Patna High Court

Iswar Chander PrasadversusRam Prasad Sah

Decided: 21 January 2026
Disposal: ALLOWED
Bench: NAWNEET KUMAR PANDEY

Holding

The compromise decree was not binding on the minor appellants as they were not parties and it was obtained by fraud, so the title suit is maintainable and not barred by Order 23 Rule 3A, leading to the setting aside of the earlier decree.

Summary

The appellants, who were minors and co‑parceners at the time of a partition suit filed by their father, challenged a compromise decree dated 26‑05‑1982 that was entered into without their participation and allegedly under coercion. They filed a title suit in 1987 seeking to declare the compromise decree void, to set aside related gift and sale deeds, and to obtain possession of their share. The trial court dismissed the suit on the ground of Order 23 Rule 3A of the CPC, which bars fresh suits against a compromise decree. On appeal, the High Court held that the decree was not binding on the minors because they were not parties and the compromise was procured by fraud, rendering Order 23 Rule 3A inapplicable. Consequently, the decree and judgment of the trial court were set aside and the appeal was allowed, with the suit remitted for trial on merits. The court directed that the lower court proceed with the suit giving parties an opportunity to present evidence.

Issues considered

Is the suit as framed maintainable?
Do the plaintiffs have a cause of action for the suit?
Is the suit barred by limitation, waiver, estoppel or acquiescence?
Is the suit barred under the Specific Relief Act?
Is the suit defective due to improper parties?
Has the suit been correctly valued?
Is the court fee paid sufficient?
Is the suit barred by the principle of res judicata?
Is the compromise decree passed in the earlier partition suit illegal and fraudulent?
Is the deed in question illegal, fraudulent and without consideration?
Is the sale deed dated 09‑06‑1984 binding on the plaintiffs?
Is there unity of title and possession between the parties?
Are the plaintiffs entitled to preliminary recovery of possession and to what extent?
What other reliefs, if any, are the plaintiffs entitled to?

Legislation cited

Subjects

partition suit
compromise decree
fraud
minor parties
Order 23 Rule 3A
Specific Relief Act
res judicata
title suit
Civil Procedure
decree set aside

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.96 of 1990
======================================================
1. Iswar Chander Prasad Son of Shri Bhagwan Sah, Resident of Mohalla
Bhavdevpur, Ward No. - 14, P.S. Town - Sitamarhi, Dist. - Sitamarhi.
2. Radhe Shyam Prasad Son of Shri Bhagwan Sah, Resident of Mohalla
Bhavdevpur, Ward No. - 14, P.S. Town - Sitamarhi, Dist. - Sitamarhi.

... ... Appellant/s
Versus
2.1. Smt. Sunita Devi Wife of Janak Lal Sah and D/o Late Awadh Narayan Sah,
Resident of Mohalla Kaidrabad, Near Naka No. 2, P.S. Town and Dist.
Darbhanga.
2.2. Smt. Rekha Devi Wife of Ratan Lal Sah and D/o Late Awadh Narayan Sah,
Resident of Thatheri Bazar, Patna Dist. Patna.
2.3. Smt. Anju Devi Wife of Binod Kumar Tehri Ka Chauraha Town and P.S. ,
P.O. Mirzapur, Dist. Mirzapur, U.P.
3. Ram Shankar Sah Son of Awadh Narayan Sah, Resident of Village - Mohalla
- Purani Bazar, Ward No. - 8, Town P.S., Dist. - Sitamarhi.
4. Mahshanker Prasad Son of Awadh Narayan Sah, Resident of Village -
Mohalla - Purani Bazar, Ward No. - 8, Town P.S., Dist. - Sitamarhi.
5. Manoj Kumar Son of Awadh Narayan Sah, Resident of Village - Mohalla -
Purani Bazar, Ward No. - 8, Town P.S., Dist. - Sitamarhi.
6. Santosh Kumar Son of Awadh Narayan Sah, Resident of Village - Mohalla -
Purani Bazar, Ward No. - 8, Town P.S., Dist. - Sitamarhi.
7.1. Anita Devi W/o Ram Nath Prasad, D/o Sri Bhagwan Sah, R/o Guzri Bazar
Road, Main Road, Hajipur, Vaishali.
7.2. Shobha Devi W/o Kailash Prasad, D/o Sri Bhagwan Sah, R/o Mohalla -
Subhash Nagar, 3 no. - Kalali, District- Munger.
7.3. Juli Devi W/o Dilip Prasad, D/o Sri Bhagwan Sah, R/o Mohalla -
Khandakpar, P.O. and P.S. - Biharsherif, District- Nalanda.
8. Gauri Shankar Son of Bhagwan Sah, Resident of Mohalla - Bhavdevpur
Lakandai, Ward No. 14, P.S. Town and Distt. Sitamarhi.
11. Ram Pratap Rai Son of late Ram Chander Rai, Resident of Village - Punaura
1. Gaon, Post - Panaura West, P.S. Punaura, District - Sitamarhi - 843302.
11. Ram Dinesh Rai Son of late Ram Chander Rai, Resident of Village -
2. Punaura Gaon, Post - Panaura West, P.S. Punaura, District - Sitamarhi -
843302.
12. Smt. Kiran Devi W/o Sri Raghvendra Pd. Gupta, Resident of Ward No. - 14
Town P.S. Distt. Sitamarhi.
13. Shatrughan Singh Son of Chaturbhuj Prasad Singh, Resident of Village and
P.O. Rajopatti, P.S. and District- Sitamarhi.
Patna High Court FA No.96 of 1990 dt.21-01-2026
2/18

