JUDGMENT

Hamilton, J - This is an appeal against an appellate decision of the Additional Civil Judge of Unao. The case was brought by the zamindars against the defendants as riayas for demolition of certain constructions in the sahan darwaza of the defendants. The findings were that there existed for many years two kachcha chabutras and a kachcha enclosure wall of uncertain height, but apparently low. The chabutras were made pakka and so was the wall. The learned Additional Civil Judge found that the case was barred by the doctrine of acquiescence, by limitation, by reason of res judicata and by the provisions of Order 23, Rule 1, Civil P.C., and he held that the tenants in the sahan darwaza could alter the kachcha chabutras and the low kachcha wall into pakka chabutras and a pakka wall. The learned Counsel for the appellants has argued against the four grounds on which the learned Additional Civil Judge dismissed the appeal against the dismissal of the suit. I will take first the point of res judicata and the provisions of Order 23, Rule 1, Civil P.C.

2. The facts of the case are that the suit was originally brought against five defendants of whom one was Munna Lal, defendant 3. There was an agreement to arbitration made by the four other defendants and the plaintiffs, but on the date that these parties agreed Manna Lal was absent and instead of waiting for him to come and sign also the agreement, his name was removed from the array of defendants. The arbitration did not dispose of the suit because the award was set aside and then an application was made by the plaintiffs to reimplead Manna Lal and he was reimpleaded as defendant 5. Eventually the suit was dismissed against all the defendants. In Haveli Shah v. Painda Khan (1926) 13 AIR PC 88 a decision of their Lordships of the Privy Council, the facts of the case were that a suit for damages for improperly enticing third parties to break their contract with the plaintiff had been brought. The names of the sons of Sundar Dass were in the array of defendants, but they were struck off and the administrator of the estate of Sundar Dass was substituted as the only defendant. Later on, the names of the sons of Sunder Dass were restored as defendants. Their Lordships of the Privy Council held that the suit was brought to an end against those sons, and when their names were entered again the existing suit was a new suit against them and by that time it was barred by limitation. There is of course no question of limitation in the present suit, but the point appears to be the same that the reimpleading of Manna Lal meant a new suit against him. His name had been struck off with the result that the suit was brought to an end against him, and at the time no permission was taken under Order 23, Rule 1(2) to bring a fresh suit against him. Consequently, the suit could not be decreed against him as it was not competent for the plaintiffs to sue Manna Lal again in a fresh suit when they had not obtained the permission of the Court to do so. The dismissal of the suit against Manna Lal is therefore correct.

3. The question remains whether the suit could be decreed against the remaining defendants when Manna Lal jointly lived in a house which had as its sahan darwaza the land on which these constructions were made. The suit is one for demolition and it would be impossible to demolish the con-structions against the remaining defendants and to leave them standing in favour of Manna Lal. The suit failing against Manna Lal must therefore fail against the remaining defendants and this necessarily leads to the dismissal of this appeal on this ground. As regards the remaining grounds, I have not heard the learned Counsel for the respondent as it becomes unnecessary. I wish to make it clear that the fact that I have dismissed this appeal does not mean that the other reasons for which the appeal was dismissed by the learned Additional Civil Judge are found by me to be correct. The appeal is accordingl