A compromise decree is not subject to challenge based on claims of fraud without sufficient evidence, and rejection of a partition suit is valid under procedural bars when the decree has been acted upon.

JUDGMENT :

G.JAYACHANDRAN, J.

The Appeal Suit is filed by the respondents/plaintiffs against the judgment and decree passed in O.S.No.129 of 2014, on the file of IV Additional District & Sessions Judge, Coimbatore.

2. In respect of properties left behind by Krishnasamy Konar, a suit for partition filed by his daughter against the other legal heirs of Krisnasamy Konar, contending that the compromise decree entered between the parties in O.S.No.233 of 1996, dated 29.08.1996 is not valid as it was obtained by misrepresentation and fraud. Furthermore, since the final decree was not engrossed in the stamp paper, hence the decree has become infructuous. Hence, the properties which remains under due to be divided.

3. Application under Order VII Rule 11 of C.P.C., filed by the 8^th and 9^th defendants, who are the sons of the first defendant and the grandsons of Krishnasamy Konar. They have pleaded that the compromise decree was acted upon and the parties after taking possession of the respective shares enjoying it exclusively. Therefore, the subsequent suit for partition filed in respect of the same properties after a lapse of 18 years, is barred by law.

4. The plaint was rejected holding that, pursuant to the compromise decree passed in the partition suit O.S.No.233 of 1996, dated 29.08.1996, the suit subject properties had already been divided among the legal heirs of Krishnasamy Konar, including the plaintiff. The first defendant, in the suit had settled a portion of his share to his sons, who are the defendants 8 and 9. The subsequent suit to declare the earlier compromise decree, passed 18 years ago, is not maintainable. The failure to get the decree engrossed on a Non-Judicial Stamp Paper will not render the decree infructuous. A Order XXIII Rule 3A of C.P.C., bars subsequent suit to nullify the earlier compromise decree, on the ground that the decree is unlawful.

5. The plaintiff died during the pendency of the application. Her legal heirs got themselves impleaded and contested the application. Aggrieved by the rejection of the plaint on the grounds of limitation and in view of the bar under Order XXIII Rule 3A of C.P.C., the present appeal suit is filed.

6. The learned counsel for the appellants submitted that the Court below failed to consider that, despite the compromise decree dated 29.08.1996, the parties continued to be in joint possession and the earlier decree was neither engrossed on stamp paper nor acted upon. In the absence of division of the properties, a fresh partition suit is maintainable.

7. Both the questions, whether the properties continue to be in joint possession and whether the suit is barred by limitation are mixed questions of fact and law. In such circumstances, the trial Court ought not to have rejected the plaint without subjecting the parties to undergo trial.

8. It was also contended by the Learned Counsel for the appellants that a similar petition filed by the first defendant for rejection of plaint was dismissed. The present petition is filed by the sons of the first defendant. The trial Court erred in entertaining the second petition for the same reasons, after the dismissal of the first petition.

The point for determination:-

Whether rejection of plaint on the ground of limitation and barred under Order XXIII Rule 3A of C.P.C., is in accordance to law in force?

9. The suit for partition laid on the following grounds:

a) The earlier compromise decree obtained by fraud and misrepresentation.

b) The compromise decree not acted upon. The parties are still in joint possession.

c) The earlie