ORDER

The plaintiffs in O.S.No.2516/2022 presently pending consideration before the Senior Civil Judge, Hoskote, have filed this petition challenging an order dated 27.09.2021 passed in the erstwhile O.S.No.90/1990 by the III Additional Senior Civil Judge, Bengaluru Rural, Bengaluru (henceforth referred to as 'Trial Court') by which, an application filed by them under Order XXIII Rule 1 read with Section 151 of CPC was rejected.

2. The suit in O.S.No.90/1990 was filed for partition and separate possession of the plaintiffs' share in the suit schedule properties, which were several in number. The suit was contested by the defendants.

3. One of the items of the suit schedule properties namely, suit item No.85 was disposed off by the defendant No.1(d) representing the family of the late Gopala Krishnamurthy. This was with the concurrence of defendant Nos.1(a), 1(b), deceased - Padmanabha, 1(f) and 1(g). During the pendency of the proceedings, the defendant Nos.2 and 3 confirmed the sale of suit item No.85 in favour of defendant No.11 and Sri. Srinivas. The plaintiffs thereafter for reasons best known to them, brokered a deal with the said Sri. Srinivas and defendant No.11, whereby they too confirmed the sale of suit item No.85 in favour of Sri. Srinivas and defendant No.11. As a result, the plaintiffs gave up their interest in suit item No.85 and likewise, the defendants also gave up their interest in suit item No.85. Therefore, the plaintiffs filed an application under Order XXIII Rule 1 read with Section 151 of CPC seeking permission to withdraw or abandon the suit in respect of suit item No.85.

4. This application was opposed by the defendants contending that the plaintiffs had no right to confirm the sale of suit item No.85 in favour of Sri. Srinivas and defendant No.11.

5. The Trial Court after considering the contentions urged, rejected the application in terms of the impugned order on the ground that in a suit for partition filed by the coparceners, a right to abandon a suit is not absolute but has to be treated on a different footing. It held that in such a suit, defendants have an equal right to claim partition and the plaintiffs cannot be permitted to withdraw the suit in respect of one of the items of the suit properties. It held that plaintiffs had not stated anything about the right of the defendants over the suit item No.85 and therefore, refused to entertain the application filed by the plaintiffs to withdraw the suit in respect of suit item No.85.

6. Being aggrieved by the said order, the plaintiffs have filed this petition.

7. The learned counsel for the plaintiffs contended that when the suit item No.85 was conveyed to Sri. Srinivas and defendant No.11 by defendant No.1(d), which was accepted by his mother, brothers and sister, nothing remained for consideration, as the plaintiffs also gave up their claim in respect of suit item No.85 by executing corresponding confirmation deeds in favour of the purchasers. He submitted that the defendant Nos.2 and 3 being the uncles of defendant No.1(d) had also executed corresponding confirmation deeds in favour of purchasers. Therefore, he contended that none of the plaintiffs and defendants had any subsisting right, title or interest in the suit item No.85 and hence, suit against item No.85 could not continue and therefore, the Trial Court must have permitted the plaintiffs to withdraw the suit in so far as item No.5 is concerned.

8. Per contra, learned counsel for the defendant Nos.1(b), 1(d), 1(e) and 1(g) submitted that the confirmation deeds brought about by the plaintiffs are all fraudulent and are designed to establish their relationship with deceased - Gopala Krishnamurthy. He submitted that though the plaintiffs contended in their affidavit that they had received a sum of Rs.32,00,000/- from the purchasers namely, Sri. Srinivas and defendant No.11 as consideration in the confirmation deeds, but in the deeds of confirmation, there was nothing mentioned about the money pai