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Judgment
The present revision application is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), challenging the order dated 12/12/2012 passed by the 7th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur, in Regular Civil Suit No.215 of 2012, whereby the Trial Court has rejected the impugned application filed below Exhibit 13 by the petitioner herein under Order VII Rule 11 of the CPC.
The petitioner herein is the original defendant No.1, whereas respondent No.1 is the original plaintiff, respondent Nos.2 and 3 are the original defendants Nos.2 and 3. Respondents Nos.4 to 12 are newly added parties in the revision application who appear to be subsequent purchasers of the suit properties (hereinafter referred to as “the subsequent purchasers”).
For the sake of convenience, the parties will be referred to as per their original positions in the suit.
SHORT FACTS OF THE CASE :
The Regular Civil Suit No.215 of 2012 was instituted by the minor Abhishek through his mother and natural guardian seeking a declaration that the consent decree dated 25/09/1996 passed in Regular Civil Suit No.505 of 1996 whereby the suit properties partitioned as per consent terms is void and be set aside, as it is against the interest of the plaintiff. Consequently, it also prayed that all transactions whatsoever like sale, gift, lease and/or alienation of property in whatever manner executed by the defendants be quashed and set aside. The plaintiff also sought for the partition of the assets and to bifurcate the share of the plaintiff by metes and bounds.
Defendants Nos.1 and 2 happen to be uncles of the plaintiff, whereas defendant No.3 happens to be the plaintiff’s father. No other family members joined in the suit. Since, there is a stay of suit proceeding granted by this Court, the subsequent purchasers who bought some of the suit properties and plaintiff’s given his nod to such transactions, they are allowed to be joined in this revision.
The plaintiff was born on 03/04/1995 and has averred in the plaint that as per Hindu Law, by birth, the plaintiff has a right in the family properties, which are inherited by the defendants from their father, who happens to be his grandfather. According to the plaintiff, a consent decree passed on 25/09/1996 by the trial Court in Regular Civil Suit No.505 of 1996 wherein defendants were parties to the suit with his grandmother, entered into a compromise and accordingly distributed the ancestral properties, which caused serious prejudice to the interest of the plaintiff. Since the interest of the plaintiff was not protected by entering into the compromise between the defendants upon which the aforesaid consent decree was passed, he, being a minor, through his natural guardian – mother, filed the suit.
It appears from the documents annexed the plaint that the registered partition executed between one Fuliba, wife of Lumbaji Kaniram (great-grandmother of the plaintiff) and Premaji Lumbaji (grandfather of the plaintiff) in relation to joint family property of plaintiff’s great-grandfather. Thereafter, one another registered partition deed was also executed between the grandfather, grandmother, father and uncle of the plaintiff on 26/03/1979 in relation to the suit properties. At that point of time, the parties to that partition deed had agreed to divide the suit properties which was joint family properties. Thereafter, once again an oral partition took place between the defendants on 01/10/1990 which was also reduced into writing in the form of a family settlement agreement on 05/07/1993. Thus, before the birth of the plaintiff, the suit properties were already partitioned between the defendants and thereafter, they no longer remained HUF properties.
It seems that one Regular Civil Suit No.505 of 1996 came to be filed by defendant No.2 along with his mother, i.e., the grandmother of the plaintiff, namely, Jamnaben, against defendant No.1, defendant No.3 and one Amrutlal Premajibhai Rami. The aforesaid suit was filed seeking a declaration and injunction that the suit properties were not partitioned and it’s a joint family property wherein the plaintiffs of that suit had a right, title and interest. It appears that there was a compromise in the form of a family settlement agreement entered into between the parties and upon such settlement filed in the aforesaid suit, a consent decree dated 25/09/1996 came to be passed by the Court. It may be mentioned that the plaintiff was already born when the consent decree was passed. After about 16 years of passing of the aforesaid consent decree, the suit in question came to be filed by the plaintiff challenging the consent decree and seeking partition of the suit property by metes and bounds.
Upon entering an appearance, defendant No.1 filed an impugned application below Exhibit 13 under Order VII Rule 11 of the CPC on 20/06/2012, contending inter alia that as per Order XXIII Rule 3A of the CPC, no suit can be filed to challenge the consent decree. It was also contended that since there was a partition of the suit properties way back in 1979, i.e., prior to the birth of the plaintiff, the suit properties no longer remained as HUF properties and ignoring the provisions of law, the suit is filed at the behest of original defendant No.3. The plaintiff appears to have filed his reply objecting to the impugned application.
After hearing the parties, the Trial Court vide its impugned order held that whether a consent decree can be challenged by way of a suit is a matter of evidence, inasmuch as which partition was legal can only be ascertained by permitting the parties to lead evidence. According to the Trial Court, the issues raised by the defendant No.1 in the impugned application are triable issues and they cannot be decided at the stage of Order VII Rule 11 of the CPC. Hence, the Trial Court has rejected the impugned application.