14. Ram Naresh Singh Son of Chaturbhuj Prasad Singh, Resident of Village and
P.O. Rajopatti, P.S. and District- Sitamarhi.

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anshay Bahadur Mathur
Mr.Ajay Kumar Mathur
For the Respondent/s : Mr.P.N.Jha, GP 2
For respondent nos. 2 to 6 and 10 Mr. Barun Kumar Choudhary
Mr. Ved Prakash Chandan
For respondent nos. 11.1 and 11.2 Mr. Santosh Kumar
======================================================
CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
Date : 21-01-2026

I have already heard the learned counsel for the

parties.

2. Being aggrieved and dissatisfied with the order

and decree dated 24.03.1990 passed by the learned sub-ordinate

Jude-IV, Sitamarhi in Title Suit No. 09/87, the appellants have

preferred this appeal.

3. Brief facts of the case is that the father of the

plaintiffs/appellants filed Partition Suit No. 11 of 1980 in the

court of Sub-Judge Sitamarhi for partition against his father and

brother. The father of the appellants/plaintiffs was respondent

no. 7 herein who died and was substituted by respondent nos.

7.1 to 7.3. The father and brother of respondent no. 7 have been

impleaded as respondent no. 1 and 2, respectively, in the present

appeal. In the partition suit filed by respondent no. 7, a

compromise petition was filed on 25-01-1982 and preliminary
Patna High Court FA No.96 of 1990 dt.21-01-2026
3/18

decree was drawn on 26-05-1982.

4. The plaintiffs/appellants filed Title Suit No. 09

of 1987 to declare the compromise decree dated 26-05-1982 in

Title Suit No. 11 of 1980 as illegal, void, and not binding on the

plaintiffs/appellants. They also sought relief for declaration that

the deed of gift dated 30-01-1984 executed by respondent No. 1

(grandfather of plaintiffs/appellants), in favour of Radha Devi,

respondent No. 10, (daughter-in-law of respondent No. 1). The

plaintiffs/appellants also made prayer for relief to declare the

suit dated 09-06-1984 as not binding upon the

plaintiffs/appellants. The said sale deed was executed by Awadh

Narain Shah (the brother of respondent No. 7), in favour of Ram

Chandra Rai (respondent No. 11). The plaintiffs/appellants’

averment is that they were not party to Title Suit No. 11 of 1980,

and the compromise decree is behind their back. They were

minors at that time, and his father, plaintiff of Title Suit No. 11

of 1980, put his LTI on the compromise petition under the

coercion of his father and brother, respondent Nos. 1 and 2.

