( 1 ) THIS appeal was heard by one of us brother K. N. Goyal, J. who after noticing that there was some conflict in the decisions of single Judges on the legal question involved in this appeal referred this second appeal to be decided by the Division Bench. This appeal has, thus, come up before us for decision.

( 2 ) BRIEFLY stated the facts of the case are that the plaintiff-appellant had filed a suit No. 239 of 1964 for declaration against the defendant-respondents and in that suit an application under O. 23 R. 1 (2) Civil P C (for short C. P. C.) (as it stood prior to its amendment) for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action was moved. This application was allowed by order dated 28-9-1967 passed by Munsif, North Sultanpur. The operative portion of the order reads: -"the application is therefore allowed while permitting the plaintiff to withdraw the suit. The plaintiff will pay up the entire cost of this suit to the defendant. "

( 3 ) THEREAFTER, the plaintiff filed the present suit. The plaintiffs contention was that as a result a partition between the zamindars of village Rohitpara land of Ahata No. 29 and Ah