J U D G M E N T

NEENA BANSAL KRISHNA, J I.A.6028/2017

1. An application under Order VII Rule 11 read with Order 12 Rule

6 CPC, 1908 has been filed by the defendants for rejection of the suit.

2. The defendant has submitted that the suit filed by the plaintiff for Partition of ancestral family property by metes and bounds, is completely barred by Section 6 of the Hindu Succession Act, 1956.

3. Additionally, in the present case, a Final Compromise Consent Decree dated 10.09.1985, under Order XXIII Rule 3 of CPC , 1908, with respect to the suit properties, has already been passed in Civil Suit No.1937/1984 titled as „Shri Harkirat Singh Sodhi vs. Harbhajan Singh Sodhi & Ors.‟, which was filed by the Defendant No.1 against his father and grandparents, for Partition and Rendition of Accounts. The requisite stamp duty has been paid by defendant No.1 and the Final Compromise Decree has been duly passed/prepared as well as acted upon. The plaintiff, therefore, cannot seek any partition as has been sought by way of present plaint.

4. It is further asserted that the properties got allocated to defendant No.1 in terms of Compromise Decree dated 10.09.1985 and now these properties belong exclusively to defendant No.1. Even otherwise, the suit properties do not belong to the coparcenary qua the plaintiff and since, the defendant No.2, the father of the plaintiff and defendant No.1, is alive, the plaintiff cannot claim any right in the properties during the lifetime of the father and thus, the present suit is not maintainable.

5. The present suit is also claimed to be barred on the principles of Estoppel as defined under Section 115 of the Indian Evidence Act, 1872. The plaintiff is estopped from challenging the exclusive and absolute title of defendant No.1 in respect of the suit properties since she was fully aware about the Civil Suit No.1937/1984 initiated by defendant No.1. Additionally, she was not only aware of the compromise inter-se the parties in the said suit, but was also a signatory to the application, bearing I.A. No.4606/1985, dated 17.08.1985, filed under Order XXIII Rule 3 of CPC 1908, in the said Civil suit, for bringing the compromise on record. The compromise application was also duly supported by the Affidavit of the plaintiff/Amita Gandoak, reflecting that she was not only aware of the suit but also of the compromise inter-se the parties. It is further asserted that the consent Decree was in the form of Memorandum of Family Settlement, which has been completely acted upon and it cannot be disturbed in any subsequent proceedings.

6. The suit is also barred under Order XXIII Rule 3A CPC, 1908 as any challenge to the earlier Partition Decree cannot be made by any independent suit as has been done by the plaintiff. No appeal is maintainable against the Consent Decree which is specifically barred under Section 96(3) CPC, 1908. To avoid a consent decree, the party could have only approached the same Court which had recorded the compromise and made a decree. The same cannot be challenged by way of a separate suit. It is, therefore, submitted that the present suit is an abuse of process of law and does not disclose any cause of action. It is liable to be rejected out rightly.

7. Further, the final Decree of Partition dated 10.09.1985 is binding on the principles of res judicata. The rights of the parties stand crystallized by the Consent Decree dated 10.09.1985 and the same cannot be re-opened by way of present suit, after 31 years. The plaintiff had not sought any relief for Declaration of alleged rights, entitlements and without challenging the final Partition Decree dated 10.09.1985, the present suit is not maintainable.

8. It is argued that, she cannot seek partition of the property which have been exclusively and individually allocated to defendant No.1 in terms of final Decree dated 10.09.1985. There was no HUF or HUF properties ever existing in respect of which the partition can be sought by the plaintiff. Rather, admissions h