5. The defendants appeared and filed their written

statements. Respondent Nos. 1, 5, and 10 filed their written

statements, denying the averments of the plaintiffs. These

opposite parties/defendants averred in their written statement
Patna High Court FA No.96 of 1990 dt.21-01-2026
4/18

that the plaintiffs and their father (respondent No.7) are in

collusion and with intention to get the decree of a competent

civil court null and void, they have filed the present suit.

respondent No.7, father of the plaintiffs/appellants also filed his

separate written statement and he supported the claim of the

plaintiffs/appellants.

6. Respondent No. 7, father of the

plaintiffs/appellants, also filed his separate written statement

and he supported the claim of the plaintiffs/appellants.

7. The following issues were framed on the basis of

pleadings of the parties:-

1. Is the suit as framed
maintainable?
2. Have the plaintiffs got cause
of action for the suit?
3. Is the suit barred by law of
limitation, waiver, estoppel and
acquaintance?
4. Is the suit barred under the
provisions of specific relief Act?
5. Is the suit is bad for defect of
parties?
6. Has the suit correctly been
valued?
7. Is the court fee paid sufficient?
8. Is the suit is barred by the
Patna High Court FA No.96 of 1990 dt.21-01-2026
5/18

principal of res judicata?
9. Is the compromise decree
passed in T.S.No.11/80 illegal and
fraudulent?
10. Is the deed in question illegal,
fraudulent and without consideration?
11. Is the sale deed dated 9.6.1984
executed by Avadh Narain Shah in favour
of Ramchandra Sah binding on the
plaintiffs?
12. Is there any unity of title and
possession between the parties in
recovery of suit land?
13. Are the plaintiffs entitled for a
preliminary recovery of possession, if so
to what extent of their share?
14. To what other relief or reliefs are the
plaintiffs entitled for entitled for?

8. On 11-05-1989, the defendants filed a petition,

raising the preliminary issue that the suit is barred by the

provision of Order XXIII, Rule 3A of the Code of Civil

Procedure 1908 (hereinafter to be referred to as ‘the Code’).

This provision says that no fresh suit shall lie against the

compromise decree.

9. The learned court below decided this

preliminary issue and came to the conclusion that the present
Patna High Court FA No.96 of 1990 dt.21-01-2026
6/18

suit was barred under the provision of Order 23, Rule 3A of the

Code and accordingly dismissed the suit filed by the

plaintiffs/appellants.

10. The learned counsel for the

plaintiffs/appellants has submitted that the appellants, who are

co-parceners were minors at the time of the decree dated 26-

05-1982 passed in Title Suit No. 11 of 1980 and they were

neither impleaded as party, nor their interest was taken care of

by his father (respondent no. 7). They were co-parceners and

were necessary parties to the suit. The father of the

plaintiffs/appellants, according to the averments of the

plaintiffs, was under coercion of respondent Nos. 1 and 2, and

in their coercion/pressure, he put his LTI on the so-called

compromise petition. The learned counsel has submitted

further that in various judicial pronouncements, it has been

held that, if a compromise decree is fraudulent, a fresh suit is

not barred under Order XXIII, Rule 3A of the Code. He has

also submitted that the compromise petition was not prepared

in the court, rather it was prepared before the Sarpanch and

thereafter it was filed in the court and the Court passed decree

on the basis of compromise. The learned counsel for the

appellants has relied upon the following decisions in support of
Patna High Court FA No.96 of 1990 dt.21-01-2026
7/18

his submissions.

1. Gosto Behari Pramanik vs. Sm. Malati
Sen and others (AIR 1985 Calcutta 379).
2. S.G. Thimmappa vs. T. Anantha and
others (AIR 1986 Karnataka, page 1).
3. Mam Raj vs. Smt. Sabiri Devi and
others (AIR 1999 Punjab and Haryana
page 96).
4. Smt. Sukhrani (dead) by L.R’s. and
others vs. Hari Shanker and others (AIR
1979 Supreme Court page 1436).
5. Mahabir Mahton and others vs.
Chandeshwar Mahton and others (AIR
1985 Patna page 251),
6. Smt. Anita Vs. R Rambilas (AIR 2003
Andhra Pradesh 32)”

