( 1 ) THIS appeal is filed against the judgment and decree in O. S. No. 33 of 1991 on the file of the Court of the Senior Civil Judge, cuddapah. The appellant is the third defendant. While the appeal is pending, he filed an application being C. M. P. No. 12743 of 2000 praying this Court to dismiss the appeal as not pressed. In the affidavit accompanying the C. M. P. , he stated that due to personal reasons, the appellant does not want to prosecute the appeal.

( 2 ) THE second respondent herein who is the first defendant in O. S. No. 33 of 1991 filed CMP. No. 12986 of 2000 under order 23 Rule 1-A read with Section 151 of the Code of Civil Procedure, 1908 ( cpc for brevity) praying this Court to transpose him as appellant in the place of the original appellant. When C. M. P. No. 12743 of 2000 filed by the appellant came up before me, the learned Counsel for the second respondent/first defendant objected for dismissing the appeal as not pressed and requested that the application filed by the second respondent being C. M. P. No. 12986 of 2000 may be taken up for hearing and disposal. Accordingly, I have heard the learned Counsel for the second respondent.

( 3 ) THE appellant in this appeal had filed o. S. No. 117 of 1991 on the file of the Court of the Senior Civil Judge, Cuddapah for declaration of title in respect of the suit A schedule property and for mesne profits. His brother Madaka Balaiah who is the first defendant in O. S. No. 117 of 1991 filed o. S. No. 33 of 1991 before the same Court for partition of suit schedule property into four shares and allotting one such share to him. In the suit filed by the appellant herein, besides Madaka Balaiah, Madaka narayana and Madaka Ramana, the other brothers of the appellant are the defendants. In the suit filed by Madaka Balaiah being o. S. No. 33 of 1991, Madaka Ramana, madaka Narayana and the appellant herein are the defendants. The suit filed by the appellant being O. S. No. 117 of 1991 for declaration of title was dismissed and the suit filed by Madaka Balaiah being O. S. No. 33 of 1991 was decreed declaring that the plaintiff (Balaiah) and other three defendants are entitled to 1/4th share each in the suit schedule property. The trial court passed a common judgment dated 4-2-1998 in O. S. Nos. 33 and 117 of 1991.

( 4 ) AGGRIEVED by the judgment and decree in O. S. No. 117 of 1991, the appellant herein filed A. S. No. 1895 of 1998. Later, the said appeal suit was dismissed as withdrawn on 21-8-200 0. 4a. This appeal being A. S. No. 821 of 1998, as stated earlier, is against the judgment and decree in O. S. No. 33 of 1991 by Madaka Anjaneyulu who is the third defendant, who had also filed O. S. No. 117 of 1991. As already noticed, in O. S. No. 33 of 1991. Madaka Ramana, Madaka narayana and Madaka Anjaneyulu (appellant herein) are the defendants. One of the defendants has filed the appeal and now he filed a CMP praying to dismiss the appeal as not pressed.

( 5 ) THE second respondent/first defendant opposed withdrawal of appeal. He states that when the appeal was filed, passing of the final decree was stayed, that madaka Balaiah who is in possession of the property is resorting to acts of waste to his detriment and that he filed C. M. P. , no. 16612 of 1999 for appointment of a receiver which was ordered, whereupon the receiver has taken possession of the suit land and auctioned the same for the present year. If the CMP filed by the appellant is allowed, the rights and interest of the second respondent would be affected and the application for dismissing the appeal is filed in collusion with other respondents to deprive the second respondent of his legitimate claim. Therefore, the second respondent prays to transpose him as appellant and complete adjudication of all questions involved in the suit so as to avoid multiplicity of proceedings.

( 6 ) THE point for consideration is whether the second respondent/first defendant is entitled to file an application under