MOHIDNER SINGH Vs. BABU SINGH

JUDGEMENT

(1.) This is plaintiffs' second appeal whose suit for the grant of the permanent injunction restraining defendant No. 1, Babu Singh, their father, from alienating in any way the land to defendant No. 2 Mistri Shri Ram or any other person has been dismissed by both the Courts below.

(2.) The plaintiffs filed the suit against their father for the grant of the permanent injunction on the allegations that the suit property was the coparcenary property of the plaintiffs and their father Babu Singh and was inherited from their common ancestor. Thus, the said Babu Singh had no right to transfer the same without any legal necessity. Since he had effected an agreement to sell the suit land to defendant No. 2, the latter was also impleaded as a defendant to the suit. The suit was contested inter alia on the ground that the suit property was not coparcenary property, as alleged. The trial Court found that the suit property was not proved to be the ancestral coparcenary property of the parties. Consequently, the suit was dismissed. In appeal, the learned District Judge affirmed the said finding of the trial Court and, thus, affirmed the decree dismissing the plaintiff's suit. However, while disposing of the appeal it was also observed :

(3.) During the pendency of this appeal, the plaintiffs moved Civil Miscellaneous Application No. 2550-C of 1985 under Order 23 Rule 1, Code of Civil Procedure (hereinafter called the Code), for the withdrawal of the plaint with permission to file a fresh suit on the same cause of action.