The main legal point established in the judgment is the restriction on the absolute right to withdraw a suit for partition, the inapplicability of the Benami Transactions (Prohibition) Act, 1988, and the principles of Hindu Law and the Hindu Succession Act in determining ownership and partition of properties.

T.V. Nalawade, J.

The appeals are filed against judgment and decree of Regular Civil Appeal No.39/2000 and 42/2000 which were pending in the Court of the IVth Ad-hoc District Judge, Aurangabad. Special Civil Suit No.50 of 1971 was filed by Basantsing, appellant from second proceeding for relief of partition and separate possession of movable and immovable properties. The suit was partly decreed in his favour by the trial Court. Both, the plaintiff and defendant No.1 (appellant from the first proceeding) challenged the judgment and decree of the trial Court by filing aforesaid two civil appeals in District Court. The District Court has confirmed the decision of the trial Court. Defendant No.2 is the sister of the appellants from both the proceeding. Heard learned counsel of all the sides.

2. In these appeals original plaintiff and defendant No.1, the brothers have filed compromise document and they have prayed for disposal of both the appeals and also the original suit as withdrawn. This Court has passed order to the effect that the prayer made by the plaintiff and defendant No.1 will be considered at the time of consideration of both the appeals on merits. In view of this order, learned counsels for all the sides were heard. The trial Court has declared that defendant No.2, sister, is entitled to one-third share in the three properties which are mentioned in the operative part of the judgment delivered by the trial Court.

3. For withdrawal of the suit, provisions like Order 23 Rule 1 of the Code of Civil Procedure need to be used. For withdrawal of the suit, ordinarily no permission of Court is necessary if plaintiff has no desire to have liberty to file fresh suit. Ordinarily that permission is given on the grounds mentioned in Order 23 Rule 1 of the CPC. From the grounds it can be said that it is ordinarily to be used before decision of the suit. Though there is such provision, when the suit is filed for relief of partition, the things are different. In such a suit plaintiff and defendant are party of equal status. In the case reported as 2003 CJ (SC) 195 : 2003 (2) All MR 1126 (S.C), (Chandramohan Ramchandra Patil v. Bapu Koyappa Patil) at para 13 the Apex Court has made following observations :

"13. This argument has no merit. In a suit for partition, plaintiff and defendants are parties of equal status. If the right of partition has been recognised and upheld by the Court, merely because only some of the plaintiffs had appealed and not all, the Court was not powerless. It could invoke provisions of Order 41Rule 4 read with Order 41 Rule 33 of Code of Civil Procedure. The object of Order 41 Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant. (See Ratanlal v. Firm Lalman Das, AIR (1970) SC 108).

4. In view of the observations made by the Apex Court in the case cited supra, this Court has no hesitation to hold that the plaintiff from partition suit has no absolute right to withdraw the suit even though the suit has not reached stage of decision. In the present case there is decree given by the trial Court not only against the plaintiff but against defendant No.1. The Trial Court has declared that in the three properties, defendant No.2 has one-third share. Thus, the defendant No.2 can get benefit of the judgment and decree. The appeal is continuation of suit and so withdrawal of appeal in such a case is also not an absolute right of plaintiff. Further, when withdrawal would deprive a defendant to get fruits of the decree given by the trial Court, the appellate Court is not expected to permit the suit to be withdrawn at appellate stage. This Court has gone through the terms of settlement between the two brothers and this Court has no hesitation to observe that the two brothers want to depr