RAMRAO BHAGWANTRAO INAMDAR Vs. BABU APPANNA SAMAGE

JUDGEMENT

(1.) THIS is an application in revision against the order of the Assistant Judge of Belgaum allowing the withdrawal of a suit with liberty to file a fresh suit. The original plaintiff, who died during the pendency of the suit, filed the suit in the Court of the Subordinate Judge of Chikodi for an injunction restraining the defendants from obstructing him in removing the trunk of the babul tree which he had cut down. He alleged that the tree stood on his land survey No.128 |l of Badakatul and had been in his enjoyment for forty years. The land is bounded by a stream on its east and the defendants who are the inamdars of the village; contended that the tree was not standing on the plaintiff's land, but in the bed of the stream of which the flow had been wrongfully diverted by the plaintiff by artificial means. The plaintiff claimed that the said portion of the bed was an alluvion and as such was an accretion to his land, while the defendants contended that the new land in the bed of the stream was not an alluvion since it was formed as a result of the plaintiff's wrongful construction of a fencing in the bed of the stream, and that even if it were an alluvion, they, as the inamdars of the entire village, were entitled to it. The trial Court held that the new land was not an alluvion, that the plaintiff had wrongfully encroached upon the bed of the stream, of which the inamdars were the owners, and that the plaintiff could become entitled to it only by being in adverse possession thereof for the statutory period. The trial Court observed that adverse possession had not been specifically pleaded in the plaint, and that even if the plaintiff be allowed to prove his title by adverse possession, the evidence adduced was insufficient to hold it proved. The suit was, therefore, dismissed with costs, and in the appeal filed by the deceased plaintiff's sons, they applied for per mission to withdraw the suit with liberty to file a fresh suit, on the ground that " the case of adverse possession and declaration was not embodied in the plaint", "through oversight". In spite of the respondents' objections, the application was granted and the suit was allowed to be withdrawn with liberty to file a fresh suit. The respondents (the original defendants) have now come in revision.

(2.) THE question that arises in this case is whether the ground on which the withdrawal of the suit has been allowed is such as is contemplated by Order XXIII, Rule 1, Sub-rule (2), of the Civil Procedure Code, 1908. Under that sub-rule, withdrawal of a suit with liberty to institute a fresh suit in respect of the same subject-matter may be permitted to the plaintiff, where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim.

(3.) IN Kali Ram v. Dharmmi [1934] A. I. R. All. 214 and in Syed Sadeq Reza v. Asaj Kader Sayed [1931] A. I. R. Cal. 268 an unrestricted meaning was given to the words " other sufficient grounds " and Sub-rule (2) (b) was so interpreted as to give the Court authority to permit the withdrawal of a suit on any ground, which appeared to it to be sufficient, whether that ground was in the nature of a formal defect or not; but the earlier rulings to the contrary were not discussed in these two cases. IN Kamusiwimi Pilled v. Jagathambal (1918) I. L. R. 41 Mad. 701 Sadasiva Ayyar J. differed fromthe earlier rulings in Aiya Koundm v. Jagan Mandaiathipathiar (1914) 27 M. L. J. 480, Kharda Co. , Ltd. v. Durga Charm Chandra (1909) 11 C. L. J. 45, and Mabullo Sardar v. Rani Hemangini Debi (1910) 11 C. L. J. 512, and expressed his opinion that there was nothing clearly indicated in the Section itself from which it could be inferred that the Legislature intended to allow withdrawal with permission only in the cases where the suit was bad by reason of a formal defect or something analogous to a formal defect. His opinion was, however, obiter, since the decision ultimately turned on the finding that the ground, whether analogous to a formal defect or not, was insufficient. The other Judge in that case, Oldfield J. , expressly stated that he was not disposed to reconsider the principle referred to in Aiya Koundan v. Jagan Mandalathipathiar (1914) 27 M. L. J. 480, and that it was not necessary to decide whether in that case the Court had jurisdiction to allow the withdrawal of the suit by the plaintiffs, since, even if it had, the plaintiffs had not been honest and deserved no consideration.