Sunil Dutta Mishra, J. – Heard Sri Ganpati Trivedi, learned senior counsel for the petitioner and Sri J.S. Arora, learned senior counsel for the opposite party no. 1.

2. This Civil Revision application has been filed against order dated 25.01.2017 passed by learned Sub Judge- VI, Patna in Title Partition Suit No. 434 of 2013 whereby the learned court below has rejected the petition of the petitioner filed under Order VII Rule 11 and Section 11 of the Code of Civil Procedure ( in short “CPC”).

3. The brief facts of the case are that plaintiff/opposite party no. 1 filed Title Partition Suit No. 434 of 2013. In the said suit plaintiff no. 1 Most. Kamla Devi ( died on 09.01.2014) is mother and plaintiff no. 2 Smt. Laxmi Devi is sister of defendants. The defendant no. 1 Dr. Shankar Prasad had filed a suit for partition in regard to joint family properties vide T.S. No. 62 of 1992. It is claimed that defendant nos. 1 and 2 pursuaded their mother, plaintiff no. 1 not to take due share since they will maintain her whole life with due respect and regard and also persuaded plaintiff no. 2 and defendant no. 3 (sisters) not to take any share by reiterating the same assurance which was given to the mother. A compromise petition was prepared and the property was mainly allowed to be partitioned between defendant nos. 1 and 2 and a decree of partition in terms of compromise was passed therein on 29.04.1995. The plaintiff no. 1 of this suit was given 1634 sq. ft. of land at Kumhrar and also right to realize rent from a shop at Baripath, Patna.

4. It is alleged that plaintiff no. 1 herein has never been maintained by her sons i.e. defendant nos. 1 and 2 nor she was allowed to ever collect rent from the shop at Baripath, Patna and plaintiff no. 2 alone had taken care of her including her medical expenses. Mother was forced to file Maintenance Case No. 96 (M) of 2010 against defendant nos. 1 and 2. She had to take loan for her survival and to repay the loan she had to sell the said 1634 sq. ft. of land.

5. The present suit has been filed by plaintiffs since the previous decree is a nullity and void on the ground that the decree of partition was obtained by defendant nos. 1 and 2 illegally, unlawfully, fraudulently by practicing fraud upon plaintiffs and also upon the court. The said compromise decree is based on unlawful agreement is a nullity and void in the eye of law. It is also stated that plaintiffs are also filing a separate Misc. Case under Section 151 CPC to revoke, recall and cancel the said decree passed in T.S. No. 62 of 1992. The said Misc. Case No. 01 of 2013 (04 (A)/14) had been filed in the Court concerned for setting aside the Judgment and decree dated 29.04.1995 passed in T.S. No. 62 of 1992 on the basis of fraud committed upon them as defendant nos. 1 and 2 did not act accordingly to the terms of the compromise. It appears that the said Misc. Case was dismissed by detailed order dated 15.07.2017.

6. Learned senior counsel Mr. Ganpati Trivedi, appearing for the petitioner submits that the Trial Court failed to appreciate that admittedly the property involved in this suit had already been partitioned under the previous compromise final decree passed in Title Suit No. 62 of 1992 between the same parties under Order XXIII Rule 3 of CPC and as per law under Order XXIII Rule 3 A of the CPC, the fresh suit on the ground of fraud shall not lie to set aside compromise decree in garb of fresh partition suit.

7. Learned senior counsel for the petitioner further submits that the plaintiff by clever drafting wants to get her suit maintainable questioning the Compromise Decree, which otherwise would not be maintainable. He further submits that it is not in dispute that the plaintiff has already moved miscellaneous case before the Court concerned for setting aside the compromise decree, however, the same was dismissed by the Court concerned. In substance, in the present suit has been filed for setting aside the compromise decree although it is stat