1.The Appellants, by filing these Appeals, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 05.09.2019 & 18.09.2019 respectively passed by the learned 1st Additional District Judge, Bhubaneswar in R.F.A. No.119 of 2018 and the Cross Appeal No.8 of 2018 arising therefrom.

The Respondent No.1 as the Plaintiff had filed Civil Suit No.279 of 2012 in the Court of Civil Judge, Senior Division, Bhubaneswar. The suit having been dismissed on the ground that it is not maintainable for the reliefs claimed while recording the findings on all other controversial issues in favour of the Respondent No.1 (Plaintiff); the Respondent No.1 (Plaintiff) had carried the Appeal under section 96 of the Code. The Appellants being the Defendant No.1 to 4 had filed the Cross Appeal challenging the findings returned by the Trial Court in favour of the Plaintiff and against them. The First Appellate Court has allowed the Appeal and decreed the suit filed by the Respondent No.1(Plaintiff). Accordingly, the Cross Appeal filed by the Appellants (Defendant No.1 to 4) has been dismissed. The present Second Appeals are at the behest of the aggrieved Defendant Nos.1 to 4 as the Appellants.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. Plaintiff’s case is that, she, Defendant No.1 and Defendant No.5 are three daughters of late Kalandi and late Mala. Defendant No.2 is the husband of Defendant No.1 whereas Defendant No.3 and 4 are the sons of Defendant No.1 and 2. Defendant No.1 and 2 have two other daughters, namely, Mani & Jhili, 

It is stated that the Defendant No.1 to 4 being in collusion with each other in order to grab the suit properties of the parents of the Plaintiff filed a collusive suit i.e. Title Suit No.515 of 1998 for partition of the property of Kalandi and Mala. The suit was filed by the Defendant No.3 as the Plaintiff and Kalandi, Mala, as well as these Defendant No.1, (daughter of Kalandi and Mala), Defendant No.2 (husband of Defendant No.1) and the Defendant No.4 (son of Defendant No.1 and 2) had been arraigned as the Defendants in the said suit. Kalandi and Mala at that point of time were not in good state of health and mind. Defendant No.1 and 2 prevailed upon them and by practising fraud, managed to obtain a compromise decree in the said suit. Although, the Defendant No.3 was never adopted by Kalandi and Mala, yet in the said suit, the Defendant No.3 as the Plaintiff had pleaded that Kalandi and Mala having no male issue, Defendant No.1 (Defendant No.4 therein) is their only daughter and Defendant No.3 is their adopted son. All these were also indicated in the compromise decree. It is stated that in the earlier suit there was deliberate suppression of the fact that Kalandi and Mala had two other daughters, who are the Plaintiff and Defendant No.5. The Defendant No.3 in the previous suit falsely pleaded that on the Dola Purnima day of the year 1980, he was adopted by Kalandi and Mala when in fact, there was no such adoption. The previous suit i.e. Title Suit No.515 of 1998 was decreed on compromise in the absence of the present Plaintiff and Defendant No.5 by practising fraud. Therefore, it is said that said decree is not binding on the Plaintiff.

Kalandi and Mala. The suit was filed by the Defendant No.3 as the Plaintiff and Kalandi, Mala, as well as these Defendant No.1, (daughter of Kalandi and Mala), Defendant No.2 (husband of Defendant No.1) and the Defendant No.4 (son of Defendant No.1 and 2) had been arraigned as the Defendants in the said suit. Kalandi and Mala at that point of time were not in good state of health and mind. Defendant No.1 and 2 prevailed upon them and by practising fraud, managed to obtain a compromise decree in the said suit. Although, the Defendant No.3 was never adopted by Kalandi and Mala, yet in the said suit, the Defendant No.3 as the Plaintiff had pleaded that Kalandi and Mala having no male issue, Defendant No.1 (Defendant No.4 therein) is their only daughter and Defendant No.3 is their adopted son. All these were also indicated in the compromise decree. It is stated that in the earlier suit there was deliberate suppression of the fact that Kalandi and Mala had two other daughters, who are the Plaintiff and Defendant No.5. The Defendant No.3 in the previous suit falsely pleaded that on the Dola Purnima day of the year 1980, he was adopted by Kalandi and Mala when in fact, there was no such adoption. The previous suit i.e. Title Suit No.515 of 1998 was decreed on compromise in the absence of the present Plaintiff and Defendant No.5 by practising fraud. Therefore, it is said that said decree is not binding on the Plaintiff.

The Plaintiff when went to the house of Defendant No.1 to 4, she was misbehaved and then was told by Defendant No.1 to 4 that she had no share in the property of Kalandi and Mala. The Plaintiff after the death of Kalandi and Mala with her two sisters, Defendant No.1 and 5 claim to be entitled to 1/3rd share each over the suit properties. She, therefore, filed the suit for partition.