11. The learned counsel for the contesting opposite

parties has submitted that father of the plaintiffs/appellants was

himself the plaintiff of Partition Suit No. 11 of 1980. On the

basis of consent of the parties, the compromise decree was

drawn up. Respondent No. 7, put his LTI without any

coercion, threat, or inducement/influence. He conceded to the

terms and conditions of the compromise, after considering the

recitals thereof and thereafter the compromise decree was

passed. Respondent No. 7 never filed any suit to declare the

said decree as null and void. After near about 5-6 years of
Patna High Court FA No.96 of 1990 dt.21-01-2026
8/18

passing of the compromise decree, the sons of O.P. No. 7

brought the present suit. According to the provisions of Order

XXIII, Rule 3A, no fresh suit can be filed to declare the

compromise decree as null and void and not binding on the

parties. During the lifetime of respondent No. 7, his sons

are/were not necessary parties to the suit, and it was the reason

that they were not included as parties in the earlier suit for

partition of the properties. The learned counsel has submitted

further that the judgment and decree of the learned court below

is according to the mandate of Order XXIII, Rule 3A of the

Code.

12. In support of his submission, the learned

counsel for the contesting opposite party has relied upon a

judgment of Hon’ble Supreme Court in case of M/s Silver

Screen Enterprises vs. Devki Nandan Nagpal (AIR 1970 S.C.

669).

13. I have perused the impugned judgment of the

trial court and carefully perused the lower court records I have

also given my thoughtful consideration to the rival submissions

advanced on behalf of the parties.

14.The provision of Order XXIII, Rule 3A is

being extracted hereinbelow:-
Patna High Court FA No.96 of 1990 dt.21-01-2026
9/18

3A. Bar to suit.- No suit shall lie to
set aside a decree on the ground that
the compromise on which the decree
is based was not lawful.”

15. Now, I discuss the judicial pronouncements

cited by the learned counsel for the appellants.

16. In case of Gosto Behari Pramanik vs. Sm.

Malati Sen and others (AIR 1985 Calcutta 379), the Hon’ble

Supreme Court held that the compromise decree can only be set

aside in a separate suit or proceedings on the ground that

consent was obtained by fraud or coercion, and such consent of

compromise decree resulted in serious and substantial justice.

The relevant portion of the judgment (para-12) is being

extracted hereinbelow:-

“It is well known that the consent or
compromise decree can only be set aside in
separate suit or proceedings on the ground
that the consent was obtained by fraud or
coercion, and such consent or compromise
decree resulted in serious and substantial
injustice.”

17. In case of S.G. Thimmappa vs. T. Anantha and

others (AIR 1986 Karnataka, page 1), the Hon’ble Karnataka

High Court held that the compromise decree can be challenged
Patna High Court FA No.96 of 1990 dt.21-01-2026
10/18

on the grounds of fraud, undue influence and coercion.

18. The facts of the case of Mam Raj vs. Smt. Sabiri

Devi and others (AIR 1999 Punjab and Haryana page 96) are

that the plaintiff, Mam Raj, filed a suit for declaration of his

title and his 4/9th share of the land in dispute. Mam Raj claimed

himself to be adopted son of late Kirpal Singh. Kirpal Singh

died on 8th April, 1991. Smt. Sabiri Devi, widow of Kirpal

Singh, claimed the land in dispute on the basis of will deed

dated 13.03.1981 in her favour executed by her husband

Kripal Singh. Smt. Sabiri Devi was an old and illiterate lady

of 80 years and not keeping good health. She stated that taking

advantage of her physical condition, Mam Raj had played fraud

and had got some documents signed from her. She signed the

said documents on the plea that the property was being given to

her and her children and she was subjected to a fraud as even

the counsel, who allegedly engaged on her behalf, Shri Bir r

Singh, Advocate, in fact, was working with the counsel for the

plaintiff. When the suit was fixed for argument on 21.04.1993,

the defendant Smt. Sabiri Devi filed an application under

Order 18 Rule 17-A of the Code of Civil Procedure, praying

therein that her statement be recorded on the basis of above

facts and that previous statement before the Court was given
Patna High Court FA No.96 of 1990 dt.21-01-2026
11/18

under the pressure of the plaintiff. That application was

allowed by the trial court. The revision application preferred by

the plaintiff, Mam Raj, was rejected by the Hon’ble High Court

of Punjab and Haryana. It has been held that compromise was

arrived at by playing fraud upon her, and she is entitled to lead

additional evidence.

