1. Being aggrieved by judgment and decree dated 24.04.1992 passed by Civil Judge Jr. Dn., Saoner, dismissing the suit filed by the appellant-plaintiff and confirmed in Reg. C.A. No.197/1992 passed by 2nd Addl. District Judge, Nagpur on 06.03.2000, the unsuccessful plaintiff had filed the instant second appeal. The learned counsel for the appellant, assailing the impugned judgment and decree passed by the lower appellate Court submitted that the lower appellate court has considered only the point of maintainability of second civil suit holding that the second civil suit in the same subject matter was not maintainable and thus dismissed the appeal preferred by the present appellant. She thus submitted that the lower appellate court did not discuss the single point on merits of the suit and dismissed the appeal on the sole ground. According to her, the lower appellate Court being the court of facts and the said appeal being one of right, the lower appellate court was under a duty to decide the suit on merits. Even otherwise, according to her the second suit was maintainable in the light of law in relation to such type of suits.

2. Per contra, Mr. Zoting learned counsel for the respondents, supported the impugned judgment and decree and argued that there are concurrent findings of facts as well as question of law recorded by both the courts and even if the lower appellate court has not discussed about merits of the matter, the learned trial Judge has recorded a detailed judgment on the merits of the matter and, therefore, the judgments recorded by both the courts below can well be supported and consequently there is no need to interfere in the matter in the second appellate jurisdiction. He, therefore, prayed for dismissal of the suit. An interesting question of law has arisen in this matter and, therefore, it is imperative to notice certain facts.

3. The present appellant-plaintiff had filed Reg. C. S. No. 131/1974 in the same subject matter about partition of the suit property. During the pendency of the said suit, the present appellant-plaintiff had filed application Exh.77 for withdrawal of the said Reg.C.S. No. 131/1974 stating therein that the dispute in the suit was settled out of the Court between the parties who are closely related and, therefore, there was a compromise and the plaintiff did not want to prosecute the suit against the defendants. It was also stated that nothing remained to be received from the defendants. It is an admitted fact that the said suit was withdrawn without any liberty for filing the second suit. The appellant-plaintiff then filed second suit i.e. the present suit being Reg.C.S.No.159/1985. In the second suit, the plaintiffs averred that Panchayat was held on 10.06.1984 at Mouja Malegaon after death of Mahadeo Nikose all the more so because the partition was never made before or after the death of Mahadeo despite the withdrawal of the earlier Reg.C.S. No. 131/1974 and, therefore, the cause of action arose on 10.06.1984 when the defendants refused to give partition. It is in this background the question arose; whether the second suit filed by the appellant-plaintiff after withdrawing the first suit without any liberty from the court, in relation to the partition of the same suit properties was maintainable or not? The learned appellate Court has held that the said suit was not maintainable and would be hit by principles of Order 23 Rule 1 of the Code of Civil Procedure namely; withdrawal of the suit without any liberty.

4. Upon hearing, learned counsel for the rival parties and upon considering various decisions cited by learned counsel for the appellant, following substantial question of law arises for my consideration:

“(i) Whether after withdrawal of the first suit Reg. C. S. No. 131/1974 unconditionally or without any liberty from the court in the matter of partition of the suit properties, the appellant-plaintiff could file second Reg. C. S. No.159/1985 for partition on the ground that i