Heard the learned counsel for the appellant and learned counsel for the respondents. The appellant was defendant No.3 in a suit for partition filed by the Respondent No.1. The respondent No.2 was the head of the family and appellant was his daughter.

2. During pendency of the partition suit, the first respondent, it is alleged by the appellant, had in collusion with the other respondents sought to withdraw the suit in order to defeat the rights of the present appellant, and without determining and ignoring the counter claim of the appellant and without allowing transposition of the appellant as plaintiff in the above suit, the trial court had allowed withdrawal of the suit and therefore aggrieved by the same, the present appeal is filed.

3. The learned counsel would submit that the law on the point is no longer resintegraand it has been held by a Division Bench of this court in, Gowramma vs. Nanjappa, ILR 2001 KAR 4853, as to the procedure that was required to be followed by the trial court in such a situation, and whether the trial court could have allowed the application, IA No.19, filed by the plaintiff under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, (here