CAV ORDER

Heard the learned counsel for the petitioner as well as learned counsel for the respondents.

2. This Civil Revision application has been filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) against the order dated 04.04.2024 passed in the partition Suit No. 356 of 2013, by the learned Court of Sub-Judge II, Muzaffarpur (hereinafter referred to as ‘Trial Court’) whereby and whereunder the learned Trial Court has dismissed the application dated 13.01.2017 filed by the petitioner/defendant no.2 for dismissal of the partition suit under Order VII Rule 11 of the CPC, on the ground of non-maintainability as it involve mixed question of law and fact.

3. The facts of the case, in brief, are that the Opposite Party No.1 (plaintiff) instituted Partition Suit No. 356 of 2013 seeking a preliminary decree for partition with respect to the properties described in Schedule I and Schedule II of the plaint claiming 1/4th share therein. In the said suit, the plaintiff also prayed for a declaration that the compromise petition filed in earlier Partition Suit No. 435 of 2002 and Partition Suit No. 273 of 2006, which culminated in an award before the Lok Adalat, was fraudulent, illegal and obtained by playing fraud upon the plaintiff. The petitioner (defendant no.2) and other defendants appeared in the suit and filed their joint written statement raising several objections with respect to the maintainability of the suit, including that the suit was barred by the principles of res judicata, barred under Order XXIII Rule 3A of the CPC and that the suit had been undervalued and requisite ad-valorem court fee had not been paid. Thereafter, the petitioner (defendant no.2) filed an application dated 13.01.2017 before the learned Trial Court praying for dismissal of the suit or rejection of the plaint, inter alia, on the grounds that the suit properties were the exclusive properties of the petitioner (defendant no.2) and not liable for partition, the suit was barred by res judicata in view of the earlier compromise before the Lok Adalat, the suit was barred under Order XXIII Rule 3A of the CPC, and that the plaintiff had failed to pay proper ad-valorem court fee despite seeking declaration and consequential relief. The said application was contested by the plaintiff and was ultimately disposed of by the learned Trial Court vide order dated 04.04.2024 holding that the question of maintainability of the suit involves mixed questions of law and fact and therefore cannot be decided as a preliminary issue.

4. It is the case of the petitioner/defendants that the properties sought to be partitioned were the exclusive properties of petitioner (defendant no.2) and not liable for partition. They denied the allegations of fraud and breach of trust, stating that Opposite Party No.1 was educated and mature and that the Lok Adalat compromise was executed with free consent of all parties. It was also stated that Partition Suit No. 559 of 2009 filed earlier by Opposite Party No.1 with regard to the same property was dismissed on 30.07.2013 as it is barred by res judicata in view of the compromise in Partition Suit No. 273 of 2006. The claim of the plaintiff that he came to know about the compromise only in 2011 was denied, asserting that she had been aware of the proceedings and had obtained a certified copy of the compromise deed. It was further stated that one property in Schedule I was taken on lease by the plaintiff’s husband from petitioner (defendant no.2).

5. The petitioner further sought declarations that the Lok Adalat award cannot be challenged in the partition suit by seeking declaration of nullity on the ground of fraud. It is well established fact that the issues of maintainability including res judicata, court fee and bar under Order XXIII Rule 3A of the CPC are pure questions of law and liable to be decided as preliminary issues. Consequently, dismissal of Partition Suit No. 356 of 2013 is barred and no