Decree obtained in terms of compromise can be challenged in revision.

1. The first respondent/plaintiff filed the suit in O.S.No. 356 of 1996 on the file of the Sub-Court, Namakkal, impleading the first defendant therein and the respondents 2 to 4 as defendants 3 to 5. The said suit was filed for partition of plaintiff’s 1/12 share in survey No. 533 and for injunction restraining the defendants 3 to 5 from putting up any new or additional constructions in S.No.533/1. In the plaint it is specifically stated that in an extent of 3. acres and 23 cents, shown in the ‘A’ schedule to the deed of acknowledgment of partition, a partition was held between the plaintiff and the second defendant. According to the plaintiff/first respondent, a subdivision was effected. The land in survey No.533 was subdivided into three portions. Survey No. 533/1 measuring 5 acres 56 cents belongs to the plaintiff and defendants 1 and 2. It is also specifically stated that the plaintiff and defendants 1 and 2 together completely hold survey No.533/1, which is the suit property. The first defendant filed written statement and paid the court fee for division of his share in the property. When the case was posted on 24. 1998, the first and sixth defendants entered into compromise and a compromise memo was filed and it was recorded on 24. 1998. Immediately on 24. 1998 the matter was posted for counter on 24. 1998 . On 24. 1998 counter was filed and the matter was posted for orders on 30.4.1998, in the application filed by the petitioner/first defendant in I.A.No. 612 of 1998, with a request to transpose himself as the plaintiff. On 30.4.1998 that application was rejected by the Court below on the ground that the first defendant has already been given up and so the petition cannot be maintained. On the same day, the court below passed the decree as per the terms of the compromise memo filed by the plaintiff and other defendants. Aggrieved against the order refusing to transpose the petitioner as the plaintiff, the petitioner has filed the above Revision.

2. In view of the abovesaid admitted facts, now we have to decide whether the petitioner is entitled to be transposed as plaintiff, in spite of the fact that the decree has been passed on the basis of the compromise decree.

3. The first respondent filed the suit for partition specifically admitting the share of the petitioner/plaintiff in the suit property. In such circumstances, can he abandon the suit and the compromise decree entered into with others by giving up the petition, without even amending the plaint.

4. While dealing with the similar issue, in Basudeb Narayan v. Shesh Narayan , AIR 1979 Pat. 73, the learned Judge has dealt with the right of the plaintiff and has held as

follows:-

“The principles which can be deduced out of the cases aforesaid are clearly the following:-

(1) The plaintiff under sub-r. (1) of Rule 1 of Order 23 of the Code has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances; (3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; and (4) that 0.23, R. 1 sub-r.(1) of the Code applies even to a partition suit, subject to the aforesaid limitation.”

5. The apex court while dealing with similar issue in R. Ramamurthi v. V. Rajewararao , AIR 1973 SC 643, has held as follows:-

“Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned.

It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that S.3 confers a privilege or an option on t