Heard Mr.Anshin Desai, learned Senior Counsel assisted by Mr. Jinesh H. Kapadia and Mr. Dipum S. Rami, learned advocates for the petitioner, Mr. Mehul Shah, learned Senior Counsel and Mr. Unmesh Shukla, learned Senior Counsels assisted by Mr.D.K.Trivedi, learned advocate for respondent No.1, Mr.Rashesh Sanjanwala, learned Senior Counsel assisted by Mr.Prerak P. Oza, learned advocate for respondent Nos.2.1 to 2.3 and Ms.Trusha Patel, learned Senior Advocate assisted by Mr.Tattvam Patel, learned advocate for the newly added respondents, at length.
SUBMISSIONS OF PETITIONER/DEFENDANT NO.1:
Mr.Anshin Desai, learned Senior Advocate assisted by Mr.Jinesh Kapadia, learned advocate for the petitioner, would submit that the Trial Court has committed a jurisdictional error by rejecting the impugned application filed under Order VII Rule 11 of the CPC by observing that the issues raised by defendant No.1 are triable issues and the parties are required to lead evidence to prove such issues. It is submitted that as per the settled position of law, no suit can be filed to challenge the consent decree.
It is submitted that there is an express bar under Order XXIII Rule 3A of the CPC to file a suit to set aside the consent decree. It is further submitted that when there is an express bar under the law, the suit challenging the consent decree requires to be rejected at the threshold. It is also submitted that according to the plaintiff, the decree sought to be challenged is a consent decree and in the absence of any such dispute, the Trial Court could not have rejected the impugned application.
Mr. Desai, learned Senior Counsel, would further submit that as per the plain reading of the plaint, there is no right to sue available to the plaintiff to ask for partition of the suit properties. It is submitted that as per the plaint, the defendants have inherited the suit property from their father (grandfather of the plaintiff); in such circumstances, the suit property inherited by the defendants from their father became the self-acquired properties of the defendants. It is further submitted that as per settled law, the grandson has no right to claim any share in the property of his grandfather died intestate when his father is alive.
Mr.Desai, learned Senior Counsel, would further submit that the Trial Court has completely lost sight of Sections 6 and 8 of the Hindu Succession Act, 1956, while adjudicating the impugned application, which ultimately resulted in a miscarriage of justice. It is submitted that there is no foundational fact pleaded by the plaintiff as to how the suit properties can be said to be ancestral properties once they were already partitioned in the year 1979, i.e., before his birth; in the absence of such material particulars in the pleadings of the plaintiff, as they are necessary as per Order VI Rule 4 of the CPC, the plaint ought to have been rejected by the Trial Court.
Mr.Desai, learned Senior Counsel, would further submit that the filing of the suit by the son of defendant No.3 is nothing but an abuse of the process of law, inasmuch as defendant No.3 was a party to the aforesaid consent decree as well as the registered partition deed executed in the year 1979. It is also submitted that the certified copy of the compromise purshis and the order passed thereon by the Trial Court on 25/09/1996 in the Regular Civil Suit No.505 of 1996, produced by the plaintiff, appears to have been obtained by his father-defendant No.3. This shows that the defendant No.3 with the help of his minor son, instituted the suit.
To buttress his arguments, Mr.Desai, learned Senior Counsel, has relied upon the following authorities:
Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others – (1986) 3 SCC 567.
Uttam vs. Saubhag Singh and others – (2016) 4 SCC 68.
Judgment dated 16/06/2025 rendered by Coordinate Bench of this Court in the case of Nachiketa Kantibhai Patel and others vs. Kantibhai Ishwarbhai Patel and others, being Second Appeal No.42 of 2025.
Order dated 18/01/2016 passed by High Court of Delhi in the case of Surender Kumar vs. Dhani Ram, being C.S.(O.S.) No.1737 of 2012.
Order dated 20.08.2026 passed by High Court of Rajasthan in the case of Devaram S/o. Khetaram vs. Khetaram S/o. Chutararam and others, being S.B. Civil First Appeal No.221 of 2026.
Order dated 12/02/2021 passed by High Court of Delhi in the case of Master Ansh Kapoor vs. K.B.Kapur, being C.S.(O.S.) No.3438 of 2014.
Remisetty Venkatanna and another vs. Nasyam Jamal Saheb and others – (2023) SCC Online SC 521.
R. Rajanna vs. S.R.Venkataswamy and others – (2014) 15 SCC 471.
Triloki Nath Singh vs. Anirudh Singh (D.) Thr. Lrs. & Ors. - (2020) 6 SCC 629.
M/s.Surya Developers and Promoters vs. N. Sailesh Prasad and others – (2022) 5 SCC 736.
Sakina Sultanali Sunesara (Momin) & Ors. Vs. Shia Imami Ismaili Momin Jamat Samaj & Ors. - 2020 (1) GLR 586.
C.S.Ramaswamy vs. V.K.Senthil and others – AIR 2022 SC 4724.
Dahiben vs. Arvindbhai Kalyanjibhai Bhanusali – (2020) 7 SCC 366.
Canara Bank vs. P. Selathal and others – (2020) 13 SCC 143.
By making the above submissions, Mr.Desai, learned Senior Counsel, would request this Court to allow the present revision application.
