BASAPPA TIPPANNA DURGANNAVAR Vs. BHIMAPPA RAMAPPA DURGANNAVAR

JUDGEMENT

(1.) This revision petition is directed against an order made on 7-8-1967 in Civil Suit No. 57 of 1964 on the file of the learned Munsiff of Madhol, permitting the plaintiffs therein to withdraw from the suit with liberty to file a fresh suit under Order 23 Rule 1(2)(b) C.P.C.

(2.) The few facts relevant for the disposal of this petition are as follows: The respondents in this revision were the plaintiffs in Civil Suit No. 57 of 1964 on the file of the learned Munsiff at Madhol. They sued the defendant (the revision petitioner) for mere recovery of possession of property bearing R. S. No. 108 at Junnur village of Madhol Taluk, with costs and mesne profits. In the suit the prayer was confined to one Revenue Survey number specified above.

(3.) After the pleadings were completed and the suit was posted for evidence, the plaintiffs filed Ex. 76 under O. 23 R. 1 C.P.C. praying for permission to withdraw from the suit and liberty to file a fresh suit. The ground stated therein is that the first plaintiff was a minor on the date of death of his father and that he was unaware of the real nature of the family properties. It is also stated that the suit related to Walikarki inam land, which was in the possession and enjoyment of his late father. It is further averred by him that he could not instruct his counsel properly in respect of his suit properties and as to the nature of his right therein. According to the plaint in C. S. No. 57/64, the defendant, who is the uncle of the first plaintiff, fraudulently took possession of the inam land in question and secured a mutation of the entries in the Record of Rights on a misrepresentation that he was entitled to succeed to the late holder of the inam land, while the first plaintiff was the real heir entitled to succeed both to the office and the land. It may not be out of place to refer to the second suit filed by the plaintiffs soon after permission for withdrawal of the suit was accorded to the plaintiffs, a copy of the plaint in which has been made available by Sri H. F. M. Reddy, the learned counsel appearing on behalf of the petitioner. The said suit came to be registered as Civil Suit No. 45 of 1965. It is seen from the plaint in C. S. No. 45 of 1965 that the suit is for partition and possession of not only R. S. No. 108, which was the sole subject matter of the earlier suit, but also several other items of properties, both moveable and immovable.