JUDGMENT 1. This appeal is by defendant No.1. Plaintiff-respondent No.1 has filed a civil suit for declaration that she is Bhumiswami and is in possession on the suit lands situated in village Mehra Khurd over survey number 1735/2 having area 0.272 hectare, survey number 1736/2 having area 0.105 hectare and lands situated in village Pura Bheemnagar over survey number 1409 having area 0.182 hectare and survey number 1452 having area 0.679 hectare and the will dated 25.8.1977 and the decree dated 25.8.1983 passed in Civil Suit No. 351-A/83 is null and void. 2. In the suit plaintiff claimed that she is the owner of the suit lands and is in possession of the property. Decree is passed in favour of defendant No. 1 in Civil Suit No. 351-A/83 playing fraud. Defendant No.1 got a Will manufactured in his favour said to be executed by Chokhelal, her husband's father. Defendant No.1 is a distant relation of the plaintiff. He is son of a distant cousin of her husband. Said Will dated 25.8.1977 bears forged thumb impression of Chokhelal. Plaintiff has submitted that the said Will is void and the decree is not binding upon her. It is further contended by the plaintiff that she is an illiterate poor widow and the said compromise decree was obtained by playing fraud upon her. Plaintiff has put her thumb impression on some application for securing loan, but defendant No. 1 has secured compromise decree in his favour. 3. Defendant denied the averments in the suit and claimed that defendant has acquired absolute rights over the suit lands. Suit is barred by principle of resjudicata. 4. Trial Court framed as many as eight issues and dismissed the suit holding therein that Chokhelal had executed the Will dated 25.8.1977 in favour of defendant No. I Ramlakhan, suit lands are not in possession of the plaintiff and the decree passed in the earlier suit is binding upon the plaintiff. In appeal first appellate Court allowed the appeal and held that the decree passed in Civil Suit No. 351-A/83 has been obtained by fraud and is not binding upon the plaintiff 5. In appeal first appellate Court allowed the appeal and held that the decree passed in Civil Suit No. 351-A/83 has been obtained by fraud and is not binding upon the plaintiff 5. The appeal is admitted (6.3.1997) on the following substantial question of law: "Whether in the absence of any pleading and evidence about the date of death of Chokhelal and on finding that Will of Chokhelal in favour of defendant is proved in respect of suit properties, plaintiff's suit for possession over the suit properties is liable to be decreed? Subsequently, vide order dated 14.12.2000 another additional substantial question of law is framed by this Court viz: "Whether the suit as framed was barred in view of Order 23 Rule 3A CPC?" 6. Counsel for the appellant submitted that earlier suit was compromised between the parties, therefore fresh suit on the same cause of action is not maintainable under Order XXIII Rule 3 CPC. Decree Ex. P-2 was passed on 25.8.1983. To examine this fact, it is to be considered whether there are proper pleadings in the plaint regarding playing fraud upon the plaintiff in getting the decree. 7. On perusal of the plaint, plaintiff in para 2 of the plaint has pleaded that plaintiff's father-in-law namely Ramnath and Chokhelal are dead. Defendant No.1 is a son of the plaintiff's husband's elder brother. Defendant No.1 was not closely related to plaintiff's father-in-law. Defendant No. 1 is a distant relation and his father's brother's son therefore plaintiff was dependant upon him. Defendant No. 1 has misued the confidence posed by the plaintiff and has fraudulently got the matter compromised in civil suit and decree was obtained. In the evidence, defendant has deposed that in Civil Suit No. 351-A/83 compromise application Ex. D-10 was filed by the plaintiff and defendant and said compromise application was read over to the plaintiff. She affixed her thumb impression on the said compromise and decree Ex. D-2 was passed and defendant No. 1 was declared Bhumiswami of the suit lands. Plaintiff has pleaded that she had signed the papers for securing loan for her well. 8. From this evidence, it is to be examined whether earlier decree passed could be set aside. Question Involved in the case is whether earlier compromise decree could be set aside in a subsequent suit. 9. Plaintiff has pleaded that she had signed the papers for securing loan for her well. 8. From this evidence, it is to be examined whether earlier decree passed could be set aside. Question Involved in the case is whether earlier compromise decree could be set aside in a subsequent suit. 9. In the case of Banwari Lal v. Smt. Chanda Devi [ AIR 1993 SC 1139 ], it is held that. the party challenging compromise can file a petition under proviso to Rule 3 of Order XXIII or appeal under section 96 (1) of the Code of Civil Procedure questioning the validity of compromise in view of Rule 1A of Order XLIII of the Code. If the agreement of the compromise itself is fradulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. In the said case, a petition under Order XXIII Rule 3 CPC was filed. Apex Court while considering the scope of Order XXIII Rule 3A in para 7 of the judgment has held that having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation a specific bar was prescribed by Rule 3A in respect of institution of a separate suit for setting aside a decree on basis of a compromise. While considering the scope of Order XLIII read with section 96, the Apex Court held that under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The Court must therefore insist upon the parties to reduce the terms into writing. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The Court must therefore insist upon the parties to reduce the terms into writing. It is held in this case that application under Order XXIII was maintainable before the subordinate Judge and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise. 10. In the case of Fosa v. Moja [ 2001 (1) MPLJ 558 ], it is held that the Court which had entertained the compromise petition has to examine whether compromise was void of voidable under the Contract Act. Party challenging compromise can file petition under the proviso to Order XXIII Rule 3 CPC or an appeal under section 96 to question the validity of compromise. 