RAJ KUMARI DEBI Vs. NRITYA KALI DEBI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for recovery of possession of a sixth share of 5 collars of land. The plaintiff alleges that the subject-matter of dispute belonged to one Prandhone Chakrabutty who had three sons, Mirtunjoy, Bholanath and Tarak Nath. According to the plaintiff, the property was inherited by all the three sons in equal shares; after the death of Mirtunjoy in 1853, his share passed to his widow Monmohini and upon the death of the latter on the 22 July, 1892, it vested in equal halves in her daughters, the plaintiff and her sister Bhabakali, the 4 defendant in the suit. The first two defendants, the sons of Tarak Nath, practically support the story of the plaintiff, though they plead limitation and deny her title. The third defendant, the daughter of Bholanath, is the real contestant. She pleads limitation and sets up an exclusive title on the allegation that her father had acquired title to the property by virtue of a gift from his mother who was the real owner. The substantial question in controversy between the parties, therefore, was, whether the disputed properly belonged to Prandhone Chakrabutty or to his wife, and if to the latter, whether she had made a gift thereof in favour of her son Bholanath. The original Court found that the property belonged to Prandhone and made a decree in favour of the plaintiff. Upon appeal, the learned District Judge has reversed this decision and dismissed the suit.

(2.) The plaintiff has now appealed to this Court, and on her behalf the decision of the District Judge has been challenged upon two grounds, namely, first, that the District Judge was in error when he held that the plaintiff unconditionally withdrew the suit in the Court of first instance on the 13 June 1906, and, secondly, that the decision of the District Judge is based upon evidence which is not admissible in law and had been rightly rejected by the original Court. These positions have been controverter by the defendant and it has further been argued that there is an independent finding by the District Judge upon the question of limitation sufficient to justify the dismissal of the suit.

(3.) In so far as the first of the grounds urged by the appellant is concerned, it must clearly succeed. On the 13 June 1906, the plain tiff made an unconditional petition to with draw her suit. She subsequently changed her mind and before any order of withdrawal was made, prayed to be permitted to re-call her petition and to proceed with the suit. The Court allowed her to do so. On this it has been argued that it was not competent to the Court to make this order and that her original petition was conclusive. In our opinion, this contention is not well- founded, and it was competent to the plaintiff to re-call her petition of withdrawal at any time before the final order had been passed. The view we take is supported by the case of Ram Bhuros Lall V/s. Gopee Beebee 6 A.I.R. 66. The case of Shumsher Bahadur V/s. Mahomed Ali 2 Agra H.C.R. 158, if it really lays down the contrary rule, cannot be supported on principle. We may add that the observations in Mahant Biharidasjz V/s. Parshotam Das 32 B. 345 : 10 Bom. L.R. 293, upon which reliance was placed by the respondent, have no direct baring upon the question raised before us. The first ground urged on behalf of the appellant must consequently prevail.