1921 (12) TMI 2 - HC - Indian Laws

Summary

Issues:
- Suit for partition dismissed by Subordinate Judge of Patna
- Defence of res judicata, limitation, lack of title, and possession raised
- Interpretation of Order XXIII, rule 1 regarding withdrawal of suit
- Suit withdrawn by two out of four plaintiffs in 1902
- Bar on present suit due to withdrawal in 1902
- Requirement of consent of all parties for withdrawal of suit
- Right to institute a fresh suit for partition

Analysis:

The judgment by Jwala Prasad and Robert Lindsay Ross, JJ., pertains to an appeal in a suit for partition that was dismissed by the Subordinate Judge of Patna. The case involves widows of two individuals descended from a common ancestor, Ram Bahadur, with a complex history of partitions and property transfers. The defence raised issues of res judicata, limitation, lack of title, and possession of the property in question. The Subordinate Judge held that the rule of res judicata barred the suit, but the appellant challenged this decision citing a Full Bench ruling. The judges analyzed the withdrawal of a previous suit in 1902 by only two out of four plaintiffs and its impact on the present suit for partition.

Jwala Prasad, J., delved into the specifics of the withdrawal of the suit in 1902, highlighting the necessity of obtaining consent from all parties for such an action. The judge emphasized that the court lacked jurisdiction to permit withdrawal without the consent of all plaintiffs. As the previous suit was withdrawn by only two plaintiffs, the Full Bench decision on withdrawal with permission for a fresh suit did not directly apply. The judge concluded that the present plaintiff had the right to institute a suit for partition if she could establish a joint title and possession within the period of limitation, despite the withdrawal issue.

Robert Lindsay Ross, J., also addressed the withdrawal of the previous suit in 1902, emphasizing the importance of all plaintiffs' consent for withdrawal. The judge noted that the two plaintiffs who withdrew did not represent all parties involved, raising doubts about the validity of the withdrawal. Despite the withdrawal, the judge affirmed the plaintiff's right to bring a fresh suit for partition as the cause of action in such cases is recurring, provided the plaintiff can prove joint title and possession within the limitation period.

In conclusion, the judgment provides a detailed analysis of the withdrawal of a previous suit and its impact on the present suit for partition, emphasizing the necessity of all parties' consent for withdrawal. The judges clarified the plaintiff's right to institute a fresh suit for partition based on the recurring nature of the cause of action and the requirements of joint title and possession within the limitation period.