SUBMISSIONS OF RESPONDENT NOS. 2.1 TO 2.3 :
Mr.Sanjanwala, learned Senior Advocate, assisted by Mr.Oza, learned advocate for respondent Nos.2.1 to 2.3 (original defendant Nos.2.1 to 2.3), has adopted the arguments canvassed by Mr.Desai, learned Senior Counsel as they are supporting respondents.
SUBMISSIONS OF RESPONDENT NOS. 4 TO 12 :
Likewise, Ms.Trusha Patel, learned Senior Counsel with Mr.Tattvam Patel, learned advocate appearing for the respective respondents, has also adopted the arguments of Mr.Desai, learned Senior Counsel, as they are also supporting respondents.
SUBMISSIONS OF RESPONDENT NO.1-ORIGINAL PLAINTIFF :
Per contra, Mr.Mehul S. Shah, learned Senior Counsel and Mr.Unmesh Shukla, learned Senior Counsel, assisted by Mr.D.K.Trivedi, learned advocate for respondent No.1 -original plaintiff, have opposed the present revision application, contending inter alia that considering the issues raised by the defendant No.1 in the impugned application, such issues cannot be gone into at the stage of Order VII Rule 11 of the CPC.
Mr. Shah, learned Senior Counsel, would submit that the Trial Court has not committed any manifest error and/or any jurisdictional error while adjudicating the application which was filed under Order VII Rule 11 of the CPC. It is submitted that the suit at the instance of minor Abhishek, who happens to be the son of defendant No.3 and nephew of defendants Nos.1 and 2, is maintainable in law.
It is submitted that the bar against the filing of a suit to set aside the consent decree as per Order XXIII Rule 3A of the CPC would not apply to a third party, who is not a party to the consent decree. It is a settled position of law that in a consent decree in which any right of a third party has been jeopardized, that party has a right to challenge the consent decree by way of a suit and such suit is not hit by Order XXIII Rule 3A of the CPC.
Mr.Shah, learned Senior Counsel, would emphasize that as per the Full Bench decision of this Court in Sakina Sultanali Sunesara (Momin) & Ors. (supra), which was confirmed by the Hon'ble Apex Court, wherein it was held that the bar under Order XXIII Rule 3A of the CPC is not applicable to a third party, whereby he can maintain the suit. He would also submit that subsequent to the decision of the Full Bench, the Hon'ble Apex Court in its decision in the case of Chitralekha Builders and another vs. GIC Employees Sonal Vihar Co-operative Housing Society Limited and another - (2022) 19 SCC 252, also reiterated this position of law.
Mr.Shah, learned Senior Counsel, would further submit that as per the meaning reading of the plaint and the documents submitted along with it, would show that the suit properties are ancestral – joint family properties and as per Hindu Law, the plaintiff, being the grandson of Premaji Lumbaji, by birth having interest in it. It is submitted that plaintiff’s grandfather received the suit property from his father (plaintiff’s great-grandfather), the plaintiff has a direct interest in the suit properties which could not have been partitioned by way of a consent decree without joining the plaintiff. It is further submitted that as per the settled position of law, even if there was a partition effected between the family members of an HUF which consisted of a minor, if it is proved to be unjust and unfair and is detrimental to the interest of the minor, in such circumstances such partition can certainly be reopened irrespective of the length of time when the partition took place. In support of his submission, Mr.Shah, learned Senior Counsel has placed reliance upon the decision of Hon’ble Apex Court in the case of Ratnam Chettiar and others vs. S.M.Kuppuswami Chettiar and others - (1976) 1 SCC 214.
Mr.Shah, learned Senior Counsel, would also submit that as per the settled position of law, once the plaint discloses a cause of action, it is a question of fact which has to be gathered on the basis of averments made in the plaint in its entirety and such averments ought to be considered correct, then impugned application was correctly rejected by the trial Court. It is further submitted that so long as the plaint discloses cause of action which requires determination by the Court after trial, the Court cannot reject the plaint merely on the premise that at the end of the trial the plaintiff may not succeed in the suit. To emphasize his submission, Mr.Shah, learned Senior Counsel, has placed reliance upon the decision of the Hon'ble Apex Court in the case of Mayar (H.K.) Ltd. And others vs. Owners & Parties, Vessel M.V.Fortune Express and others - (2006) 3 SCC 100.
Mr. Shah, learned Senior Counsel, would finally submit that in totality of the facts and circumstances of the case, not only does the plaint disclose a cause of action, but the documents which are placed on record along with the plaint clearly show that the suit properties are ancestral properties and as per Section 6 of the Hindu Succession Act, 1956, by birth, the plaintiff, being a grandson of Premaji Lumbaji, who inherited the suit property from his predecessor, is entitled to have a share in the suit property and therefore, the plaintiff, being a male member of the HUF, is entitled to have his share and seek partition of the suit property. It is submitted that there are disputed questions of fact and law involved in the matter and considering all such aspects, the Trial Court has correctly rejected the impugned application.
Making the above submissions, learned Senior Counsels appearing for the plaintiff, would request this Court to dismiss this revision application.
