A defendant seeking a share in a partition suit is in the position of a plaintiff and has the right to oppose the withdrawal of the suit, and can be transposed as a plaintiff to continue the proceedings.

( 1 ) THE appellant herein was the fifth defendant in O. S. No. 5/1991 on the file of the Civil Judge, Bangalore Rural District. First respondent was the plaintiff. Respondents 2, 3, 4, 5, 6, 7, 8 and 9 were respectively defendants Nos. 1, 2, 3, 4, 6, 7, 8 and 9 in the suit. For convenience, parties will be referred to by their ranks in the suit.

( 2 ) THE first respondent (plaintiff) filed the said suit for partition and separate possession of his share in the joint family properties consisting of 19 items of lands described in schedule A and three items of Houses described in Schedule-B to the plaint. The said suit was filed against his mother (first defendant) three brothers (defendants 2 to 4) and sister (fifth defendant ). Subsequently, defendants 6 to 9 were impleaded on the ground that they were claiming rights over the suit schedule properties.

( 3 ) THE suit as contested by the defendants. The fifth defendant in her written statement submitted that she was entitled to a one-sixth share in the suit schedule properties and prayed for partition and separate possession of her one sixth share by paying the necessary court-fee. The first defendant also filed a written statement seeking partition and separate possession of his share by paying necessary court-fee.

( 4 ) ELEVEN Issues were framed on 11-1-1995. Two additional Issues were framed on 31-10-1995 and another two additional issues were framed on 18-8-1997. The parties also let in evidence. The plaintiff was examined as P. W. 1. On behalf of the defendants, D. W. 1 to D. W. 3 were examined. Exp1 to P21 were marked on behalf of plaintiff and Ex. D1 to D36 were marked on behalf of defendants. The matter was posted for arguments.

( 5 ) AT that stage, a joint memo was filed by the plaintiff and the defendants 2 to 4 stating that they had settled the dispute in a Panchayat. Plaintiff stated that in view of the settlement reached out of Court, he was not pressing the suit and prayed for dismissal of the suit. The counsel for defendants 7 to 9 also signed the said memo. The first defendant and the fifth defendant filed objections to the said memo. In her objections dated 17-11-1987, the fifth defendant specifically stated that the memo was filed to defeat her rights and that in a suit for partition, each defendant who seeks separate possession of his or her share is also in the position of a plaintiff and therefore, plaintiff in the suit cannot be permitted to withdraw the suit and thereby deny her legitimate share. After hearing the parties on the said memo, the trial Court by order dated 3-2-1998 accepted the memo, overruled the objections and dismissed the suit was desired by the plaintiff. The Court below proceeded on the basis that the claim of the fifth defendant for partition and separate possession of her share amounts to a counter claim and a counter claim is only permissible in a money suit and not in a suit for partition and therefore, the objections of the defendants 1 and 5 to the memo for dismissal were not sustainable. Feeling aggrieved, the fifth defendant has filed this appeal.

( 6 ) THE appellant (fifth defendant) has, in this appeal reiterated her contention that in a suit for partition, each defendant who also seeks partition and separate possession, is in the position of a plaintiff and without the consent of all the plaintiffs, a suit cannot be dismissed and when she objected to the withdrawal of the suit, the Court could not have dismissed the suit as settled out of Court. It is also contended that at all events, even if the plaintiff was not interested in pursuing the suit, the Court ought to have transposed her as the plaintiff and transposed plaintiff as a defendant in the suit and proceeded with the matter.

( 7 ) ON the other hand, learned counsel appearing for the respondent No. 1 (plaintiff) submitted that the plaintiff in a suit is the dominus litis and he has the right and freedom to withdraw the suit filed by him or seek d