MURLIDHAR Vs. AGNOO RAM

JUDGEMENT

(1.) IN this appeal by the appellants/defendants, the following substantial questions of law arise for determination :

(2.) THE facts not disputed in this appeal are that the appellants/defendants No.1 & 2 and respondent No.3 are brothers being the sons of Late Kanhaiya Lal Dewangan. Dewarin Bai is the mother of the appellants. In the year 1981, respondents No.1 & 2 along with Dewarin Bai had instituted Civil Suit No.4-A/ 1981 in the Court of Civil Judge Class II, Narayanpur against the appellants/ defendants for a declaration that the gift deed executed by Late Kanhaiya Lal Dewangan in favour of the appellants No. 1 & 2 was void. Relief of possession of the suit land i.e., KhasraNo.784 area 20 decimals situated at Village Narayanpur was also sought. It was averred that during the life time of Kanhaiya Lal, a partition had taken place on 14-05-1968 whereunder Kanhaiya Lal had permitted the respondents and the appellant No.3 to construct houses on their share of the land. It was also pleaded that the appellant No.3-Chetan Singh had fraudulently got a gift deed of the suit land executed from Kanhaiya Lal in favour of his two sons i.e., the appellants No.1 &2. On 20-11-1981, the respondents herein and Dewarin Bai filed an application under Order 23 Rule 1 C.P.C. for withdrawal of the suit on the ground that they saw no possibility of succeeding in the suit on the basis of cause of action pleaded. Liberty for institution of a fresh suit was neither prayed nor granted. The Civil Judge Class I, Narayanpur allowed the said application and dismissed the suit as withdrawn.

(3.) A specific plea was raised by the appellants/defendants in the written statement para 22 that in view of the withdrawal of the earlier Civil Suit No.4-A/ 1981, the respondents/plaintiffs were precluded from filing a fresh suit in respect of the subject matter or part of the claim in the earlier suit. The trial Court did not frame any issue on this question and both the Courts below did not consider the said plea taken by the appellants/defendants.