No other or further submissions have been advanced by the learned advocates for the respective parties.
ANALYSIS & REASONS:
The facts which are enumerated at the outset are not in dispute. The plaintiff happens to be the son of original defendant No.3 and nephew of defendants Nos.1 and 2. As per the plaint, the family properties - suit properties are ancestral immovable properties inherited by the defendants from plaintiff’s grandfather, i.e., Premaji Lumbaji. Premji Lumbaji, plaintiff’s grandfather died in the year 1981 and prior thereto, there was a registered partition deed executed by him with his legal heirs, i.e., the defendants as well as his wife (grandmother of the plaintiff) in relation to the suit properties. Nonetheless, the Regular Civil Suit No.505 of 1996 came to be filed by the original defendant No.2 with the grandmother of the plaintiff against the rest of the defendants and one uncle of the plaintiff, namely Amrutlal Premaji Rami, seeking a declaration and injunction qua the suit properties.
There was a compromise entered into between the parties which was accepted by the Trial Court, whereby the consent decree dated 25/09/1996 came to be passed. There appears to be a family settlement/partition agreement in the presence of arbitrator between the parties to that suit, which was referred to in the compromise purshis submitted before the Court and upon which the aforesaid consent decree came to be passed. It is not in dispute that when the consent decree was passed, the plaintiff was already born on 03/04/1995 and he was not joined in that suit. After about 16 years from the passing of the aforesaid consent decree, the plaintiff, who happens to be the minor son of defendant No.3, through his mother instituted Civil Suit No.215 of 2012 in question wherein he sought the following reliefs:
“(A)To declare consent Decree dated 25/9/1996 passed in Regular Civil Suit No. 505 of 1996 on the basis of partition of properties as per consent terms, as void and be set aside being against interest of plaintiff and further be pleased to quash and set aside all consequential transaction whatsoever like Sale, of Gift, Lease and/or alienation of properties in whatever manner.
(B)Cost of this suit be granted.
(C)The Hon'ble Court be pleased to pass appropriate order for just and proper partition of the assets and bifurcate share of the plaintiff by meant and bound.”
Thus, by way of the suit in question, the plaintiff sought to challenge the consent decree dated 25/09/1996 passed by the Civil Court in Regular Civil Suit No.505 of 1996 and also sought partition of the suit properties by metes and bounds.
Defendant No.1 filed the impugned application under Order VII Rule 11 of the CPC which came to be rejected by the Trial Court vide its impugned order dated 12/12/2012 mainly on the ground that the issues raised by defendant No.1 in the impugned application require evidence and since there are triable issues involved, the plaint cannot be rejected.
Having heard the learned Senior Counsels for the respective parties and from a perusal of the record and the impugned order, prima facie, the plaint is questioned by the defendants broadly on the following two issues:
The prayer made in para - 13 (A) in the plaint is barred by Order XXIII Rule 3A of the CPC, as a suit challenging a consent decree is not maintainable; and
No right to sue accrued in favour of the plaintiff to seek partition of the suit properties, as they no longer remained HUF property once there was partitioned of the properties in the year 1979 and from the reading of the plaint, the plaintiff has not specifically pleaded a case as to how the suit properties are ancestral – joint family properties.
Since these two essential issues have raised by the defendants in the impugned application, this Court deems it appropriate to examine the same in light of the settled principles of law, as follows.
So far first issue is concerned, there is an express bar under the law as regards filing a suit to challenge the consent decree. Such bar is as per Order XXIII Rule 3A of the CPC, which reads thus:
"3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is passed was not lawful."
A plain reading of the aforesaid provision of the CPC clearly suggests that no suit is maintainable which questions the consent decree. It is evident from its bare reading that it would apply to any suit which questions the consent decree. It is nowhere stated in Rule 3A that a suit is barred challenging the consent decree at the instance of parties to the consent decree, otherwise not. Prima facie, the aforesaid provision of law would preclude any party, including a third party who was not a party to the consent decree, to maintain the suit. The aforesaid provision is party agnostic. This would not mean that such an affected third party cannot challenge the consent decree, but the modes and recourse are provided under the CPC itself to that third party who can challenge the consent decree. Such modes are already mentioned by the Full Bench of this Court in the case of Sakina Sultanali Sunesara (Momin) (supra), wherein it was held thus:
“40.The upshot of the above may be summed up as under:-*** *** *** (vii) If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC. …”
(emphasis supplied)
Yet, Mr.Shah, learned Senior Counsel, during the course of his arguments, would draw my attention of para-30 of the very Full Bench decision wherein it was observed thus:
“30.Still there could be one more situation, where the third party who was not the party to suit or the party to the compromise but had an interest in the subject matter of the compromise, is aggrieved by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit. So what remedy would be available to him ? It cannot be gainsaid that the decree based on the compromise between the parties under Order XXIII, Rule 3, if remains unchallenged would be a "consent decree" binding to the parties to suit. However, when the person aggrieved is third party who was neither a party to the suit nor a party to the compromise on the basis of which the decree was passed by the Court in the suit, would not be bound by such decree. Such a decree could not be said to be a "consent decree" qua such third party, and therefore, neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be application to him. Such an aggrieved party, with the leave of the Court can always file an appeal under Section 96(1) against the decree passed by the Court on the basis of the compromise, and can contest the decree on the ground that the compromise should, or should not have been recorded by the Court in view of Rule 1A(2) of Order XLIII of CPC. When the third party is vitally and adversely affected by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit on the subject matter or otherwise of the suit, he can certainly, with the leave of the appellate Court, prefer an appeal and can contest such a decree passed under Order XXIII, Rule 3. One of the grounds to contest the decree could be that such a compromise should or should not have been recorded by the Court.” (emphasis supplied)
It is true that in the aforesaid para, the Full Bench in Sakina Sultanali Sunesara (Momin) (supra), has observed that the third party is not bound by such decree and such a decree could not be said to be a consent decree qua such third party and therefore neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be applicable to him. But at the same time, while referring the recourse available to such third party, was also very much observed in the said para-30 itself, and finally summarized in para 40 (vii), referred to hereinabove. Had it been the case that a suit is maintainable at the instance of a third party to challenge the consent decree, the Full Bench would have certainly observed in this regard.
