Mr. Anil Kshetarpal, J.:- Defendant-appellant is in the regular second appeal against the concurrent findings of fact arrived at by the Courts below.

2. Dispute in the present case is with regard to the estate of late Shri Teja Singh who alleged to have died unmarried and issueless. Appellant-Jaspal Singh before this Court claims to be legal heir of Pritam Kaur @ Prito. There was previous round of litigation, which resulted into a judgment and decree passed by the learned Additional District Judge, Amritsar dated 09.01.1960 wherein Pritam Kaur @ Prito was held to be not a widow of late Shri Teja Singh. The aforesaid finding has become final between the parties.

3. Both the Courts below after appreciation of evidence available on the file, have decreed the suit filed by the plaintiffs.

4. I have heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below as well as records.

5. Learned Senior counsel for the appellant has raised two fold contentions:- (i) the present suit filed by the plaintiffs is barred under Order 23 Rule 1 of the Code of Civil Procedure; (ii) plaintiffs in the present suit are not the reversioner of late Shri Teja Singh and, therefore, they are not entitled to file the present suit and any declaration.

6. With regard to the first issue, it is significant to note that the plaintiffs also filed a suit for declaration previously but withdrew the suit on 15.05.1984. Learned counsel for the appellant submits that once a previous suit was withdrawn without any permission to file fresh one, hence, fresh suit would not be maintainable under Order 23 Rule 1 (4) of the Code of Civil Procedure.

7. A careful reading of the plaint would prove that the proceedings with regard to mutation were pending between the parties pursuant to judgment and decree dated 09.01.1960. Revenue Authorities sanctioned the mutation in favour of the plaintiffs and defendants No.22 to 24. Hence, the plaintiffs withdrew the earlier suit on 15.05.1984. Thereafter in an appeal, the order of mutation was reversed by the Appellate Authority vide order dated 28.01.1985. Plaintiffs have pleaded that cause of action accrued to them pursuant to the order passed by the Appellate Authority on 28.01.1985. Order 23 Rule 1(4) bars institution of any fresh suit in respect of such subject matter or such part of claim. The subsequent suit has been filed on a cause of action, which arose on 28.01.1985. Previous suit was instituted on 26.11.1981.

8. Hence, in the considered opinion of this Court, present suit is not barred under Order 23 Rule 1(4) of the Code of Civil Procedure.

9. Second argument of learned counsel for the appellant is that in the previous litigation, plaintiffs and defendants No.22 to 24 were held not to be reversioner of late Shri Teja Singh. Hence, the aforesaid finding has become res judicata.

10. It is not in dispute that the judgment passed by the learned trial Court in the previous suit decided by Shri Hukam Chand Gupta, Sub Judge Ist Class, Amritsar on 27.04.1959 has not been filed. Only judgment passed by the learned First Appellate Court dated 09.01.1960 is available on the file as Ex.PX/1. Appeal filed by the plaintiffs in that case was accepted. No doubt, while narrating the facts, the learned First Appellate Court has noticed that the learned trial Court did not find defendants No.3 to 8 in the aforesaid suit to be reversioners of Teja Singh. However, learned First Appellate Court did not decide this issue and abstained from it. Learned First Appellate Court only held that the plaintiffs are proved to be reversioners and, therefore, entitled to 1/3rd share.

11. It may be significant to note here that the finding of the learned trial Court that Pritam Kaur @ Prito is not widow of late Shri Teja Singh was not even challenged before the learned First Appellate Court in the year 1960. In absence of the judgment of the learned trial Court, it is not possibl