JUDGMENT I.B. Singh, Member - This is a defendants' second appeal against judgment and decree dated 12-8-1977 passed by learned Additional Commissioner, Agra Division, Agra, dismissing appeal No. 233 of 1976 against judgment and decree dated 1-11-1976 passed by Assistant Collector 1st Class, Agra decreeing plaintiff's suit. 2. Smt. Shanti Devi plaintiff had filed suit under Sections 229-B/176 of Act 1 of 1951 claiming th share in the disputed land as the tenancy was of Gitam Singh her father-in-law as her husband Rajjan Singh son of Gitam Singh has predeceased Gitam Singh and the shares of defendants 1, 2 and 3 was th each who are sons of Gitam Singh. 3. The suit was contested by defendants alleging that Rajjan Singh had died unmarried and the plaintiff is not his widow and has got no share. 4. The parties had filed compromise on 31-10-1975. The plaintiff's suit was decreed on 1-11-1975. 5. I have heard the learned died as widow of Rajjan Singh real counsel for the parties and have brother of appellant and defendants perused the record. 2 and 3. 6. It has been argued that the lower appellate court wrongly dismissed the appeal filed as time barred without considering the affidavit under Section 5 of the Limitation Act and the circumstances that due to compromise regarding share, the appellant was certain that suit will be decreed accordingly and he had no knowledge of the decree otherwise and due to illness he was unable to file the appeal earlier; that as the plaintiff-respondent No. 1 had died and has been inherited by present appellant and respondent Nos. 2 and 3, therefore, the share of the plaintiff goes to appellant and respondent Nos, 2 and 3, therefore, their share be declared and decreed to be ?rd of each. 7. It has been argued accordingly in reply. 8. This appeal is liable to be allowed and the judgment and decree passed by the lower appellate court is liable to be set aside view of the special circumstances that plaintiff has died and has been inherited by appellant and respondents 2 and 3 and also because circumstances of compromise and illness of the appellant who had no knowledge of the decree of the trial court accompanied with affidavit the application under Section 5 of the Limitation Act was liable to be allowed. The trial court acted illegally in not decreeing the suit according to compromise of parties on the ground that legal share of the plaintiff was reduced. See 1955 R.D. page 29 : 1968 R.D. page 15. 9. It is true that in a division suit even a defendant can be treated as plaintiff and can enforce partition. See 1964 A.L.J. 1013. In the present case plaintiff died as widow of Rajjan Singh real brother of appellant and defendants 2 and 3. 10. It is also clear that Rajbir respondent No. 2 died on 27-7-1982. His widow Chandra Kala has been substituted. When the devolution opened after the death of plaintiff Shanti Devi, Rajbir was not alive and only appellant and respondent No. 3 were alive, therefore, the th share of the plaintiff will go in equal shares to the appellant and respondent No. 3 whose shares become 3/8 each and the share of respondent No. 2 Smt. Chandra Kala widow of Rajbir remains tins th and is held accordingly. Lots of their shares shall be prepared accordingly. 11. In view of the above, this appeal is allowed, and decree passed by both the courts below are set aside and the share of Bhagwan Singh and Virendra Singh sons of Geetam Singh are held to be ?th each and that of Smt. Chandra Kala widow of Rajbir Singh is held to be th. Lots shall be prepared accordingly.