Nonetheless, the decision of a Division Bench and/or a Full Bench of this Court is binding to me and no contrary view can be taken by this Court unless the Hon’ble Apex Court held otherwise. Since it has been observed in Sakina Sultanali Sunesara (Momin) (supra) that a consent decree is not binding to the third party and the bar of Rule 3A of Order XXIII would not be applicable to the third party, the question would arise as to whether such a third party can maintain the suit challenging the consent decree.
Mr.Desai, learned Senior Counsel, during the course of his submissions, has placed strong reliance upon the decision of the Hon'ble Apex Court in the case of Triloki Nath Singh (supra), which in my view, sufficiently clarified the issue and provides a direct answer to the submissions advanced by Mr.Shah, learned Senior Counsel. The Hon'ble Apex Court in Triloki Nath Singh (supra) in terms held that the consent decree cannot be challenged by a stranger to the proceedings by way of a separate suit. The pertinent observations of the Hon'ble Apex Court made in this regard read as follows:
“1.The question arises in the appeal for our consideration is as to whether the decree passed on a compromise can be challenged by the stranger to the proceedings in a separate suit. *** *** ***
18.Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The Court can be instrumental in having an agreed compromise effected and finality attached to the same. The Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 CPC before the Court. *** *** ***
20.Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC. As such, a right has been given under Rule 1A(2) of Order 43 to a party, who denies the compromise and invites order of the Court in that regard in terms of proviso to Rule 3 of Order 23 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute. *** *** *** 23. In other words, the appellant can only claim through his predecessor Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment.“ (emphasis supplied)
As far as the decision of the Hon'ble Apex Court in the case of Chitralekha Builders and another (supra) is concerned, the issue before the Hon'ble Apex Court was not as similar as in the present case. In the case of Chitralekha Builders and another (supra), the challenge was to the judgment of the Division Bench of the High Court dismissing the appeal of the appellants who challenged the consent decree. The High Court appears to have noticed that the consent decree is not binding on the appellants who were not a party to the consent terms and the compromise decree cannot be set aside at the instance of the appellants who sought restoration of the suit. Since one of the appellants (appellant No.2) had already filed the suit, seeking various reliefs including the relief to set aside the consent decree, it has been observed by the Hon'ble Apex Court that the legal effect of such consent decree is open to be examined in the substantive suit filed by the appellant on its own merits in accordance with law, thereby it had not disturbed the judgment of the High Court.
Thus, in Chitralekha Builders and another (supra), it was not an issue before the Hon'ble Court as to whether a substantive suit filed by a non-party (stranger) to a compromise decree challenging the compromise decree was maintainable or not.
There is no cavil that the compromise decree to which the plaintiff was not a party, would not bind him in any manner. At the same time, the issue needs to be examined by the Court as to whether a non-party to the consent decree can challenge such decree by way of a separate suit. According to me, at best the non-party to a consent decree can always seek a declaration by way of a substantive suit, that such consent decree is not binding to him, as there is no such bar under Rule 3A of Order XXIII of CPC.
Apart from the aforesaid decisions, even in following decisions as well, the Hon'ble Apex Court has again clarified such position of law.
In the case of Manjunath Tirakappa Malagi and another vs. Gurusiddappa Tirakappa Malagi (Dead through Lrs) - 2025 SCC OnLine SC 835, in a similar set of facts, it has been held that the compromise decree cannot be challenged by way of a suit. The facts of that case also suggest that the plaintiff who challenged the compromise decree by way of a suit was not a party to the suit wherein the compromise decree was passed. The relevant facts and observations made by the Hon'ble Apex Court in the case supra read thus:
“2.The present appeal arises out of pure civil proceedings initiated at the hands of the present appellants in the year 2003. The appellants filed a suit for declaring a compromise decree entered into between the respondents (defendants) as null and void, and not binding on the appellants. Additionally, the appellants also sought partition of a certain share in the ancestral property, which was in the possession of the defendants. The trial court dismissed the suit of the appellants vide order dated 02.03.2007. Thereafter, the appellants filed the first appeal before the High Court, which has also been dismissed by the impugned order dated 23.09.2022.
