17-5-1968 in favour of defendant-Respondent 1st party was illegal and void. It was further alleged by the plaintiff-appellant that the defendant-2nd party had no right to execute the sale deed beyond his share to the extent of 5.75 decimals of land.

5. The defendant-respondent 1st party filed written statement and contested the suit. She in her statement asserted that the plaintiff-appellant separte from his brother Anant Lal Mishra and others by metes and bounds in the year 1941. The plaintiff-appellant, however, dishonestly filed Title suit No.73/67 for partition by suppressing the materials facts. After filing the Title Suit No.73/67 the defendant Anant Lal Mishra died during the pendency of the suit and the plaintiff-appellant taking advantage of the helplessness of the defendant-respondent 2nd and 3rd party maneuvered a compromise and got 23-25 decimals of land of S. P. Plot No.326 allotted to his share giving only 5-73 decimals of land to Anant Lal Mishra. On/the basis of compromise petition the suit was decreed. She further asserted that Anant Lal Mishra was all along in possession of 14 decimals of land of S. P. Plot No.327 to the extent of his share and after his premature death his heirs defendant-respondent 2nd party succeeded to his property and they 14 decimals of land of S. P. Plot No.326 in her favour by registered sale deed dated 17-5-1986 and on the basis of the sale deed she came in possession. Thereafter, the plaintiff appellant filed pre-emption case under Sec.16 (3)under the Celling Act but the plaintiff lost pre-emption upto the Board of revenue.

6. The trial court dismissed the suit and the same was affirmed by the additional District Judge VI, Munger.

7. Shri Sukumar Sinha, learned counsel for the appellants has contended that the defendant-respondent 1st party has purchased the suit land from the defendant