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Judgment
Learned counsel for the petitioner is present, however, the learned counsel for the respondents is absent.Â
The petitioner is defendant no.4 in Title (Partition) Suit No.9 of 2006 which was instituted by Kunti Devi and others for a preliminary decree for
partition of schedule-A property and for appointment of a Survey Knowing Pleader-Commissioner for effecting partition between the parties.Â
In the suit there are as many as five defendants. The plaintiffs have pleaded that grand-father of the plaintiffs namely, Purushottam Mahato died
in the year 1970 leaving behind his 3 sons namely, Mansa Mahto, Ganesh Mahato and Malin Mahato. The said Malin Mahato died on 19.04.2006.Â
The plaintiffs have claimed that their father namely, Ganesh Mahato was absolute owner of Schedule-A properties. Ganesh Mahato is the father-in-
law of defendant nos.1 & 4 and grand-father of defendant nos.2, 3 and 5. After his death his properties were jointly inherited by his son-Drupad
Mahato and 5 daughters. The said Drupad Mahato has also died on 19.12.2004 leaving behind his two wives namely, Smt. Purnima Mahato and
Smt. Tunu Devi (Mahato) who along with their minor sons and one daughter inherited 1/6th share of Drupad Mahato in Schedule-A properties.Â
From the plaint averments, it is apparent that the plaintiffs have admitted share of the defendants in Schedule-A properties. Order dated
24.09.2011 passed in Title (Partition) Suit No.9 of 2006 records that a compromise petition under Order-XXIII Rule 1 CPC read with section 151
CPC was filed which was referred for settlement before the Lok Adalat. Â
Petitioner’s grievance is that on the basis of the compromise petition which was never signed by her, the suit has been disposed of.Â
Order-XXIII Rule 1 CPC provides that at any stage of the suit the plaintiff may abandon whole or a part of his claim as respect to one or many of
the defendants. Right of a plaintiff to withdraw or abandon the suit under Order-XXIII Rule 1 CPC was unrestricted till by an amendment Rule 1-A
was incorporated in Order-XXIII of the Code. Rule 1-A CPC provides that if a plaintiff applies to withdraw the suit under Rule 1, on an application
by   a defendant for his transposition in the suit as a plaintiff  if the court finds that there is substantial question of law to be decided as against
one or other defendants, such defendant may be transposed as a plaintiff in the suit. Rule 1-A to Order-XXIII CPC has been incorporated to avoid
a situation which may occur in a partition suit in which a plaintiff may for any reason whatsoever applies to withdraw the suit so as to prejudicially
affect the right of other defendants; each party in a partition suit has an independent right to seek partition. By withdrawing the suit the plaintiff
may cause injury to the other defendants who if the suit is withdrawn may not be able to seek partition.Â
Simply by stating that a compromise petition has been filed in the partition suit, without recording its satisfaction on compliance of Rule 3 to Order
XXIII CPC the suit cannot be disposed. The petitioner has claimed that she has not signed the compromise petition. Thus, unless the plaintiff admits
right of this defendant, the suit cannot be disposed of on the basis of a compromise petition.   Â
In the above facts, finding serious infirmity in the impugned order dated 24.09.2011, it is set-aside.Â
The writ petition stands allowed.
The compromise petition filed in Title (Partition) Suit No. 9 of 2006 shall be disposed of, in accordance with law.
Let a copy of the order be transmitted through FAX to the learned trial court.Â