3.Since the present matter concerns various suits, we would like to state the facts of the matter in short and the same are as follows: *** *** *** (d) From here, the main dispute arises. In 2003, the appellants filed the present suit (No.1/2003) seeking a declaration that the compromise decree dated 18.01.2000 is null and void as, according to the appellants, the 7 acres of land was their father’s property and not the ancestral property. Thus, the appellants’ claim that they are entitled to half of the 7 acres of land (hereinafter referred to as ‘suit property’). This is the suit with which we are dealing in the present appeal. This suit of the appellants was dismissed by the Trial Court, and then the first appeal filed by the appellants has also been dismissed by the High Court vide the impugned order dated 23.09.2022. Now, appellants are before us. *** *** ***
11.Also, a compromise decree cannot be challenged by filing a fresh suit as there is a bar on filing a fresh suit challenging the consent decree on the ground of the legality of the compromise under Order 23 Rule 3A of CPC, which reads as follows:
“3-A. 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.”
12.The only remedy against a compromise decree is to file a recall application. This Court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 summed up the position of law as follows:
“17.The position that emerges from the amended provisions of Order 23 can be summed up thus:
(i)No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.
(ii)No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.
(iii)No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.
(iv)A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made…” (Emphasis Provided)
Thus, even if we accept the contention of the appellants that their father was coerced by his brothers and father (appellants’ grandfather) to enter into a compromise, which led to the passing of the consent decree, a fresh suit is still not a valid remedy. In that situation, the appellants’ father should have filed a recall application before the Court that had passed the decree. The appellants’ father has never done so! Moreover, he had admitted the consent decree and never questioned its validity.” (emphasis supplied)
In the case of Shri Mukund Bhavan Trust and Ors. v. Srimanth Chhatrapati Udyan Raje Pratasinh Maharaj Bhonsle and another - 2024 15 SCC 675, in paragraph No.39, the Hon’ble Apex Court has held as under :
"39.Admittedly the plaintiff is a stranger to the suits which ended in compromise. Therefore, in view of the direct bar under Order 23 Rule 3-A CPC, he cannot seek a declaration "that the compromise decrees passed in Special Civil Suits Nos. 152 of 1951 and 1622 of 1988 and Civil Appeal No. 787 of 2001, Pune are void ab initio, null and void and the same are liable to be set aside". The law on this point is also already settled by this Court in Triloki Nath Singh v. Anirudh Singh. The bar under Order 23 Rule 3-A CPC is applicable to third parties as well and the only remedy available to them would be to approach the same court. In the present case, such an exercise is also not possible in view of the bar of limitation. Hence, we find the suit to be unsustainable." (Emphasis supplied)
According to me, in view of the above referred decisions of the Hon'ble Apex Court in the case of Triloki Nath Singh (supra), Manjunath Tirakappa Malagi (supra), and Shri Mukund Bhavan Trust (supra), it is by now well settled that a person who is a stranger to the consent decree cannot maintain a separate suit challenging such decree. When there is an express bar under Rule 3A of Order XXIII of the CPC to maintain a suit to set aside the consent decree, the plaint in question challenging the consent decree dated 25/09/1996 is required to be rejected being barred by law, i.e., Order XXIII Rule 3A of CPC.
So far as the second issue is concerned, it was a case of the plaintiff that, being a grandson of Premaji Rami, he has a birth right in the family properties inherited by the defendants from his grandfather, i.e., Premaji Rami. It is so stated in the plaint that the plaintiff’s grandfather died on 21/05/1981 and the defendants, being his sons, inherited his properties. At none of the places in the plaint, the plaintiff averred that the suit properties are coparcenary properties. Even after a meaningful reading of the entire plaint, what is deduced is that the suit properties were owned by the grandfather of the plaintiff and upon his death on 21/05/1981, such properties were inherited by his sons including plaintiff’s father, i.e., the defendants. If such would be the pleading of the plaint, the plaintiff cannot claim any right by birth in the property of his grandfather who died after the Hindu Succession Act, 1956 (herein after referred as “the Act, 1956”) came into force.
This issue is no longer remain res integra, having been decided by the Hon'ble Apex Court in the case of Commissioner of Wealth Tax, Kanpur (supra), followed in Yudhishter vs. Ashok Kumar - 1987 (1) SCC 204 and so on. This issue and position of law has been discussed in detail by this Court in the case of Nachiketa Kantibhai (supra) wherein it has been categorically held that after the year 1956, upon inheritance, the property in the hands of a son retains the nature and character of individual property and not as an ancestral property of the grandson in the hands of the son. Therefore, there is no acquisition of right by birth in the properties which were not coparcenary properties. This is in view of Section 8 of the 1956 Act, where interest now devolves by succession and not survivorship. Ultimately, this Court held thus:
“32.However, this connotation "ancestral property" is often misunderstood in the post 1956 era. Of course, according to the pre-codified Mitakshara law, son would inhere a right in the property by birth (due to creation of coparcenary). However, after 1956, merely because a property is ancestral, would give birth to no right title or interest of any person in the said property. That is to say, merely because a property is ancestral, the son, grandson or great grandson (or daughters, respectively) would acquire no right over the same.
