IMPORTANT POINT
Withdrawal and adjustment of suit--The statement made by counsel has to be read as a whole--The same could not be split up into two parts i.e. permission to withdraw the suit but without adverting to the other request of plaintiff for permission to file a fresh suit for same cause of action.

Rakesh Kumar Jain, J:-Appellant is the plaintiff in a suit for declaration. .

2. Brief facts of the case are that one Piara Singh son of Chet Singh was owner in possession of agricultural land measuring 60 kanals 1 marla, which was sold by him vide a registered sale deed dated 20.3.1962 for a consideration of Rs. 4500/- to the plaintiff and the defendants. The partition of the above land took place amongst the parties and the land measuring 16 kanals fell to the share of the plaintiff. The plaintiff mortgaged the land in dispute with Sukhbir Kaur on 14.4.1969 for a consideration of Rs. 4000/-,but the same was redeemed by the plaintiff from said Sukhbir Kaur and obtained the possession of the suit land on 7.4.1979. After obtaining the possession of the suit land, when the plaintiff had gone to U.P. to look after his other land, the defendants forcibly dispossessed the plaintiff and took the possession of the land in dispute.

3. In the written statement filed by the defendants, a preliminary objection was taken that the suit is barred under Order 23 Rule 4 of C.P.C. as the plaintiff had filed the suit of the same nature which was withdrawn without seeking permission of the Court to file a fresh suit on the same cause of action. Though, it was admitted that land measuring 60 kanals 1 marla was purchased by Piara Singh son of Chet Singh in the name of plaintiff and the defendant . The plaintiff is the real uncle of the defendant and his name was incorporated in the sale deed out of respect of benami because the entire consideration was paid by the defendants for getting the sale deed executed.

4. Replication was filed. On the pleadings of the parties, following issues were framed by the trial Court:-

1. Whether the name of the plaintiff was asserted benami in the sale deed dated 20.3.1962 and the whole consideration was paid by the defendants ? OPD

2. Whether the plaintiff relinquished the claim of the suit land at the time of mutation, If so , its effect ? OPD

3. Whether the plaintiff got possession of the suit land by way of family partition ? OPP

4. Whether the present suit is barred under order 23 Rule 4 CPC ? OPD

5. Whether the suit is not within time ? OPD

6.Whether the plaintiff is entitled to relief prayed for ? OPP

7.Relief:

5. The parties led evidence oral as well as documentary,but the trial Court decreed the suit with costs holding that the suit is not barred under Order 23 Rule 4 of C.P.C. because an application for permission was moved and the Court should have not split the prayer.

6. The first Appellate Court, however, decided issue No.4 against the plaintiff holding that counsel for the plaintiff had made a statement before the Court that the suit be dismissed as withdrawn. Therefore, on the basis of the statement of the counsel, the suit was withdrawn and since no permission was sought by the plaintiff to file the fresh suit on the same cause of action, the same was deemed to have been declined. The first Appellate Court also dismissed the suit on the ground that both the plaintiff and defendants are joint owners of the land and a suit merely for declaration is not maintainable without asking for joint possession.

Counsel for the appellant has vehemently argued that the finding of the first Appellate Court is unsustainable because the plaintiff had moved an application which is on record as Ex.PW6/1 in which not only it was prayed that the suit be dismissed as withdrawn but the prayer was also made for filing fresh suit on the same cause of action. Since the Court had granted the prayer of withdrawal of the suit, then it includes the permission to file fresh suit on the same cause of action as well. He has also submitted that the Court cannot split the application into two parts. If the suit is allowed to be withdrawn, it has to be allowed to be filed on the same cause of action. In this regard, he has cited a decision of this Court in the case of Surjan Singh v. Amarjit Singh, 1993 (1) P.L.R, 749, in which