Point of Law: Where the plaintiff withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It is not in dispute that subsequent suit having been filed by the plaintiffs is on the same and similar cause of action, on which earlier suit was dismissed.

JUDGMENT :

SANDEEP SHARMA, J.

1. By way of instant appeal filed under Section 100 of CPC, challenge has been laid to judgment and decree dated 13.4.2017, passed by Additional District Judge-1, Shimla (camp at Rohru), District Shimla, H.P. in Civil Appeal No. 8-R/13 of 2016, affirming the judgment and decree dated 23.9.2014, passed by learned Civil Judge (Junior Division) Jubbal, District Shimla, H.P. in Civil Suit No. 20-I of 2018, titled Sh. Krishan Kumar versus Smt. Kalawati and Another, whereby suit for declaration and injunction having been filed by the appellants-plaintiffs( hereinafter referred to as the plaintiffs), came to be dismissed on the ground of maintainability as well as on the point that the plaintiffs have failed to prove their adverse possession.

2. Precisely, the facts of the case as emerge from the record are that the plaintiffs filed a suit for declaration and injunction against the respondents-defendants (hereinafter referred to as the defendants) in respect of land comprised in Khata No. 46/45, Khatauni No. 65, Khasra Nos. 12, 13 and 14, area measuring 00-93-96 hectares, situate at Chak Kharapathar, Tehsil Jubbal, District Shimla, H.P. as per jamabandi for the year 2002-03 ( hereinafter referred to as the suit land). Plaintiffs claimed that the suit land is in joint ownership of the parties, but in the column of possession, they have been shown in exclusive possession and as such, defendants have no legal right, title and interest upon the suit land as it has been coming in their peaceful possession.

3. Aforesaid claim put forth by the plaintiffs came to be resisted/ refuted by the defendants, who in their written statement specifically took objection with regard to maintainability of the suit. Defendants claimed before the court below that prior to filing of suit at hand, plaintiffs and proforma-defendants filed Civil Suit No. 39-1-2007 on the same and similar cause of action and same was dismissed as withdrawn on 3.5.2007. Apart from above, defendants also contested the suit of the plaintiffs on merits claiming therein that in partition proceedings, Khasra No. 2102/47/1, measuring 8 bighas 13 biswas and Khasra No. 2102/47/1, measuring 4 bighas was allotted to Mohan Lal and others, who was father of the replying defendants and mutation was attested on 13.12.1979.

4. Learned trial Court on the basis of the pleadings adduced on record by the respective parties framed following issues:

1. Whether the plaintiff alongwith proforma defendants No. 6 to 9 are absolute owners in possession of suit land, as claimed? OPP

2. Whether the entry showing defendants No. 1 to 5 as co-owners of suit land are wrong, illegal and void and they have no legal right, title or interest upon the suit land, as alleged? OPP

3. Whether plaintiff is entitled for permanent prohibitory injunction restraining defendants No. 1 to 5 from alienating, creating any charge and interfering in the possession of plaintiff in any manner whatsoever, if so, as to what result? OPP

4. Whether suit of plaintiff is barred by principle of res-judicata? OPD

5. Whether the suit is not maintainable and liable to be rejected? OPD

6. Whether the suit of plaintiff is hit by Order 2 Rule 2 of CPC, as alleged? OPD

7. Whether plaintiff is estopped to file present suit by his acts, deeds, omissions, commissions, latches, as alleged? OPD

8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

9. Whether plaintiff has no locus-standi to file the present suit? OPD

10. Whether plaintiff has no cause of action to file present suit? OPD

11. Whether plaintiff has concealed material facts from the court and suit is bad for want of better particulars? OPD

12. Whether suit of plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD

13. Relief.

5. Subsequently, vide judgment dated 23.9.2014, learned court below on the basis of the pleadings adduced on record by the respective parties, held the suit of the plaintiff to be not main