33.Only if a property (naturally, being ancestral) has the character of a coparcenary property, is such right created by operation of law. That right as created before 1956, is also preserved by way of Section 6 and continues as such post enactment of the HSA 1956. *** *** ***
47.Therefore, a conjoint reading of the provisions of law along with the judgments laid down by the Hon'ble Court would show without a shred of doubt that before commencement of the 1956 Act if a property had been impressed with the character of a coparcenary property it remained the same and it would devolve as per Section 6 of the Act. However, if the property was not a coparcenary property before commencement of the 1956 Act and succession opened after 1956 Act of a self-acquired property, it would be transferred only as an individual property and no coparcenary would be created thereafter of such property.” (emphasis supplied)
So far as the case at hand is concerned, upon a bare reading of the plaint, it is very much clear that the plaintiff is asserting his right to the properties of his grandfather which were inherited by the defendants including his father upon the death of the grandfather on 21/05/1981 and in such a factual scenario, the properties which were inherited by his father, defendant No.3, along with his brothers, defendant Nos.1 and 2, became their self-acquired properties. In such circumstances, the family arrangement and/or consent partition deed executed between the defendants and their mother, which appears to have been recorded in Regular Civil Suit No. 505 of 1996 and culminated into a consent decree, the plaintiff cannot have a right to claim anything in the said properties which, according to the plaintiff, were inherited by the defendants from their father who happens to be the grandfather of the plaintiff.
Thus, when the plaintiff has no right to claim any share in such properties inherited by the defendants including his father from their father (plaintiff’s grandfather), no right to sue accrued in favour of the plaintiff to claim any relief for partition of such suit properties. Consequently, the plaint does not disclose any cause of action, inasmuch as no suit can be maintained by the plaintiff to claim relief as prayed in para 13(C), meaning thereby that the plaintiff cannot seek partition of the suit properties.
Since Mr. Shah, learned Senior Counsel, has during the course of his submissions emphasized the documents submitted along with plaint and contended that the suit properties are joint family-HUF properties, this Court, having scrupulously gone through the plaint, finds that there is an absence of specific pleading that suit properties are joint family properties, in such factual scenario, any number of documents produced by the plaintiff with plaint would not help him from rejection of the plaint. It is a settled position of law that foundational facts must be stated in the plaint to maintain the claim. No evidence can be led in the absence of pleadings. It is also a settled position of law that a party cannot lead evidence contrary to pleadings and in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. Therefore, in the absence of specific pleadings of the plaintiff that the suit properties are coparcenary properties or Hindu Undivided Family (HUF) properties, the plaintiff cannot place reliance upon the registered partition deed dated 26/03/1979 and other family arrangement deeds submitted with the plaint.
Even though, the plaintiff has placed reliance upon the registered partition deed dated 26/03/1979, family settlement dated 05/07/1993 as well as the mutual family partition deed forming part of the consent pursis dated 25/09/1996 to maintain his claim that he is entitled to have a share in the suit properties which are the subject matter of that suit and accordingly sought partition, but as observed above, in the absence of any material particulars to show how such properties can be considered as HUF or coparcenary properties, this Court cannot assume that such properties are HUF or coparcenary properties.
At this stage, it would be apposite to observe that as per settled law, there cannot be any presumption that a property belongs to an HUF or coparceners without there being any material pleading. In the absence of any material particulars and foundational facts stated by the plaintiff in the plaint in regard to how the suit properties can be considered as coparcenary or HUF, as the case may be, a mere submission in this regard would not save the plaint which lacks material pleadings.
At this juncture, it would be apposite to refer to relevant paragraphs of the judgment in the case of Nachiketa (supra) wherein such an aspect has been lucidly considered, which read thus :
“15.It is well settled that section 8 of the Act provides for the general rules of succession for a Hindu male who has died intestate. Whereas, section 6 of the said Act is an exception to the same in case of a coparcenary property. Therefore, unless and until there is a clear pleading, proof and consequential finding of fact that the property in question is a coparcenary property, the question of application of Section 6 does not arise. In such an event, the general clause, i.e., Section 8 of the Act will come into play and govern the succession. *** *** ***
57.Therefore, it is clear that unless and until there is a nucleus which has been used for purchase of the property, every property cannot be termed to be a property of the HUF merely because the same exists. Therefore, in absence of such presumption, it is necessary that exact pleadings with material particulars must be averred in the Plaint (or respective pleading) for a property to be construed as a joint family or ancestral property.
58.This can be examined from one more angle. Order VI Rule 4 of the Civil Procedure Code, 1908 (“CPC”) provides that all material particulars are required to be given in a Plaint. In fact, Courts have also held that averment of the nature of property cannot be averred as a mere mantra.
59.In Surendra Kumar v. Dhani Ram, (2016) 227 DLT 217, the Delhi High Court has held as follows:
“I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order 6 Rule 4, CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhister (supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically, stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.”
