1. An order passed on an application under Order XXIII, Rule 1 (3) of the C.P.C., granting permission to withdraw the suit at the fag end of the trial, with liberty to file a fresh suit in respect of the same subject-matter, is challenged in this writ petition filed under Article 227 of the Constitution of India. The petitioner herein is the first defendant and the respondent is the sole plaintiff in the original suit.

2. The Original Suit O.S.No.395/2007, was one for an injunction restraining the defendants from trespassing into the plaint schedule property. It was alleged in the plaint that the plaintiff is the owner in possession of the plaint schedule property by virtue of Sale Deed No. 274/1996 and when the plaintiff started construction of a compound wall, the defendants obstructed the same claiming that the plaint schedule property is in possession of the Govt. U.P.School, Thengode, for the last so many years. Defendants 1 to 4 and 6 filed written statement contending that the plaintiff’s prior owner Smt. Annie Kurian had no such property, when she executed sale deed in favour of the plaintiff. The entire property, which she owned and possessed had already been gift