GURUDAYALSING Vs. BASANT SINGH

JUDGEMENT

(1.) The appeals are filed against judgment and decree of Regular Civil Appeal No.39/2000 and 42/2000 which were pending in the Court of the IVth Ad-hoc District Judge, Aurangabad. Special Civil Suit No.50 of 1971 was filed by Basantsing, appellant from second proceeding for relief of partition and separate possession of movable and immovable properties. The suit was partly decreed in his favour by the trial Court. Both, the plaintiff and defendant No.1 (appellant from the first proceeding) challenged the judgment and decree of the trial Court by filing aforesaid two civil appeals in District Court. The District Court has confirmed the decision of the trial Court. Defendant No.2 is the sister of the appellants from both the proceeding. Heard learned counsel of all the sides.

(2.) In these appeals original plaintiff and defendant No.1, the brothers have filed compromise document and they have prayed for disposal of both the appeals and also the original suit as withdrawn. This Court has passed order to the effect that the prayer made by the plaintiff and defendant No.1 will be considered at the time of consideration of both the appeals on merits. In view of this order, learned counsels for all the sides were heard. The trial Court has declared that defendant No.2, sister, is entitled to one-third share in the three properties which are mentioned in the operative part of the judgment delivered by the trial Court.

(3.) For withdrawal of the suit, provisions like Order 23 Rule 1 of the Code of Civil Procedure need to be used. For withdrawal of the suit, ordinarily no permission of Court is necessary if plaintiff has no desire to have liberty to file fresh suit. Ordinarily that permission is given on the grounds mentioned in Order 23 Rule 1 of the CPC. From the grounds it can be said that it is ordinarily to be used before decision of the suit. Though there is such provision, when the suit is filed for relief of partition, the things are different. In such a suit plaintiff and defendant are party of equal status. In the case reported as (Chandramohan Ramchandra Patil v. Bapu Koyappa Patil,2003 CJ 195) at para 13 the Apex Court has made following observations :