Order XXIII Rule 1 of the Civil Procedure Code gives the plaintiff an absolute right to withdraw the suit, and once the suit is sought to be withdrawn, the petitioner has no right to challenge the impleadment.

ORDER :

1. The present petition is filed by being aggrieved and dissatisfied with the order dated 11.05.2022, passed by the 9th Addl. Civil Judge, Mirzapur, Ahmedabad (Rural) in Regular Civil Suit No. 300 of 2005 below Exh.70 and 143, whereby the trial Court has allowed the third party application filed by Sakariben Khodaji Shivaji Thakor-respondent No. 6 herein for joining as plaintiff in the abovementioned suit.

2.1 Brief facts of the case are as such that the present petitioner had filed a Regular Civil Suit No. 300 of 2005 for permanent injunction and declaration of the property situated at Village: Vejalpur, bearing Revenue Survey No. 988 (New Survey No. 315 - on renumbering when transferred the said property to Jodhpur Gam, Ahmedabad) admeasuring 5 acre 36 gutha. It is the case of the petitioner that the present petitioner is having the possession of the land. Moreover, the petitioner had prayed that the respondents are not having any legal right in the above mentioned property and in that regard revenue entry being Nos.418, 2698 and 8216 are also required to be cancelled as they were wrongly mutated.

2.2 Further, it is the case of the petitioner in the present petition that thereafter the third party-respondent No. 6 herein had filed an application below Exh.70 and 143 for condonation of delay in joining party and application for joining party as a plaintiff respectively in Regular Civil Suit No. 300 of 2005, which was erroneously allowed vide order dated 11.05.2022 by the trial Court.

2.3 It is further the case of the petitioner in the present petition that the respondent No. 6 is not the daughter of deceased-Khodaji Shivaji and also pedigree, of Village Dhansol and affidavit as heir of (Daughter of fulaji) Fulaji Becharji, shows that respondent No. 6 herein is not the daughter of the present petitioner's father. On the basis of that pedigree, of late Fulaji Becharji, who is real father of respondent No. 6-Sakariben had been sold away the property situated at Village: Por, dist: Gandhinagar and in exchange of consideration along with the other legal heirs respondent Nos.6.1 to 6.3. Moreover, the certificates are not in collaboration with other documentary proof, which was also obtained through DNA Certificate from a private Laboratory at Delhi to establish the heirship of respondent No. 6- Sakariben herein. Further, it is the case of the petitioner in the present petition that the present petitioner had filed an application under section 340 of Cr.P.C. below Exh.213 for registering the complaint and initiation of criminal proceedings against the third party.

2.4 It is the case of the petitioner in the present petition that respondent No. 6-Sakariben herein has also filed an application in another suit filed by respondent Nos.1 to 5 i.e. Regular Civil Suit No. 622 of 1992 for permanent injunction of property bearing Jodhpur Survey No. 988 (New Survey No. 315) situated at Moje: Village: Vejalpur admeasuring 5 acre 36 gutha, whereby the respondent No. 6 had filed an application at Exh.241 for delay condonation and joining party in Regular Civil Suit No. 622 of 1992 and learned trial Court has rejected the third party application vide order dated 18.03.2021 and thereafter, the respondent No. 6 had filed Special Civil Application No. 5056 of 2022 before this Court, which was pending and the suit proceeding of Regular Civil Suit No. 622 of 1992 is stayed. It is case of the petitioner that both the suits are between the same parties and identical in nature. It is also further the case of the petitioner that by way of forged pedigree of Village Dhansol, third party is joined in the suit.

2.5 It is further the case of the petitioner that the respondent No. 6 is not the rightful legal heir of the present petitioner, however, it transpires from the record itself that during the pendency of the petition, the present petitioner as well as respondent Nos.1 to 5 had filed an application to withdraw the suit proceeding below Exh.226 as well