KRISHNA KUMAR YADAV Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Plaintiff's suit for declaration of title on the ground of adverse possession has been dismissed by the trial Court. The suit was preferred on pleading that the plaintiff is in adverse possession of a canteen in the capacity of he being the Executive President of Ganrashtriya Canteen, Bapu Ki Kutiya, Tehsil Premises, Durg w.e.f. 26.01958 and since the possession is hostile, peaceful and uninterrupted, the plaintiff has acquired title by adverse possession. The defendant remained ex parte, however, the trial Court has still dismissed the suit on the ground that mere long possession is not a ground for passing a decree for adverse possession.

(2.) Since the appellant/plaintiff has moved an application under Order 23 Rule 1 (3) of CPC for withdrawal of the suit with liberty to move a duly constituted suit afresh, therefore, we shall first dwell on the application.

(3.) Under Order 23 Rule 1 (3) of CPC, plaintiff can be permitted to withdraw the suit on being satisfied that the suit itself would fail for the reason of some 'formal defects' or that there are 'sufficient grounds' for allowing the plaintiff to institute a fresh suit for subject matter of a suit or part of claim. The law on the issue as to when the Court should exercise judicial discretion allowing the plaintiff to withdraw the suit is well settled that when an application is filed, the Court must be satisfied about the 'formal defects' or 'sufficient grounds'. Even if the word 'formal defect' is construed liberally, the same is necessarily to be construed to mean misjoinder of parties, misdescription of suit property, failure to disclose a cause of action or other defects of like nature.