19. The case of Smt. Sukhrani (dead) by L.R’s. and

others vs. Hari Shanker and others (AIR 1979 Supreme

Court page 1436) relates to the principles of res judicata. It

does not relate to a bar created by Order XXIII Rule 3-A of the

CPC if the compromise has been arrived between the parties

in the earlier suit.

XXX XXX

20. In case of Mahabir Mahton and others vs.

Chandeshwar Mahton and others (AIR 1985 Patna page

251), the minors were already party to the suit but the major

party only compromised the case. The minors were defendant

nos. 14 to 16, (minor sons of Mahabir Mahton). In that case,

after concluding the evidences of both the parties, the suit was

fixed for argument and date was fixed for 3-8-1962. The case

was adjourned for 4-8-1962 for further argument. On the date

of argument i.e. on 4-8-1962, a compromise was recorded
Patna High Court FA No.96 of 1990 dt.21-01-2026
12/18

between the major parties and the suit was decreed. After the

compromise was recorded, on the same day, a petition was

filed on behalf of the defendants to recall the order recording

the compromise, and the learned trial court recalled the order,

which was passed on the basis of compromise. That order was

challenged before this Court and this Court after setting aside

the order, recalling the compromise, sent back the matter to the

trial court for fresh consideration of the applications filed by

the defendants with certain directions. The direction of this

court in that case is as follows:-

“I must however state that the learned
Munsif will give effect to the
compromise if he finds that no fraud
was practised on the court. He will have
jurisdiction to recall his previous order
only if he finds that the compromise was
recorded as a result of fraud on the
court by either party.”

21. When the matter was remitted back to the trial

court, a petition dated 1-6-1967 was filed on behalf of the

minor defendants, i.e. defendant nos. 14 to 16 (minor sons of

Mahabir Mahton), for setting aside the compromise and it was

mentioned in the petition filed by the minor defendants that the

provision of Order 32, Rule 7 of the Code were not complied
Patna High Court FA No.96 of 1990 dt.21-01-2026
13/18

with and neither these minors, nor their guardian, had

compromised the suit, nor they were represented in the court on

04.08.1962, on the date when compromise decree was passed.

The co-ordinate Bench of this Court held as follows:-

“……...The plaintiffs also suppressed the
fact from the court that there were minors
in the suit and that the compromise was
only recorded between the major
plaintiffs and major defendants. I hold
that as the plaintiffs were not absolved of
their own responsibility/duty and as they
deliberately suppressed this fact from the
court, it was a fraud on the court. If the
court would have been appraised of this
fact, the court would not have recorded
the compromise. Thus the finding that
there was no fraud upon the court is not
binding in the second appeal, as it is
erroneous in law. The court of appeal
below, it seems, agreed with the trial
court that the defendants were equally
responsible for the fraud. This itself
shows that a fraud was, in fact,
committed and it were also the plaintiffs
who played fraud with the court. Only
because the defendants were equally
responsible for the fraud, it could not be
held that no fraud was committed.”
Patna High Court FA No.96 of 1990 dt.21-01-2026
14/18

22. The case of Smt. Anita Vs. R Rambilas (AIR

2003 Andhra Pradesh 32) relates to recall a decree of

dissolution of marriage on the basis of consent of husband and

wife. The husband and wife jointly filed Suit No. 259 of 1998

under Section 13(B) of the Hindu Marriage Act for dissolution

of their marriage on the basis of their consent. On 14.06.1994,

the learned trial Judge recorded the statements of husband and

wife on oath and finally dissolved the marriage of the parties on

the basis of mutual consent, under Section 13B of the Hindu

Marriage Act and the Suit No. 259 of 1998 was disposed of.

The wife, after 6 months of decree, filed I.A. No. 585 of 1999

for recalling the decree on the grounds that her consent was

obtained by her husband under threat, undue influence and

coercion. She was examined on oath as PW-1 and six more

witnesses were examined on her behalf. She also filed

documents, Ext. A-1 to A-36 and on hearing the matter on

merits, the learned Judge dismissed her I.A. on 14.03.2002.

