JUDGMENT :

S. Panda, J.

Petitioner in this application has challenged the order dated 23.02.2012 passed by learned Addl. Civil Judge (Sr. Division), Balasore in C.S. No. 888 of 2000-I rejecting the applications filed by her under Order, 23 Rule 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the suit for partition. Petitioner is the defendant No. 13 who contests the suit.

2. The facts leading to the present case as narrated in the application are as follows:-

One Sudhakar Panigrahi as plaintiff filed C.S. No. 888 of 2000 for partition and other consequential relief. After the death of the original plaintiff Sudhakar Panigrahi the present opposite party no. 1 being the daughter substituted as plaintiff in the suit and her two brothers were impleaded as defendant nos. 26 and 27 who are present Opp. Party Nos. 30 and 31. The present petitioner is representing the branch of Balakrushna as per the genealogy. She is the daughter of Pranakrushna, son of Balakrushna. Defendant Nos. 1, 2, 13, 14, 20, 21, 25, 28 to 31 have filed their written statements in the suit. Out of them defendant No. 14 to 31 are purchasers, of the suit property. In their written statement defendant Nos. 1 and 2 have stated that Pranakrushna died much prior to the year 1956 leaving behind his two daughters namely Pagili (defendant no. 12) and Bayani (defendant No. 13) for which defendant Nos. 12 and 13 are not entitled to get any share. They have further stated that due to dissension between the Balakrushna and Jasobanta, they were separated from each other by way of amicable partition prior to Current Settlement and they were possessing their shares separately and separate record of rights has also been recorded separately in their names.

3. Defendant No. 13 has stated in her written statements that the suit property has been partitioned between the plaintiff and defendant Nos. 1 to 13 much prior to Current Settlement and accordingly parties were possessing their separate shares and major settlement record of rights has also been recorded in the name of defendant No. 13 separately in respect of her share of lands and the plaintiff has no manner of right, title, interest on her shares. Defendant No. 14 is the purchaser from the father of defendant No. 13. He has also admitted in his written statement regarding partition between the Balakrushna and Jasobanta.

4. During pendency of the suit the original plaintiff entered into compromise on 03.05.2002 with defendant Nos. 6, 9, 11 and on 03.08.2002 with defendant Nos. 21 and 25 and on 13.09.2002 with defendant Nos. 1, 2, 5 to 8 and on 03.04.2006 with defendant Nos. 26 to 31. In view of the above aforesaid compromise the Opposite party No.1 filed an application on 17.11.2011 for withdrawal of the suit. Petitioner has filed her objection challenging the maintainability of the petition. She has denied the assertions made in the petition and stated specifically therein that plaintiff has already examined and cross-examined and she has filed the application to withdraw the case after eleven years from the date of filing of the suit. A valuable right accrued in favour of the defendant no. 13 after examination and cross-examination of the plaintiff in the suit. Hence she is seeking the relief of the court to transpose herself as plaintiff accordingly she has filed applications under Order, 23 Rule, 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the case.

5. Plaintiff has filed her objection to the aforesaid application wherein it was contended that the claim of defendant No. 13 is not identical and similar with the claim of the plaintiff, rather the claims are both rival and against each other. Defendant no. 13 can only be transposed as plaintiff only when she accepted the plaint case and without such acceptance she cannot be transposed as plaintiff. As the nature o