4. The Defendant No.1 to 4 in their written statement having raised the issue of limitation standing as the bar for entertainment of the suit in further submitting that the suit filed after 13 years of the passing of the compromise decree in the previous suit is not maintainable and the Plaintiff has no locus standi to challenge the partition already done in the year 1999. It is also stated that there was no fraud or collusion in filing the earlier suit (Title Suit No.515 of 1998) and everything had been done rightly in the said suit. Kalandi and Mala voluntarily compromised the said suit and admitted to have adopted Defendant No.3 as their son and the Court in seisin of the said suit being satisfied about the lawfulness of the said compromise has rightly decreed the suit in terms of compromise which is no more amenable to challenge.

5. The Defendant No.5 in the written statement supported the Plaintiff’s case.

6. On the above rival pleadings, the Trial Court framed the following issues :-

"i. Whether the suit is maintainable

ii. Whether there is any cause of action to bring the suit

iii. Whether the suit is barred by the law of limitation

iv. Whether the suit is bad for non-joinder of necessary party

v. Whether the present suit is barred U/o.23 Rule-3(A) CPC

vi. Whether the judgment and decree passed in T.S No.515/2018 is illegal, fraudulent and not binding on the Plaintiff and Deft. No.5

vii. Whether the plaintiff has 1/3rd share over the suit land

viii. Whether Pradipta Kumar Sahoo, the deft. No.3 is the adopted son of Kalandi Sahoo

ix. Whether the deft. No.1 to 4 can be permanently restrained from dealing with the suit property by means of judgment and decree passed in T.S No.515/1998

x. Whether the plaintiff is entitled to any other relief or reliefs as prayed for

xi. To what other relief or reliefs, the Plaintiff is entitled to"

7. The Trial Court, first of all taking up issue no.(iv), the answer has been rendered in favour of the Plaintiff. Next answering issue no.vi, the Trial Court having examined the evidence on record and making an assessment of the same has returned the finding that the compromise decree in Title Suit No.515 of 1998 was obtained by practising fraud upon the Court. Proceeding to answer issue no.viii on a detail discussion of evidence and their evaluation, the Trial Court has found that the Defendant No.3 is not the adopted son of Kalandi and Mala. The other issue i.e. issue no.vii has been answered in favour of the Plaintiff holding her to be entitled to 1/3rd share over the properties of Kalandi and Mala and so also Defendant No.1 and 5 to 1/3rd each. Having held as above, at the end, coming to answer the issue with regard to the bar for entertainment of the suit in view of the provision contained under Order-23 Rule-3(A) of the Code, the Trial Court has taken a view that said provision stands as an impediment to decree the suit in declaring the compromise decree passed in T.S. No.515 of 1998 as void, inoperative and not binding on the parties. This answer has led the Trial Court to dismiss the suit.

8. The Plaintiff thus being non-suited carried the First Appeal. The Defendant No.1 to 4 appearing in the said Appeal while supporting the ultimate decision of the Trial Court in dismissing the suit by answering the issue no.(iii) and (v) against the entertainment of the suit questioned the findings of the Trial Court on all other issues which had been rendered against their case/claim.

The First Appellate Court on appreciation of evidence let in by the parties at its level in an independent manner, has concurred with the findings of the Trial Court on all the issues and has upset the finding of the Trial Court on the issue no.(iii) and (v). The view of the First Appellate Court is that the provision contained in Order-23 Rule-3(A) of the Code is not attracted in the facts and circumstances of the present case so as to stand as a bar for entertainment of the suit filed by the Plaintiff seeking the reliefs as aforestated. Therefore, now the present Second Appeals are at the instance of the aggrieved Defendant No.1 to 4.

9. The Appeals have been admitted to answer the following substantial questions of law:-

"i. Whether the First Appellate Court has committed error by overruling the decision of the Trial Court that the provision contained in Order-23 Rule-3(A) of the Code stands as a bar for the present suit

ii. Whether the First Appellate Court is right in holding the suit to be not barred by limitation

iii. Whether the findings of the Courts below on the question of adoption of Defendant No.3 is the outcome of perverse appreciation of evidence

iv. Whether in view of the partition already effected in Title Suit No.515 of 1998, in view of the proviso to section-6 of the Hindu Succession Act, further partition is permissible

v. Whether the finding of the First Appellate Court that the earlier decree passed on compromise in Title Suit No.515 of 1998 is vitiated by fraud, is not based on sound appreciation of the surrounding circumstances which emanate from the evidence"

10. Mr. S. S. Mohapatra, learned Counsel for the Appellants submitted that the view taken by the First Appellate Court overruling the view of the Trial Court that the present suit at the behest of the Plaintiff is maintainable cannot be sustained. According to him, the provision of Order-23 Rule-3(A) of the Code is very clear that once a suit is decreed in terms of compromise, the party aggrieved by the said compromise decree has the only option to move the said Court which had passed the compromise decree attacking the said compromise decree on all such grounds. He, therefore, submitted that the Plaintiff having not taken recourse to the said remedy available to her for the purpose, in a suit filed after 13 years of the said passing of the compromise decree, the First Appellate Court has committed grave error in granting the reliefs to the Plaintiff as prayed for. He further submitted that the suit being barred by law of limitation, the First Appellate Court ought to have held in that light. It was also submitted that the First Appellate Court having concurred with the findings of the Trial Court on the issue of adoption, permissibility of partition of the properties of Kalandi and Mala afresh and the compromise decree to have been vitiated by fraud are against the weight of evidence on record as also contrary to the settled principles of law.

