IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.202 of 2004 ----------- Harihar Singh alias Haridwar Singh, son of late Nageshwar Singh, resident of village Khaira, P.O. Sarigaon, P.S. Sasaram, District Rohtas. …Defendant-Appellant-Appellant Versus 1. Most. Lakhmini Kuer, wife of late Nand Kishore Singh. 2. Shanti Devi, wife of Rajendra Singh, Both resident of village Khaira, P.O. Darigaon, P.S. Sasaram, District Rohtas. 3. Vimla Devi wife of Rajeshwar Singh, resident of village- Tarhari, P.O. & P.S. Sonhan,District Kaimur (Bhabhua) 4. Baijyanti Devi wife of Tarkeshwar Singh, resident of village Laurpurwa, P. O. +P.S. Mohaniya, District Kaimur (Bhabhua) 5. Asha Devi, wife of Jitendra Singh, resident of village Kirhindi, P.O. and P.S. Sheosagar, District Rohtas ….Plaintiffs-Respondents-Respondents Ist set. 6. Sheo Keshwar Singh, son of Bindeshwari Singh 7. Bishwadeo Narayan Singh, s/o Sheo Keshwar Singh 8. Deo Kumar Singh, S/o late Raj Keshwar Singh 9. Ajay Kumar Singh 10. Ashok Kumar Singh 11. Arjun Kumar Singh All sons of Deo Kumar Singh. 12. Amit Kumar Singh, minor son of Ajay Kumar Singh, under the guardianship of his natural father namely Ajay Kumar Singh 13. Vivek Kumar Singh, minor son of Ashok Kumar Singh under the guardianship of his natural father namely Ashok Kumar Singh All resident of village Khaira, P.O. Darigaon,P.S. Sasaram, District Rohtas. …Defendants-Respondents-Respondents 2nd set. 14. Ram Dutt Sharma, son of Butan Sharma 15. Sheo Pujan Sharma, son of Ram Dutt Sharma 16. Komal Sharma 17. Balmiki Sharma 18. Saryu Sharma All sons of Ram Dash Sharma. 19. Ram Dash Sharma, son of Din Bandhu Sharma 20. Din Bandhu Sharma, son of Ram Dutta Sharma, All resident of village Darigaon, P.S. Sasaram, District Rohtas. 21. Sheo Pujan Singh Yadav, son of Ram Jatan Singh 22. Taroni Devi, wife of Sheo Pujan Singh Yadav Both resident of village Babura, P.S. Sasaram, District Rohtas 23. Ram Sagar Singh son of Bhardul Singh Yadav, resident of village Babura, P.S. Sasaram, District Rohtas. 24. Kapil Singh 25. Kedar Singh 26. Sheo Bachan Singh - 2 - 27. Hari Shankar Singh All sons of late Manhaku Singh and all resident of village Kharserua, P.S. Sasaram, P.O. Darigaon, District Rohtas. 28. Ful Jharo Devi, wife of Ram Sagar Singh, resident of village Babura, P.O. Darigaon , P.S. Sasaram, District Rohtas …Purchasers-Respondents/Respondents 3rd set. 29.Balkeshwar Singh, son of late Nageshwar Singh 30.Bijay Kumar Singh 31.Jai Kumar Singh Both sons of Hardwar Singh 32.Giri Ratan Singh 33. Nag Ratan Singh Both minor sons Bijay Kumar Singh under the guardianship of his natural father namely Bijay Kumar Singh. 34. Mardi Ratan Singh 35. Ami Ratan Singh Both minor sons of Jai Kumar Singh, under the guardianship of his natural father namely Jai Kumar Singh All are resident of village Khaira, P.O. Darigaon, P.S. Sasaram, District Rohtas. …Defendants-Appellants-Respondents 4th set ____ For the Appellant : Mr. Jyotendra Pratap Singh, Advocate. For the Respondents: None. _____ . 15/ 12.01.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 130 of 1992, which was filed by the plaintiffs-respondents-respondents 1st set for partition of Schedule `K’ land by metes and bounds accepting the compromise petition filed by both the parties in Title Suit No. 586 of 1970. 4. The said suit was decreed by the learned Munsif-VI, Sasaram by judgment and decree dated 27.11.1997. The said judgment and decree of the trial court was challenged by the defendant-appellant in Title Appeal No.146 of 1997, which was dismissed by the learned - 3 - Additional District Judge-V, Rohtas, by judgment and decree dated 18.05.2004. The said judgments and decree of the learned courts below are challenged in the instant second appeal. 5. The question of law raised by the defendant-appellant is that the compromise petition having been filed by the parties on 24.07.1972 in Title Suit No. 586 of 1970, which was dismissed for default on 07.04.1973, the learned courts below were not justified in passing a decree on the basis of the said compromise petition, more so when Title Suit No. 160 of 1977 filed by the plaintiffs for the same relief was also dismissed for default. 6. Admittedly compromise petition was filed by both the parties on 24.07.1972 in Title Suit No. 586 of 1970, which was dismissed on 07.04.1973 and the subsequent title suit filed by the plaintiffs bearing Title Suit No.160 of 1977 was also dismissed for default but the said orders not being on merits cannot act as res judicata in the instant suit. Furthermore, the aforementioned compromise petition was admittedly filed by both the parties and there was no contention on behalf of the defendants nor any evidence with respect thereto had been produced claiming that either the compromise petition was not filed or after filing it was revoked or there was any fraud or forgery in the matter, rather the evidence on record clearly shows that both the parties had transferred the properties of their share allotted to them in the said compromise petition and hence the said compromise petition had duly been acted upon, which fact was also not denied by the defendants. - 4 - 7. In the said circumstances, the learned courts below were fully justified in holding that the compromise petition (Ext. 3) filed in the earlier suit bearing Title Suit No.586 of 1970 having been acted upon and followed by both the parties was legal and binding and has to be followed by the courts also while passing their respective judgment and decree. 8. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )