NETAR SINGH AND ORS. Vs. MOHAN AND ORS.

JUDGEMENT

(1.) BY means of this petition, the Petitioners (here -in -after referred to as the Plaintiffs) have challenged the order dated 16.07.2003 passed by the learned Sub Judge, Mandi, whereby the application filed by the Petitioners for withdrawing the suit with permission to file fresh one on the same cause of action has been rejected.

(2.) THE undisputed facts are that Defendants No. 2 and 3 filed a suit against Defendant No. 1 claiming that they alongwith Defendant No. 4 are in occupation of the suit land and Defendant No. 1 in whose name the suit land is entered has no connection with the same. The Plaintiffs filed an application under Order 1 Rule 10 in the said suit, which was rejected and according to the Plaintiffs they were directed to file a separate suit to establish their rights. Thereafter, the Plaintiffs filed the present suit claiming that though Defendant No. 1 is shown as owner in possession of the suit land and Defendants No. 2 to 4 in their suit are claiming to be owners in possession of the suit land, in fact, the suit land is in possession of the Plaintiffs since the time of their ancestors and therefore, it was prayed that a decree for declaration be passed that the suit land is in the possession of the Plaintiffs and they have become owners of the same by way of adverse possession and the Defendants be restrained from interfering in the possession of the Plaintiffs over the suit land.

(3.) ORDER 23 Rule 1(3) of the Code of Civil Procedure has no application to a case like the present one. Under the said provision, the suit filed by the Plaintiffs must fail by reason or some formal defect or there should be other sufficient grounds for allowing the Plaintiffs to institute a fresh suit for the subject matter of a suit or part of the claim. The Plaintiffs want to now change the whole nature of the suit. Earlier, they were claiming that though the suit land was owned by Defendant No. 1 they have become owners of the same by way of adverse possession. Now, they want to derive title under one Mohan Singh S/o Kundan. They cannot be permitted to do so and the application was rightly rejected by the trial Court.