IMPORTANT POINT
A plaintiff cannot file a fresh suit on the same subject matter after withdrawing a previous suit without obtaining court permission, as per CPC provisions.

JUDGMENT :

The plaintiff is before this Court in the Regular Second Appeal assailing the legality and correctness of the judgment and decree dated 24.04.2010 in RA No.75/2007 on the file of the I Additional District Judge, Gulbarga (Hereinafter referred to as ‘first Appellate Court’ for the sake of convenience), confirming the judgment and decree dated 28.07.2002 in O.S. No.38/2003 on the file of the Civil Judge (Sr.Dn.) at Aland (Hereinafter referred to as ‘trial Court’ for the sake of convenience), whereby, the suit seeking for declaration and possession was dismissed by the Courts below.

2. Parties herein are referred to as per their rank before the trial Court for the sake of convenience.

3. This Court while admitting the appeal on 31.08.2020 framed the following substantial questions of law, which reads as under:

“i. Whether the Courts below committed an error in construing the order dated 12.08.1981 passed by the Land Tribunal, Aland as a grant to the family or whether it was self-acquisition of the plaintiff?

ii. Whether withdrawal of O.S. No.132/1990 debarred the plaintiff from filing a fresh suit?”

4. Sri Ameet Kumar Deshpande, learned Senior Counsel for the appellant, Sri Vikram Vijayakumar and Sri D. P. Ambekar, learned counsels for the respondents are heard on the substantial questions of law framed by this Court.

5. It is the argument of Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for the appellant, that withdrawal of the suit in O.S. No.132/1990 was in the nature of the prosecuting the other suit which was filed for partition and separate possession and the withdrawal of the suit in O.S.No.132/1990 is not abandonment of the claim of the plaintiff and the plaintiff is not precluded from filing the fresh suit. Taking this Court to Order XXIII Rule 1 and Rule 1(4)(a) of Civil Code of Procedure (for short ‘the CPC’), the decision of Himachal High Court in the case of Smt. Nirmala Vs. Harisingh, (2001) Himachal Pradesh 1 and Mumbai High Court in the case of Surjansingh v. Smt. Jasbir Kaur and Ors., 2008 A I H C 1328 learned Senior Counsel submits that the subject matter not only includes the property, but also the cause of action and the suit with a “different cause of action” is not barred under Order XXIII Rule 1(4)(a) CPC, even though the suit is in respect of the same property. Learned Senior Counsel submits that O.S. No.207/1995 (present suit) is filed in light of the intervening facts, which gives the appellants/plaintiffs a new cause of action. Learned Senior Counsel submits that the trial Court answered issue No.7 holding that the present suit is not barred by provision of Order XXIII Rule 1 and Rule 1(4)(a) CPC and the first Appellate Court, without assigning any reasons, has held that the suit is barred under Order XXIII Rule 1(4)(a) CPC and the substantial question of law No.2 needs to be answered in favour of the appellant/plaintiff.

6. Regarding substantial question of law No.1, learned Senior Counsel taking this Court to Ex.D.10 and D.11 Form No.1 filed by Gurubasayya, the Mathadipathi for grant of occupancy rights, submitted that the application filed by Gurubasayya is in his individual capacity as tenant for his own benefit and not as a holder of the Matha. The re-grant to Gurubasayya is in his individual capacity and the suit lands were personally cultivated till his death. Gurubasayya died unmarried and the plaintiff being the real brother succeeds to property of Gurubasayya, as the grant in favour of Gurubasayya was in his individual capacity and not as Mathadipathi. Leaned Senior Counsel taking this Court to Sections 25 to 28 of the Hindu Succession Act 1956 (herein after referred to as “the Act” for short) submits that the said provisions of the Act does not disentitle any person who becomes a Sanyasi from acquiring any property.

7. Urging these grounds learned Senior Counsel submits that the substantial questions of law need to be answered in faovur of the appellant/plaintiff.

8. Per contr