SUKABAI Vs. MANSINGH

JUDGEMENT

(1.) Learned counsel for appellants has sought permission to withdraw the suit as also the present appeal.

(2.) This second appeal under Section 100 of CPC is at the instance of plaintiffs in the suit. The trial court by judgment dated 12/7/2013 had dismissed the CS No. 2A/13 and the first appellate court by the judgment dated 14/2/14 by dismissing the regular civil appeal No. 4A/13 has affirmed the judgment of trial court.

(3.) On perusal of the record, it is noticed that the appellants had filed the suit for declaration and permanent injunction. The courts below have reached to the conclusion that the suit property being agricultural land situated in village Balwan Tehsil and District Jhabua, Patwari Halka No. 05 survey No. 772/2 & 773/2 area 0.45 and 0.06 hectares, total area 0.51 hectare was purchased by Kishan Singh husband of appellant No. 1 and father of appellant No. 2 vide registered sale deed dated 22/6/99 Ex.P-1 but even after holding so in favour of appellants, the courts below have dismissed the suit on the ground that appellants are admittedly not in possession of the suit property and they have not claimed the relief of possession therefore, the proviso to Section 34 of Specific Relief Act is attracted and on the ground that the suit suffers from defect of non joinder of parties. Since the suit of appellants has been dismissed on the technical ground hence there is no legal impediment in allowing the prayer for withdrawal of the suit with liberty to file fresh suit.