JUDGMENT

This matter is listed for admission and I have heard the learned counsel for the appellant. This regular second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration is that he himself and defendant Nos.2 to 4 are the joint owners of suit schedule property and to declare that the compromise decree passed in O.S.No.10/2000 dated 21.04.2009 is partly null and void with respect to the share allotted to 1st defendant and for consequential relief of permanent injunction restraining the 1st defendant or any others acting under him in any mode from interfering with plaintiff’s peaceful possession and enjoyment over the suit property. The main contention of the plaintiff in the said suit is that he along with deceased M.S. Manjunatha are the joint owners of the suit schedule property and also claims interference by the defendants with his peaceful possession and enjoyment of the suit schedule property. It is also his contention that compromise petition was filed in the suit in O.S.No.10/2000 and the said suit came to be dismissed in terms of the compromise petition on 21.04.2009.

3. The defendant Nos.1 to 4 appeared and filed the written statement contending that the plaintiff is not entitled for the relief and sought for setting side the decree passed in O.S.No.10/2000 and also contend that suit is barred by limitation.

4. The Trial Court having considered the material on record, answered issue Nos.1 to 3 as ‘negative’ and accepted the contention of the defendants that unless the compromise decree passed in O.S.No.10/2000 is set aside, the plaintiff is not entitled for any relief and also comes to the conclusion that the suit is barred by limitation and after prolonged period, the compromise petition is filed.

5. Being aggrieved by the judgment and decree of dismissal of the suit, an appeal is filed before the First Appellate Court in R.A.No.5020/2023. The First Appellate Court also, on re-appreciating both oral and documentary evidence placed on record, comes to the conclusion that the Trial Court has not committed any error and even extracted the answer elicited from the mouth of witnesses, particularly in Paragraph No.15 of the judgment and comes to the conclusion that defendants actively participated in the proceedings in O.S.No.10/2000 and the same was presented before the Court and pleaded that when already there was compromise in accordance with law vide order dated 21.04.2009, the plaintiff has not proved fraud or misrepresentation of facts. Hence, answered the point as ‘negative’. Being aggrieved by the concurrent finding, the present second appeal is filed.

6. The main contention of the learned counsel for the appellant is that both the Courts failed to consider the fact that the decree obtained in O.S.No.10/2000 is outcome of fraud and the fraud vitiates everything including the decree of the Court. It is contended that both the Courts failed to consider that since the compromise itself is void, the suit to set aside the said compromise is competent and maintainable. It is also contended that when the allegation of fraud is made, both the Courts ought to have considered the same. Learned counsel would vehemently contend that this Court has to frame substantial questions of law whether the Courts below were justified in dismissing the suit of the plaintiff as barred under Order 23 Rule 3(a) of CPC and whether the Courts below were justified in dismissing the suit of the plaintiff ignoring the plea of fraud set up by the plaintiff seeking to set up a decree dated 21.04.2009 and contend that both the Courts committed an error.

7. Having considered the factual matrix of the case, it is very clear that, earlier a suit was filed and decree was passed. It is also very specific that when fraud has been alleged by the plaintiff in obtaining the earlier compromise, the plai