11. Mr. H. N. Mohapatra, learned Counsel for the Respondent No.1 (Plaintiff) inviting our attention to the discussion of the evidence made by the Trial Court and the First Appellate Court submitted that there is absolutely no error in answering all the crucial factual issues on the claim of adoption of Defendant No.3 by Kalandi and Mala, in negating the same, practising of fraud in obtaining the compromise decree in the earlier suit etc. He further submitted that since in the earlier suit, the Plaintiff was not a party and when there was no cause of action for the Defendant No.1 to file the suit for partition of the properties of Kalandi and Mala who were then living, the First Appellate Court has rightly held that the provision contained in Order-23 Rule-3(A) of the Code cannot come to the rescue of Defendant No.1 to 4 to save the compromise decree passed in Title Suit No.515 of 1998.

12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing.

13. A careful reading to the judgments passed by the Courts below would show that it has been concurrently found that the Defendant No.3 is not the adopted son of Kalandi and Mala and the Defendant No.1 to 4 have failed to establish the said factum of adoption by leading clear, cogent and acceptable evidence with that higher degree/standard than what is required to prove such other facts under challenge. The main weapon to establish the said fact as it appears is the compromise decree wherein it is stated that the Defendant No.3 is the adopted son of Kalandi and Mala. In one line it can be said that when said factum of adoption is standing to the deprivation of the Plaintiff, who was not a party to the said suit, even if for a moment it is said that Kalandi and Mala had knowingly signed the compromise decree and admitted the said compromise in the Court, that alone would not bind the Plaintiff and the Plaintiff in subsequent suit when challenge the factum of adoption, the Defendant No.1 to 4 are under the legal obligation to discharge the heavy burden of proof in establishing the said factum of adoption of Defendant No.3 by Kalandi and Mala which they assert. The evidence in the present case are not at all found to be satisfactory and the Courts below have rightly so held that Defendant No.3 is not the adopted son of Kalandi and Mala.

14. In that view of the matter, the substantial questions of law as at (iii) and (iv) stand answered against the claim/case of Defendant No.1 to 4.

15. As regards the compromise decree passed in Title Suit No.515 of 1998, the least said the better. Undeniably, the Plaintiff being one of the daughters of Kalandi and Mala for the reasons best known to the Defendant No.3, who was the Plaintiff in the earlier suit, was not arraigned as one of the Defendants. When Kalandi and Mala were alive, the Defendant No.3 filed the said suit for partition and in that suit, he (present Defendant No.3) had pleaded that to have been adopted by Kalandi and Mala and as such he is the adopted son of Kalandi and Mala. A compromise was made in the said suit and in that partition Kalandi and Mala were totally excluded and robbed of everything and more particularly, in such a way that the very next moment after admitting the compromise and acceptance of the same by the Court, the old couple not only become landless but also homeless and driven to the street remaining completely at the mercy of the Defendant No.1 to 4. The Trial Court as well as the First Appellate Court have vividly discussed on all these features emerging from the evidence. This Court finds all the justifiable reasons to affirm such concurrent finding in further saying that there is no iota of perversity in the said finding.

16. Now coming to answer the issue no.(iii) and (v) rendered by the Trial Court against the Plaintiff, which has been overruled by the First Appellate Court, the undisputed fact to be taken note of is that the Plaintiff was not a party in the said suit i.e. Title Suit No.515 of 1998. The provision contained in Order-23 Rule-3(A) of the Code says that no suit shall lie to set aside compromise a decree on the ground that the compromise on which the decree is based was not lawful. The position of law has been well settled that a person, who is a party to the suit which has ended in compromise cannot challenge the very compromise decree on the ground of being not lawful by filing another suit and he/she can only question the said decree, which have been obtained by fraud and as such not lawful by filing a petition before the said Court, which passed the compromise decree. But the Plaintiff being not a party to the said suit when she came to know about the said compromise decree much later and her knowledge as to the passing of said compromise decree at any prior point of time when under no circumstance can be presumed, it is not permissible to say that she cannot question the same by filing a regular suit within a period of 3 years from the date of her knowledge as regards the passing of said compromise decree.

17. For all these aforesaid, the substantial question of law is answered in favour of the entertainment of the suit holding that the provision contained in Order-23 Rule-3(A) of the Code has no applicability to the facts and circumstances as obtained in the given case.

18. In the result, the Appeals stand dismissed with cost all throughout.