B CHENCHURAM NAIDU Vs. MUHAMMAD BAHAVUDDIN SAHIB

JUDGEMENT

(1.) This was a suit in ejectment. The plaintiff, the appellant here, claimed to be the owner of the suit land and entitled to eject the defendant from the superstructure on it. The learned City Civil Judge dismissed the appellant's suit. A suit had been filed in 1924 in the same Court, O.S. No. 422 of 1924, by the appellant against another person as the 1 defendant and the respondent here as the 2nd defendant to eject them. The suit was withdrawn as against the respondent here by the appellant but at the time when he withdrew the suit he did not ask for liberty to file a fresh suit against the respondent. The learned City Civil Judge held that that was a statutory bar to the filing of the suit under appeal against the respondent. Upon that ground he dismissed the suit. He also went into the merits of the case and held that the appellant failed to prove his title and upon that ground also he dismissed the suit.

(2.) The first thing we have got to consider here is whether the appellant was prevented from filing the suit under appeal against the respondent by reason of the fact that he withdrew his claim against the respondent in the previous suit without reserving his right to file this suit. That was a suit in which there were two defendants. The 1 defendant was a tenant paying rent to the plaintiff and the respondent was also made a party to the suit. The respondent put in a written statement in which he put the plaintiff to proof of his title and alleged that he had not been given a written notice to quit which was a fact. During the hearing of the case, the appellant withdrew his suit against the respondent thus exonerating him and proceeded with his suit against the 1 defendant. The learned City Civil Judge who tried that suit gives an account of what took place in his judgment as follows: Plaintiff has now exonerated 2nd defendant. The suit against him is accordingly withdrawn, but liberty to litigate his right, if any, in respect of the suit house is reserved to him.

(3.) A separate order was passed subsequently some days afterwards and it runs as follows: Plaintiff exonerates 2nd defendant. Suit against 2nd defendant is withdrawn. No costs. 2nd defendant's right to litigate his claim in this house, if any, is reserved to him.