Only the original plaintiff is precluded from filing a fresh suit after dismissal in default; those claiming under the plaintiff are not affected. Genuine circumstances justified withdrawal from the current suit.

JUDGMENT :

Nawneet Kumar Pandey, J.

I have already heard the learned counsel for the petitioner/plaintiff as well as the learned counsel for the opposite parties/defendants.

2. This revision application is directed against the order dated 02.06.2012 passed in Title Suit No. 147 of 2012 by the 1^st Sub-Ordinate Judge, Chapra, Saran.

3. The original petitioner/plaintiff filed an application under Order XXIII Rule 3 of the Code of Civil Procedure (for short ‘the Code’) for withdrawal of the suit with liberty to file a fresh suit which was rejected by the complex and composite order, which is impugned herein. It also appears that vide the same order, the leaned Sub- Ordinate Judge has disposed of the application filed by respondent no.2 under Order VII Rule 11 of the Code, praying therein to reject the plaint as it was barred under Order IX Rule 9 of the Code, but the impugned order does not disclose explicitly whether that application was disposed of or not. The operative portion of the impugned order shows that the suit of the plaintiff was dismissed and at the same time the application of the plaintiff/petitioner under Order XXIII Rule 3 of the Code for withdrawal of the suit with liberty to file a fresh suit was rejected.

4. The original plaintiff/petitioner Indra Pratap Singh @ Lalji Babu filed Title Suit No. 147 of 2012 on the basis of a sale deed executed by late Harihar Chandra Ghosh in favour of the petitioner on 10.05.2006 in respect of the property in suit.

5. The case of the petitioner/plaintiff is that the original tenant of the disputed property late Umesh Chandra Ghosh had acquired several properties at Chapra from his own income and he was governed by Dayabhaga School of Hindu Law. He also acquired properties at Murshidabad, Giridih, Bhagalpur and Chapra. He acquired a piece of land, measuring 18 katha at Chapra which was situated by the southern side of the PWD road. The name of late Umesh Chandra Ghosh was recorded in the Serista of the Ex-landlord. He had two wives. He had two sons from the first wife and five sons from the second wife. Umesh Chandra Ghosh died in December, 1944, leaving behind his above-mentioned seven sons, who inherited his entire properties. The names of the two sons from the first wife of Umesh Chandra Ghosh are Sharat Chandra Ghosh and Suresh Chandra Ghosh. Similarly, the five sons from his second wife were Shanti Chandra Ghosh, Subodh Chandra Ghhosh, Sudhir Chandra Ghosh, Basant Chandra Ghosh and Dr. Harihar Chandra Ghosh (the vendor of the plaintiff/petitioner). Shanti Chandra Ghosh had two sons namely Prashant Kumar Ghosh and Bani Brat Ghosh and four daughters namely, Sushma Rai, Asima, Tripti Mitra (the mother of opposite party no.1) and Mamta Das. The wife of Prashant Kumar Ghosh is Enachi Ghosh. They have one son Sukant Ghosh and a daughter Arpita Ghosh. Bani Brat Ghosh has a son Babu Ghosh and a daughter Sapra Ghosh. Sushma Rai has two daughters Sutapa Ghosh and Sumidha. Asma died issueless. Tripti Mishra (also known as Trapti Mitra) had a daughter Rupa Sinha (opposite party no.1). Mamta Das has a son Babun. Subodh Chandra Ghosh executed a sale deed dated 25.03.1953 in favour of his brother Sudhir Chandra Ghosh and Subodh Chandra Ghosh settled in Murshidabad.

6. As such, 18 katha of land with two houses thereon fell into the share of Shanti Chandra Ghosh, Sudhir Chandra Ghosh, Basant Chandra Ghosh and Dr Harihar Chandra Ghosh. Jamabandi in respect thereof was created in their names and Register-II was opened in their names. Shanti Chandra Ghosh being the elder brother was karta of the joint family. He was an advocate in C