60.This principle is all the more important to be followed in view of the fact that post 1956, in absence of an existing coparcenary or property thereof, succession will be governed by Section 8 of the Act. Therefore, a party is obligated to give detailed material particulars and averments regarding the nature, existence, manner and mode of inheritance, etc. In absence of these material pleadings and particulars, there cannot be a presumption in vacuum. In the present case, assuming there is an averment that the property belonged to joint family, the same cannot be made in abstract and bereft of material particulars. Therefore, the statement cannot be a mere ipse dixit.” (Emphasis supplied)
Once, it is clear from a reading of the plaint that the plaintiff failed to plead that the suit properties are HUF or coparcenary properties, it is a fallacy on the part of the plaintiff to claim any share in the suit properties which, otherwise according to the plaintiff, were inherited by the defendants including his father from their father (plaintiff’s grandfather). According to my considered view, as per the settled position of law discussed supra, the plaint does not disclose any cause of action inasmuch as no right to sue accrued in favour of the plaintiff to claim any partition of the suit properties. If such would be the position, the Trial Court has committed a jurisdictional error in rejecting the impugned application filed under Order VII Rule 11 of the CPC. In that view of the matter, the decision of the Hon'ble Apex Court in Ratnam Chettiar and others (supra), upon which reliance was placed by Mr.Shah, learned Senior Counsel, would not come to the rescue of the plaintiff to save the plaint.
Apart from above, it is an undisputed fact that the plaintiff was born on 03/04/1995, much after the death of the grandfather, i.e., on 21/05/1981 and prior thereto, there was a registered partition deed executed by the plaintiff’s grandfather with the defendants and his wife on 26/03/1979, whereby the HUF properties of the family were divided between the grandfather and defendants. Thereafter, once again an oral partition appears to have taken place between the defendants on 01/10/1990 which was also reduced into writing in the form of a family settlement agreement on 05/07/1993. Thus, before the birth of the plaintiff, the suit properties were already partitioned between the defendants and thereafter, they no longer remained HUF properties.
It would be apt to refer to the recent past decision of the Hon’ble Apex Court in the case of Angadi Chandranna Vs. Shankar and Others - 2025 SCC OnLine SC 877, wherein observed thus:
“17.It cannot be disputed that the properties divided among Defendant No. 1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self-acquired properties of the respective sharers.” (Emphasis supplied)
It may be true that despite such partition, the grandmother and the original defendant No.2 filed Regular Civil Suit No.505 of 1996 wherein the aforesaid consent decree was passed upon the strength of the consent pursis filed, as there was a mutual partition deed executed by the parties to that suit. Once the defendant No.3 (plaintiff’s father) received any joint family properties by virtue of aforesaid partition which took place prior to the birth of the plaintiff, such properties in hands of the defendant No.3 became his self-acquired properties and he was free to enter into any compromise with his brothers/mother.
Thus, after having examined the second issue from all angles, I am of the considered view that neither plaintiff can claim partition of the suit properties nor does the plaint disclose a cause of action.
CONCLUSION:
In view of the foregoing observations, discussions and reasons, the following are the conclusions.
No third party to the consent decree can challenge such a decree by way of a separate suit, as it is barred by Order XXIII Rule 3A of the CPC. The remedy available to the aggrieved third party to the consent decree is to approach the very Court which passed the consent decree or he can file an appeal u/s 96(1) of the CPC by way of leave to appeal to the higher Court [See : Sakina Sultanali Sunesara (Momin) & Ors. (supra), Para 40(vii)].
Even though the plaintiff was not a party to the consent decree dated 25/09/1996 passed by the Civil Court concerned in Regular Civil Suit No.505 of 1996, in view of the settled position of law, he cannot challenge the consent decree by way of a suit, as it is barred by law.
Since the plaint lacks foundational facts and material particulars regarding nature of the suit properties, the Court cannot presume these properties are coparcenary or HUF properties, as the case may be. Rather, as per plaint, the suit properties inherited by the defendants from their father who happens to be plaintiff’s grandfather, i.e., Premaji Rami, who died on 21/05/1981, then as per Section 8 of the Act, 1956, the defendants have inherited such properties as their self-acquired, wherein the plaintiff being grandson has no right, title and interest, especially when plaintiff’s father, i.e., defendant No.3 is alive.
In view of above, the plaintiff has no right to sue the defendants and sought for the partition of the suit properties. As such, the plaint does not disclose any cause of action; suit is barred by law. In such case, the plaint needs to be rejected.
In view of the foregoing conclusions, the impugned order dated 12/12/2012 passed by the 7th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur, below Exhibit 13 in Regular Civil Suit No.215 of 2012, is quashed and set aside. Accordingly, the impugned application filed under Order VII Rule 11 of the CPC by defendant No.1 below Exhibit 13 in the aforesaid Regular Civil Suit is hereby allowed. Consequently, the plaint in question is hereby rejected.
Thus, the present Civil Revision Application is allowed. Consequently, the connected Civil Applications are disposed of. Rule is made absolute. No order as to costs.