RAM BILAS Vs. IVTH ADDL DISTRICT JUDGE SHAHJAHANPUR

JUDGEMENT

(1.) Impugned herein is the order dated 30-11- 1988 passed by the Appellate Court in Civil Appeal No. 141 of 1981 whereby the plaintiff was permitted to withdraw suit attended with permission to institute fresh suit with cost quantified at Rs. 300/ -.

(2.) THE dispute in the instant petition relates to the land adjoining Khandhar in the east of plot Nos. 120 to 126, which according to the plaintiffs was being used as a public passage and which according to the defendants was Sahan of his house and not public passage which he annexed to his house. The dispute escalated into institution of the suit, which the plaintiff filed for the relief of permanent injunction restraining the defendants from taking possession over the land in dispute. The plaintiffs' case is that the land in dispute is ancestral property which is being used by plaintiffs' ancestors much prior to date of vesting and defendant had no right to open new Rasta for ingress and egress. The cause of action, according to the plaintiffs arose on 1-7-1979 when defendant illegally and forcefully tried to interfere with the right and possession of plaintiffs. On the other hand, defendant denied the plaintiff's case stating that the land in dispute belonged to him from the time of his ancestors and that it was never in the Khandhar but the same was always used as Sahan and the land was being used for tying animals. Various other pleas were also raised by parties in aid of their respective case and thereafter, issues were framed and the suit culminated in being dismissed by means of judgment and decree dated 7-10-1983. It would further appear that the plaintiffs went up in appeal against the judgment of dismissal. During pendency of appeal, an application came to be filed by the plaintiffs seeking withdrawal of the suit mainly on three grounds; firstly, that in the original plaint map, length and breadth of the 'gali' had not been shown, secondly, the spot position has been altered and it requires amendment in the plaint and thirdly, the Gaon Sabha was a necessary party. The appellate Court allowed the application and permitted withdrawal of suit attended with liberty to file a fresh suit. It is in the above backdrop that the present petition has come to be filed.

(3.) BEFORE proceeding with the analysis of the question involved in the Instant petition, it would be appropriate to scan the impugned order passed by the appellate Court. ....Vernacular Text Ommited....