When a Suit is withdrawn with liberty to file a fresh Suit on the same subject matter without imposing any terms/restriction, the plaintiff/s could very well institute a fresh Suit on the same subject matter or part of claim by seeking all reliefs, supported by pleadings thereof.

JUDGMENT :

A. BADHARUDEEN, J.

1. Defendants 1 and 2 in O.S. No. 426/2009 on the files of the 1st Additional Munsiff Court, Ernakulam, who are aggrieved by the decree and judgment in the above Suit and in A.S. No. 2/2015 dated 31.01.2022, on the files of the Sub Court, Ernakulam, assail the same in this Second Appeal filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure.

2. I shall refer the parties in this appeal with reference to their status before the trial court, as ‘plaintiffs’ and ‘defendants’ hereafter for easy reference.

3. Heard the learned counsel for the appellants/plaintiffs as well as the contesting respondents, on admission. Perused the records.

4. Plaintiffs filed the suit for fixation of boundary and permanent prohibitory injunction. According to the plaintiffs, plaint schedule property having an extent of 41.40 Ares belong to them. The 1st plaintiff purchased 33.70 Ares of land as per document Nos. 4111/2005 and 4113/2005 and the 2nd plaintiff purchased 7.70 Ares of land as per document No. 4112/2005. Thus total extent of 41.40 Ares of land lying as a single contiguous plot, without demarcation. The plaintiffs’ case further is that the defendants encroached upon a portion of the plaint schedule property and now the property of the plaintiffs and the defendants are lying without specific boundaries.

5. Filing of earlier Suit as O.S. 57/2008 before the Munsiff Court, Ernakulam against the 2nd defendant and his nephew, for fixation of the southern boundary of the plaint schedule property and for mandatory injunction, also pointed out, on the submission that the said Suit was withdrawn with liberty to file a fresh Suit and thereafter the present Suit had been filed.

6. Defendants 1 and 2 filed written statement and admitted title deed of the plaintiffs. Defendants 1 and 2 denied transaction between the plaintiffs and the 8th defendant in the matter of construction of multi-storied building in the plaint schedule property. The encroachment alleged by the plaintiffs was denied. It was contended that the Suit is not maintainable, as one filed, after withdrawal of earlier Suit as O.S. No. 57/2008.

7. The trial court recorded evidence in this matter confined to that of PW-1, Exts.A1 and A2 on the side of the plaintiffs; DW1 and Exts.B1 and B2 on the side of the defendants. CW-1 and Exts.C1, C1(a), C2 and C2(a) as court exhibits. Finally, the trial court granted decree as under:

“In the result, the suit is decreed as follows:

1. The plaintiff is entitled to fixation of south eastern boundary of the plaint schedule property as per Exts.C2 report and C2(a) sketch and including the portion of plaint schedule property marked as ‘D’ in blue colour in Ext.C2(a) sketch.

2. The defendants 1 and 2 are directed by way of mandatory injunction to remove the construction made by them encroaching into the portion of plaint schedule property marked as ‘D’ in blue colour in Ext.C2(a) sketch.

3. The defendants 1 and 2 are restrained by way of permanent prohibitory injunction from trespassing into the plaint schedule property.

4. Parties are directed to bear their respective costs.”

8. Though appeal was filed challenging the verdict of the trial court, the appellate court also confirmed the said finding.

9. At the time of hearing on admission, the learned counsel for defendants 1 and 2 submitted that the present Suit is one filed after withdrawal of O.S. No. 57/2008, earlier filed by the 2nd plaintiff herein as 1st plaintiff, where the 1st defendant herein got arrayed as the 1st defendant. The said Suit was withdrawn with liberty to file a fresh Suit. According to the learned counsel for defendants 1 and 2, when a second Suit is filed enjoying the liberty granted by the court to file a fresh Suit, the plaintiffs could not widen the scope of the Suit from its earlier nature and in the present case, the Suit has been filed in a wider compass claiming more rights than claimed in the earlier Suit. Therefore, for the said reason