JUDGMENT :

The plaintiff is the appellant in the present Second Appeal.

2. The suit was filed by the appellant seeking for the relief of declaration to declare the final decree dated 07.06.2006 passed in I.A.No.291 of 2005 in O.S.No.138 of 2002, as null and void. The main ground that was taken by the appellant to challenge the final decree as null and void is that it is vitiated by fraud.

3. The case of the appellant is that she along with her mother became the owner of the suit property by virtue of registered Settlement Deed dated 24.04.2006 executed by her father P.V.Kandasamy. The further case of the plaintiff is that the 2nd and 3rd defendants filed a suit for partition against the 1st defendant and the above said P.V.Kandasamy in O.S.No.138 of 2002. An ex-parte decree was passed in the said suit on 09.04.2003. Pursuant to the same, the 2nd and 3rd defendants filed a petition in I.A.No.282 of 2005 for passing final Decree. When the final decree application was pending, a compromise petition came to be filed under Order XXIII Rule 3 of C.P.C. in I.A.No.291 of 2005. It is during the pendency of this compromise petition, the Settlement Deed came to be executed by Mr.P.V.Kandasamy in favour of the appellant and her mother on 24.04.2006. In spite of the same, ultimately a final decree came to be passed based on the compromise petition on 07.06.2006. According to the appellant, this final decree is vitiated by fraud and hence, the appellant filed the present suit seeking to declare the final decree as null and void.

4.The suit was contested by the defendants and they took a specific stand that the appellant was aware about the partition suit even at the time when the Settlement Deed was executed in her favour. They also took a stand to the effect that the appellant filed an earlier suit in O.S.No.1347 of 2007 for bare injunction and when a written statement was filed in that suit, the decree passed in O.S.No.138 of 2002 was specifically mentioned. This suit was dismissed and it was also later confirmed in appeal. Therefore, according to the defendants, the plaintiff was aware about the decree passed in the partition suit and in spite of the same, did not challenge it at the appropriate point of time and has chosen to file the present suit only in the year 2012. The defendants also took a preliminary objection with regard to the maintainability of the suit.

5. The Courts below after considering the facts and circumstances of the case and also after appreciating the oral and documentary evidence, came to a conclusion that the appellant is not entitled for the relief sought for in the suit. Aggrieved by the same, the present second appeal has been filed before this Court.

6. When the second appeal was admitted, this Court formulated the following substantial questions of law:

i) Whether the Courts below have committed an error in holding that the plaintiff is estopped form claiming any right over the suit property in view of Ex.B2 to Ex.B7 particularly when they were filed only for the relief of permanent injunction which would not operate as res judicata or issue estoppel?

ii) Whether the Courts below are correct in placing the burden of proof upon the plaintiff to prove fraud in creation of Ex.A2 to Ex.A5 especially when in a case of this nature, the burden of proving the genuineness of the transaction is thrown upon the defendants to unburden themselves?

iii) Can the plaintiff be non-suited on the ground that she was not a party to the suit in O.S.No.138 of 2002, even though she derived right over the suit property under Ex.A6 dated 24.04.2006 executed by her father late P.V.Kandasamy (D1 in O.S.No. 138 of 2002)?

7. During the course of final arguments, this Court formulated the following additional questions of law:

Whether the plaintiff can maintain a separate suit challenging a compromise decree and whether the same is expressly barred under Order XXIII Rule 3A of C.P.C.

8.Heard the learned counsel for the appellant and the learned co