Being dissatisfied with that order, she filed appeal in

Andhra Pradesh High Court. The Andhra Pradesh High Court

set aside the order of the trial court, whereby interlocutory

application of wife was dismissed. The High Court came to the

conclusion that the joint petitions signed by the wife and her
Patna High Court FA No.96 of 1990 dt.21-01-2026
15/18

husband was under coercion and threat. Para- 24 of the decision

is being referred herein below:-

“By looking to the conduct of the
wife-appellant herein, we are of the
considered view that the theory put
forward by the wife-appellant herein
that she was made to sign the joint
petition under coercion and threat is a
totally concocted story. Therefore, on
facts also we are of the considered
view that the wife-appellant herein
was not able to prove the fact that the
husband-respondent herein had
played fraud on her by obtaining the
signature for divorce by mutual
consent.”

23. In case of M/s Silver Screen Enterprises vs.

Devki Nandan Nagpal (AIR 1970 S.C. 669), the Hon’ble

Supreme Court has held as follows:-

“....Once a dispute is validly settled
out of Court, it is open to a party to
a litigation to move the Court to
pass a decree in accordance with
the compromise. Rule 3 of Order 23,
of Code of Civil Procedure provides
that where it is proved to the
satisfaction of the Court that a suit
Patna High Court FA No.96 of 1990 dt.21-01-2026
16/18

(which expression includes an
appeal) has been settled wholly or
in part by any lawful agreement, the
Court shall order such agreement,
compromise or satisfaction to be
recorded and shall pass a decree in
accordance therewith so far as it
relates to that suit. This is a
mandatory provision. It is somewhat
surprising that the High Court
should have felt itself helpless under
the circumstances of the case to do
justice between the parties. Clause
12 of the compromise provides that
if the respondent does not carry out
the terms of the compromise, he
shall be held responsible for all the
losses that the appellant may suffer
because of its breach. This clause
does not preclude the appellant from
putting forward the compromise and
asking the Court to dismiss the
appeal in accordance with its terms.
Both the factum and the validity of
the compromise are not in dispute.
Hence the appellate court was
bound to accept the same. That
Court acted in accordance with law
in dismissing the appeal. Hence the
High Court was clearly wrong in
Patna High Court FA No.96 of 1990 dt.21-01-2026
17/18

interfering with the judgment of the
appellate court.
4. In the result, this appeal is
allowed and the decree and
judgment of the High Court are set
aside and that of the appellate
Court restored. The respondent
shall pay the costs of the appellant
in the High Court and in this
Court. Appeal allowed.”

24. So far as the present matter is concerned, the

appellants were admittedly minor at the time of pendency of

Partition Suit No. 11 of 1980 filed by their father. The appellants

were co-parceners and they were necessary parties to that suit.

But without impleading them, the major members of the family

entered into the so-called compromise that too not recorded in

the court, rather before the punches, so the decree dated

25.01.1982 passed in Partition Suit No. 11 of 1980 is not

binding on the appellants.

25. The compromise decree was not signed in

court, rather it was signed and prepared before the punches and

later on produced before the court on which the decree was

passed. Since the said decree is not binding on the appellants,

the Title Suit No. 09 of 1987 filed by the plaintiffs/appellants is
Patna High Court FA No.96 of 1990 dt.21-01-2026
18/18

maintainable and it is not barred under Order 23 Rule 3A of the

Code.

26. On the basis of the above noted observations,

the order and decree dated 24.03.1990 passed in Title Suit No.

09 of 1987 is set aside.

27. Consequently, the appeal is allowed.

32. The learned trial court is directed to decide the suit on merits

after giving proper opportunities to the parties to lead oral and

documentary evidences.

28. The office is directed to remit back the LCR to

the court below at once.

(Nawneet Kumar Pandey, J)

HR/-
AFR/NAFR NAFR
CAV DATE 12.01.2026
Uploading Date 22. 01.2026
Transmission Date

Continue reading with your account

Checking your session…