Prasanta Kumar Deka, J.

Heard Mr. S.J. Sarma, learned counsel appearing on behalf of the petitioner/respondent and also heard Mr. Sheeladitya, learned counsel appearing on behalf of the opposite party/appellant.

2. This is an application under Order 23, Rule 3 (a) and (b) R/W Section 151 of the CPC whereby the petitioner/respondent has sought for withdrawal of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 Kamrup, Guwahati with liberty to file a fresh suit and/or alternatively be pleased to pass order for analogous trial of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 and Title Suit No. 110/06 pending in the Court of learned Civil Judge No.1.

3. The petitioner as the plaintiff filed Title Suit No. 58/2003 against the present/opposite party as the defendant praying for declaration of his right title and interest and confirmation of possession and also for permanent injunction. The defendant/opposite party raised the plea in his written statement that the plaintiff had no possession over the suit land along with the plea that the suit was bad for non-joinder of necessary parties and as such prayed for dismissal of the suit of the plaintiff/petitioner. During the pendency of the suit, the petitioner as the plaintiff in the Title Suit No. 58/2003 filed an application for amendment of the plaint on 27.11.2003 to introduce the prayer for recovery of possession of the suit land which was rejected by the Trial Court as the evidence of the parties in the said suit had already started. The plaintiff/petitioner did not challenge the said order of rejection of amendment petition and went ahead with the suit. The Trial Court vide Judgment dated 30.09.2005 dismissed the suit on the ground that the same was barred by law of limitation and the suit was bad for non-joinder of necessary parties. The petitioner thereafter preferred Title Appeal No. 10/2005 and the court below vide judgment dated 30.06.2009 set aside the judgment and decree passed by the Trial Court and remanded the same to the Trial Court to decide the issues and pass a fresh judgment. On such remand, the Trial Court vide judgment and decree dated 29.11.2010 dismissed the suit holding that the present petitioner had failed to establish that he got possession of the suit land at the time of execution of the sale deed and held that the plaintiff had no possession over the suit land. It was also held that the declaration of the Title of the petitioner also could not be granted as there was no further relief for recovery of khas possession.

4. Being aggrieved the petitioner again preferred Title Appeal No. 05/2011 in the Court of Additional District Judge No. 1 Kamrup at Guwahati and the said court vide judgment dated 16.10.2015 set aside the judgment passed by the Civil Judge No. 3 Kamrup at Guwahati in Title Suit No. 58/2003 with a direction for a fresh trial and also granted the leave to the petitioner to seek for the relief of recovery of khas possession of the suit land and directed the Trial Court to consider the same during the re-trial of the suit.

5. The present opposite party preferred the connected SAO 02/2016 as the appellant thereby challenging the judgment and order dated 16.10.2015 passed by the Additional District Judge No. 1, Kamrup (M) passed in Title Appeal No. 5/2011 remanding the case for fresh trial. The said appeal has already been admitted vide order dated 01.04.2016 and the petitioner as the respondent had already entered appearance in the said appeal. The petitioner who is the respondent in the said appeal has preferred this petition at this appellate stage for withdrawal of the Title Suit No. 58/2003 after 14 years of litigation. It is also pertinent to mention here that the petitioner had filed Title Suit No. 110/2006 because of accrual of fresh cause of action after filing of Title Suit No. 58/2003 and in the said suit the evidence of the plaintiff side had already been completed. Under such circumstances an