IMPORTANT POINTS
• A permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit.
• The court shall keep in mind the fact that, when permission is granted to withdraw from the suit with liberty to file a fresh suit, the parties are placed in the same position as they would have been, had the suit not been instituted at all.

JUDGMENT :

An order passed by the first appellate court, granting permission to the plaintiff to withdraw the two suits instituted by him with liberty to file fresh suit/suits on the same subject matter, is under challenge in these original petitions.

2. The petitioner is the first defendant in the suit O.S.No.266/2011 and the sole defendant in the suit O.S.No.9/2015 on the file of the Sub Court, Alappuzha. The respondent herein is the plaintiff in these two suits.

3. The second defendant in the suit O.S.No.266/2011 is not a party to these original petitions. However, for the sake of convenience, the parties shall be hereinafter referred to as 'the plaintiff' and 'the defendant'.

4. The plaintiff had instituted the suit O.S.No.266/2011 in the Sub Court, Alappuzha for granting a decree for cancellation of sale deed No.2930/2008 of S.R.O Pulinkunnu which was executed by the second defendant in favour of the first defendant. The decree for cancellation of that document was sought by the plaintiff on the ground that the second defendant had no property in survey No.60/1 which was mentioned in that document. The plaintiff had not raised any plea in this suit that he had any right, title or interest in the property covered by the aforesaid document. The suit was instituted on the basis that the plaintiff entertained an apprehension that the defendants may, in future, raise claim over the property of the plaintiff which lies adjacent to the property in survey No.60/1.

5. The defendant filed written statement in the suit O.S.No.266/2011 contending that the suit is not maintainable and that the plaintiff has got no property in the vicinity of the property covered by sale deed No.2930/2008.

6. Even before the institution of the suit O.S.No.266/2011, the father of the plaintiff had instituted the suit O.S.No.124/2009 in the Munsiff's Court, Alappuzha against the defendant for granting a decree of prohibitory injunction restraining the defendant from trespassing into the property shown in the plaint schedule and committing any waste therein. The allegation in this suit was that the defendant made attempt to trespass upon the plaint schedule property. The father of the plaintiff subsequently died and the plaintiff was impleaded in this suit.

7. The defendant filed written statement in the suit O.S.No.124/2009 contending that the description of the property mentioned in that suit is not correct and it includes 5.89 Ares of land covered by document No.2930/2008.

8. The suit O.S.No.124/2009 was transferred to the Sub Court, Alappuzha and it was renumbered as O.S.No.9/2015.

9. The trial court conducted joint trial of the two suits. The trial court found that the plaintiff, who was not a party to document No.2930/08, had no right to seek cancellation of that document and dismissed the suit O.S.No.266/2011. The trial court also dismissed the suit O.S.No.9/2015 on the basis of the finding that the plaintiff failed to prove possession over the property mentioned in that suit.

10. The plaintiff filed the appeal A.S.No.127/2016 challenging the decree and judgment passed against him in the suit O.S.No.266/2011. He also filed the appeal A.S.No.126/2016 challenging the decree and judgment passed against him in the suit O.S.No.9/2015.

11. The plaintiff filed an application as I.A.No.895/2019 in A.S.No.126/2016 and another application as I.A.No.896/2019 in A.S.No.127/2016 under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (for short 'the Code') praying that he may be permitted to withdraw from the two suits with liberty to sue the defendant/defendants afresh on the same subject matter. These applications were filed by the plaintiff on the plea that his counsel opined that there was so many defects in the framing of the suits and that the proper remedy ought to have been to file a suit for declaration of title of the disputed property and recovery of possession.

12. The defendant filed objection to the abovementioned two applications, contending that th