Point of Law: The remedy of the party aggrieved by the final decree in such cases would be to challenge that final decree in a manner known to law.

JUDGMENT :

1. The petitioners have approached this Court challenging Ext.P12 order through which the 1st respondent has determined that the respondents 4 and 5 are the persons entitled to compensation under LAC Nos. 621/20 and 621/ 20A before that officer. It is the case of the petitioners that respondents 4 and 5 had purchased the property from out of the property allotted to defendants 24 to 26 in O.S. No. 84 of 1986 on the file of the Munsiff Court, Payyoli. O.S. No. 84 of 1986 was a suit for partition. The preliminary decree in the suit for partition was issued on 24.01.1987. Ext.R4(a) final decree was issued on 30.09.1997. The petitioners, who are defendants 11 and 19 in Ext.R4(a) final decree, contend in main that, they were minors at the time when the preliminary decree was issued and they were represented by their mother in the said proceedings. It is their case that owing to a collusion between their mother and one of her brothers, the fact that the property which is subject matter of LAC Nos. 621/20 and 621/ 20A was allotted to petitioners by virtue of a registered partition deed executed in the year 1981, was not brought to the notice of the Court which issued the preliminary decree/final decree. According to the petitioners, this constitutes a fraud, which vitiates the preliminary decree as well as the final decree.

2. It is submitted by Adv. B. Krishnan, the learned counsel for the petitioners that even without filing any separate suit challenging the preliminary decree and the final decree, it is open to the petitioners to contend that the respondents 4 and 5, who claim under defendants 24 to 26 cannot be found entitled to compensation as determined by Ext.P12 order. The learned counsel appearing for the petitioners places substantial reliance on the judgment of the Supreme Court in Asharfi Lal vs. Smt. Koili (Dead) by LRs. AIR 1995 SC 1440 in support of his contentions. It is submitted that the proceedings of the 1st respondent determining that respondents 4 and 5 are entitled to receive compensation on the basis of the final decree in O.S. No. 84 of 1986, cannot be sustained and the matter has to be referred to the competent Court under the provisions of Section 3H(4) of the National Highways Act, 1956.

3. Adv. P.K. Suresh Kumar, the learned Senior Counsel appearing for respondents 4 and 5, on the instructions of Adv. Sreenath Girish, would contend firstly that the petitioners cannot seek to avoid the final decree in O.S. No. 84 of 1986 on the ground that they were minors, since, considering the age of the petitioners as disclosed in the writ petition, both of them had attained the age of majority at the time when the final decree was issued. It is submitted that the limitation for filing a suit to nullify a decree is 3 years from the date on which the enabling facts came to the knowledge of the plaintiff [Article 59 of the Schedule to the Limitation Act]. It is submitted that following Ext.R4(a) final decree, the property was delivered to defendants 24 to 26 in the suit as early as in the year 1998 and thereafter, by registered deed executed in the year 2002, respondents 4 and 5 obtained the properties from them. It is pointed out that even in Ext.R4(a) final decree, the petitioners have not been recorded as minors. The learned senior counsel placed reliance on the judgment of a Full Bench of this Court in Kesava Bhat vs. Subraya Bhat, 1979 KLT 766 as also the judgment of a learned Single Judge of this Court in Kaprat Family Trust and Others vs. Union of India and Others, 2022 (2) KLT Online 1220, to contend that a reference under Section 3H of the National Highways Act, 1956 can only be made if a dispute arises. In other words, it is his contention that merely on account of the fact that some person raises a claim to receive compensation, a dispute does not ‘arise’ for the purposes of a reference under Section 3H of the National Highways Act, 1956. It is submitted that the petitioners were parties to Ext.R4(a) f