ASTHANA, J. :- This is a plaintiff's second appeal from a concurrent decree of dismissal of his suit for demolition of a w All. Alleging that the defendants have constructed a wall on the village path-way thereby obstructing it, the plaintiff's user of it as of right has been infringed a decree for demolition of the wall and for injunction restraining the defendants from obstructing the plaintiff from exercising his right of way over the disputed land was sought. The defence was a denial of the plaintiff's allegations. It was pleaded that the defendants had raised the wall on the old foundations of their Gher and no public pathway ever existed on the land in dispute. It appears that there was a hint in the plaint of some kind of prescriptive right of easement founded on a user of the land in dispute as a pathway but in the trial itself what was sought to be established was that the land in dispute over which the wall had been constructed by the defendant was a village pathway. The plaintiff failed to establish by the evidence on record that the land in dispute formed part of the village pathway. A finding was also recorded that the wall had been constructed by the defendants on their old foundations. On these findings the suit of the plaintiff was dismissed. This appeal is apparently concluded by findings of fact. During the course of his argument the learned counsel for the plaintiff-appellant made an application for withdrawal of the suit by the plaintiff. This prayer was opposed by the learned counsel for the defendant-respondents.

2. The consensus of opinion in this court is that in an appeal a plaintiff can withdraw his suit under Order 23 rule 1, Civil Procedure Code with the permission of the court. An absolute right to a plaintiff to withdraw from the suit in appeal from the decree of dismissal of his suit has been denied to him on the ground that after passing of the decree of dismissal in the suit on the findings recorded in favour of the defendant the latter gets some vested rights. I have never been able to appreciate what kind of vested right accrues to a defendant when the suit of the plaintiff is dismissed in toto, particularly in suits for mere injunctions. It was suggested by the learned counsel for the defendant respondents that the findings recorded in the suit on the issues and controversies arising on the pleadings of the parties by themselves are of great value to the defendants and may in future litigation operate as res judicata. It is difficult for me to hold that such a kind of benefit can be termed as a vested right. However, such a line of argument has found acceptance at the hands of some Judges of this Court and it has been held by them that the benefit that accrues to a defendant on the findings recorded, as they can be used in future as res judicata between the parties takes away the absolute right of the plaintiff to withdraw from the suit in appeal from the decree of dismissal.

3. Under sub-rule (1) of Rule 1 of Order 23 of the Civil Procedure Code a plaintiff is at liberty to withdraw at any time after the institution of the suit or abandon part of his claim. When a plaintiff withdraws a suit or abandons a part of the claim without permission to institute a fresh suit in respect of the same subject-matter, he shall be liable for costs. In Raisa Sultana v. Abdul Qadir (AIR 1966 All 318) a Division Bench of this Court has taken the view that by an application under sub-rule (1) of Rule 1 of Order 23 a plaintiff signifies his willingness to withdraw the suit and nothing else is to be done by the Court nor even a formal order need be passed. The suit would only be struck off. The Court will only saddle the plaintiff with costs. In the case of Bhagwat Prasad v. Raghunath Prasad (1962 All LJ 915) a learned Single Judge held that when the decree of the trial Court has not become final on account of an appeal being preferred by one party or the other, the plaintiff can withdraw the suit. The