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2016 (2) TMI 1380 - PUNJAB AND HARYANA HIGH COURTMaintainability of suit for declaration and permanent injunction - suit for declaration of possession of land - time limitation - compromise decree required compulsory registration or not - HELD THAT:- In the Instant case, the plaintiff has challenged the resultant decree based on compromise on the ground that she was ailing at the relevant time and was not in a position to give free will for execution of said compromise which ultimately resulted into decree. The ailment with which the plaintiff was suffering at the relevant time was stated to be Epilepsy - In order to substantiate the plea of ailment, the plaintiff got examined Dr. Surjit Singh PW-4, who stated that Jagtar Kaur was suffering from Epilepsy from the years 1976 to 1982 and she got treatment from him upto the year 1984. The deposition of Doctor was not in the context of proving that she was confined on account of Epilepsy and was not in a position to re-capitulate the facts and there was a loss of memory or she was totally incapacitated on account of such ailment in terms of faculty of mind and physical movements. In view of bar created under Order 23 Rule 3-A CPC, no suit shall lie to set aside the decree on the ground that compromise on which the suit was based was not lawful. At the most the plaintiff could have filed application in the said suit as all the issues are required to be decided in the same suit. Since particulars of fraud have not been pleaded and proved in the case, therefore, the suit was not maintainable in view of bar created under Order 23 Rule 3-A CPC - After the execution of decree the plaintiff cannot presumed to be co-sharer since the decree was based on compromise on account of family settlement. Plaintiff is Bua of the defendants. She was married long back and was laying in her matrimonial house. The decree based on compromise pointed out semblance of interest and was not required to be compulsorily registered as the decree recognized pre-existing right of the defendants and it cannot be said that right was created in favour of defendants for the first time. Both the questions of law are to be answered in favour of the appellants to hold that subsequent suit is barred in terms of Order 23 Rule 3-A CPC and subsequent decree dated 06.10.1979 was not required to be compulsorily registered. Since the civil Court decree dated 06.10.1979 was not fraudulent, therefore, filing of suit on 26.08.1983 was patently barred by limitation. Taking into consideration the facts and circumstances of the case, this Court cannot subscribe the view taken by the lower Appellate Court inasmuch as that the decree based on compromise was legally required to be questioned in the same suit and the subsequent suit is barred in terms of Order 23 Rule 3-A CPC. The plaintiff cannot be held to be co-sharer in the land and suit based on title is within limitation. Appeal allowed.
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