11. From the evidence on record, it is not clear that after recording the compromise, whether the Court passing decree has satisfied itself regarding the compromise of the parties and recorded evidence of the parties in relation to compromise. Therefore, record of Civil Suit No.351-N83 was called for. On perusal of the records, it is found that the civil suit was filed on 18.8.1983. On the same day, defendant entered appearance and submitted the compromise application. It is mentioned in the order sheet that the plaintiff and defendant appeared in person and presented the application for compromise. On 25.8.1983 the case was fixed for considering the compromise and compromise decree was passed. No written statement was filed by the defendant. No one appeared for the defendant. It is only mentioned that defendant appeared herself. Trial Court has not satisfied itself whether defendant was the same person who had entered into the compromise. No body identified plaintiff Budha. No evidence on compromise application was recorded and decree was passed. Suit was filed on 18.8.1983 and on the same day application for compromise was filed on behalf of plaintiff and defendant but it is not known who has presented the application. No body identified plaintiff Budha. No evidence on compromise application was recorded and decree was passed. Suit was filed on 18.8.1983 and on the same day application for compromise was filed on behalf of plaintiff and defendant but it is not known who has presented the application. In the application, there is no endorsement regarding presentation of the said application and on the back side of the application, it is mentioned that the compromise is presented by the plaintiff and the defendant and the application was read over and explained to them. Both the parties had accepted the compromise and decree was passed on that date. 12. Courts below have not cared to go through the entire record to come to conclusion that there was actual compromise between the parties in earlier civil suit No. 351-A/83. It is strange that on the date of filing of the suit, without notice to the defendant, application for compromise was filed and on very next date of hearing i.e. on 25.8.1983 compromise decree was passed. It is apparent that the said compromise was not validly proved and on perusal of the records, it is apparent that the trial Court has not recorded any finding that the parties were identified and parties to the suit had appeared before the Court. It is also admitted that no power was filed on behalf of defendant Budha. In para 18, finding is recorded that without notice and without recording evidence, said compromise was recorded. 13. Contention of the plaintiff is that she had no knowledge of earlier suit or passing of decree therefore, earlier compromise decree will not operate as resjudicata. Considering the facts of the case, first appellate Court has not committed any error in decreeing the suit of the plaintiff. In the facts of the case, suit as filed was not barred under Order XXIII Rule 3 CPC. Therefore, question of law framed by this Court on 14.12.2000 is answered that in the facts of the present case, suit as framed is not ban-ed under Order XXIII Rule 3 CPC. 14. As regards question of law framed by this Court on 6.3.1997 is concerned, pleadings of the parties is to be perused. Defendant Ramlakhan has based his claim on the basis of Will dated 25.8.1977 executed by deceased Chokhelal. 14. As regards question of law framed by this Court on 6.3.1997 is concerned, pleadings of the parties is to be perused. Defendant Ramlakhan has based his claim on the basis of Will dated 25.8.1977 executed by deceased Chokhelal. Burden was upon the defendant to prove the said Will, as plaintiff has categorically deposed that no Will was executed by said Chokhelal. Plaintiff has pleaded that after the death of Chokhelal, said Will was forged in favour of defendant No.1. Defendant has pleaded that said Will was executed on 25.8.1977 and he examined witnesses. First appellate Court has found that the Will has not been proved. 15. Defendant Ramlakhan has deposed in para 2 of his deposition that Chokhelal had executed the Will 17-18 years prior to 5.1.1996 (date of deposition). This witness has deposed that scribe of the said Will was Kalyansingh. Kalyansingh wrote the Will and read over to Chokhelal in presence of witnesses. Chokhelal put his thumb impression on the Will in presence of witnesses. After executing the Will Chokhelal died. He also admitted in para 4 that even after execution of the Will Ex. D-l lands continued to be recorded in the name of plaintiff Budha. In the cross-examination, he admitted that property was ancestral at the hands of Chokhelal. Rameshwar son of Chokhelal predeceased Chokhelal and plaintiff Budha is widow of said Rameshwar. He deposed in para 9 of the cross-examination that Rameshwar died in the year 1975 when Chokhelal was 68 years of age. He has deposed that Chokhelal asked him to call someone so that he will execute Will in presence of defendant No.1. He called Kalyan and his brother Ramshankar. On the dictation of' Chokhelal, Kalyan wrote the Will and his brother Ramshankar was present at the time of execution of the Will. In para 12 he admitted that on the date of drafting the civil suit application for compromise was also drafted. Application for compromise was filed on the same day when the suit was filed. This witness was not sure about the year of death of Chokhelal. In para 14 he has deposed that Chokhelal died in the year 1977 and lateron he stated that Chokhelal died in the year 1978. Application for compromise was filed on the same day when the suit was filed. This witness was not sure about the year of death of Chokhelal. In para 14 he has deposed that Chokhelal died in the year 1977 and lateron he stated that Chokhelal died in the year 1978. However DW 3 Kalyansingh scribe of the Will has deposed in para 1 that he wrote the Will on the dictation of Chokhelal and after the Will was written, Chokhelal affixed his thumb impression on the Will. He admitted that he read over the Will to Chokhelal and thereafter witnesses Gutti and Ramshankar had put their signatures. 16. Considering the facts of the case and the evidence on record, burden was upon the defendant to prove the exact date of death of Chokhelal. Will is said to be executed on 25.8.1977 and attested by two witnesses. None of the attesting witnesses has been examined. Considering the facts of the case, first appellate Court has recorded a finding that the Will executed in favour of defendant No.1 is not proved. This is a finding of fact. Burden was upon the defendant to disclose the date of death of Chokhelal. In the said facts of the case, first appellate Court has not committed any error in decreeing the suit of the plaintiff. Question of law framed by this Court on 6.3.1997 is answered accordingly. 17. In the result, appeal fails and is dismissed with costs. Counsel's fee as per schedule.