BAYANI DAS Vs. BASANTI AGASTI AND ORS.

JUDGEMENT

(1.) Petitioner in this application has challenged the order dated 23.2.2012 passed by learned Addl. Civil Judge (Sr. Divn.), Balasore in C.S. No. 888 of 2000-I rejecting the applications filed by her under Order, 23 Rule, 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the suit for partition. Petitioner is the defendant No. 13 who contests the suit. The facts leading to the present case as narrated in the application are as follows:--

(2.) Defendant No. 13 has stated in her written statement that the suit property has been partitioned between the plaintiff and defendant Nos. 1 to 13 much prior to Current Settlement and accordingly parties were possessing their separate shares and major settlement record of rights has also been recorded in the name of defendant No. 13 separately in respect of her share of lands and the plaintiff has no manner of right, title, interest on her shares. Defendant No. 14 is the purchaser from the father of defendant No. 13. He has also admitted in his written statement regarding partition between the Balakrushna and Jasobanta.

(3.) During pendency of the suit the original plaintiff entered into compromise on 3.5.2002 with defendant Nos. 6, 9, 11 and on 3.8.2002 with defendant Nos. 21 and 25 and on 13.9.2002 with defendant Nos. 1, 2, 5 to 8 and on 3.4.2006 with defendant Nos. 26 to 31. In view of the above aforesaid compromise the opposite party No. 1 filed an application on 17.11.2011 for withdrawal of the suit. Petitioner has filed her objection challenging the maintainability of the petition. She has denied the assertions made in the petition and stated specifically therein that plaintiff has already examined and cross-examined and she has filed the application to withdraw the case after eleven years from the date of filing of the suit. A valuable right accrued in favour of the defendant No. 13 after examination and cross examination of the plaintiff in the suit. Hence she is seeking the relief of the court to transpose herself as plaintiff accordingly she has filed applications under Order, 23 Rule, 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the case.