A plaintiff cannot be granted permission to withdraw a suit under Order 23 Rule 1 CPC at the appellate stage if it would result in the deprivation of the benefits of the findings of the courts below which had accrued to the defendants.

K. RAMACHANDRA RAO, J.

( 1 ) THE plaintiff who is the appellant in the above second appeal has filed this petition C. M. P. 5380/1977 for peimission to withdraw the suit o. S. No. 705/1971 on the file of the court of the 4th Assistant Judge, City civil Court, Hyderabad, which is the subject matter of the above second appeal with liberty to pursue the other suit viz. , O S. No. 360/1976, on the file of the 6th Assistant Judge, City Civil Court, Hyderabad. The petition is purported to be filed under Order 23, Rule I read with Section 151 C. P. C.

( 2 ) THE petitioner (Plaintiff) filed the suit O. S. No. 705/71 on the file of the Court of the 4th Assistant Judge, City Civil Court, Hyderabad, for a permanent injunction restraining the defendants, their agents and servants from interfering with his peaceful possession and enjoyment of the suit schedule land admeasuring 1483 square yards equivalent to 1245-72 square metres insurvery No. 6 situated at Mellapalli, Humayaonagar, Hyderabad. The plaintiff set up title to the said land and also claimed to be in possession of the same on the date of filing of the suit but filed the suit only for a perpetual injunction.

( 3 ) THE defendants on the other hand set up a plea that the suit property belongs to the Deity Sri Venkateswara Swami varu situate in humayunnagar, Hyderabad and denied the title and possession of the plaintiff.

( 4 ) THE trial Court framed the following issues: 1) Whether the plaintiff was in possession of the suit property on the date of the suit? 2) Whether the suit is properly valued and this court has no pecuniary jurisdiction to entertain the suit? 3) Whether Lord Venkateswara Swamy and the Endowments department are necessary parties to the suit? 4) Whether the defendants are entitled to exemplary costs? 5) To what relief? on a consideration of the evidence, the trial court held on issue No. 1, that the plaintiff was in possession of the suit property on the date of the suit; on issue No. 2 that the suit was properly valued and that the trial court had jurisdiction to entertain the suit and on issues No. 3, that the Deity lord Venkateswaraswamy and the Endowments Department, were not necessary parties to the suit. The question of awarding exemplary costs to the defendants did not arise. In view of the findings on issues 1 to 3 the suit was decreed with costs.

( 5 ) AGAINST the said judgment and decree, the defendants preferred an appeal A. S. 181/1974, to the court of the Chief Judge, City Civil Court hyderabad, and the learned Chief Judge, by his Judgment dated 4-11-1975 found that (he plaintiff was not in possession of the suit property on the date of the suit, that the alleged interference by the defendants with the possession of the plaintiff was not true, that the plaintiff was not entitled to the permanent injunction, that the suit as framed, was not maintainable and that it was held to be not bad for non-joinder of the Temple or the endowments department. On those findings the learned Chief Judge, allowed the appeal and dismissed the suit with the costs of the defendants 1, 2, 4 and 5 throughout.

( 6 ) AGAINST the said Judgment afld decree, the plaintiff has filed the above Second Appeal 10/1976.

( 7 ) THE plaintiff appellant has now filed this petition CMP. 5380/ 1977 for permission to withdraw the suit with liberty to pursue another suit o. S. 360/1976, on the file of the 6th Assistant Judge, City Civil Court, hyderabad. In the affidavit filed in support of this petition, the plaintiff stated that he had been advised to file a separate suit and he filed the suit o. S. 360/1976, and that the same is pending before the 6th Assistant Judge city Civil Court, Hyderabad, and as he had filed a comprehensive suit, he should withdraw the present suit out of which this Second Appeal arises.

( 8 ) THE 2nd defendant-2nd respondent filed a counter-affidavit opposing the said petition for withdrawal of the suit contending that the defendants should not be deprived of the b

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