JUDGMENT
Rakesh Kumar Jain, J.
1. Appellant is the plaintiff in a suit for declaration.
2. Brief facts of the case are that one Piara Singh son of Chet Singh was owner in possession of agricultural land measuring 60 kanals 1 marla, which was sold by him vide a registered sale deed dated 20.3.1961 for a consideration of Rs. 4,500/- to the plaintiff and the defendants. The partition of the above land took place amongst the parties and the land measuring 16 kanals fell to the share of the plaintiff. The plaintiff mortgaged the land in dispute with Sukhbir Kaur on 14.4.1969 for a consideration of Rs. 4,000/-, but the same was redeemed by the plaintiff from said Sukhbir Kaur and obtained the possession of ths suit land on 7.4.1979. After obtaining the possession of the suit land, when the plaintiff had gone to U.P. to look after his other land, the defendants forcibly dispossessed the plaintiff and took the possession of the land in dispute.
3. In the written statement filed by the defendants, a preliminary objection was taken that the suit is barred under Order 23 Rule 4 of C.P.C. as the plaintiff had filed the suit of the same nature which was withdrawn without seeking permission of the Court to file a fresh suit on the same cause of action. Though, it was admitted that land measuring 60 kanals 1 marla was purchased by Piara Singh son of Chet Singh in the name of plaintiff and the defendant. The plaintiff is the real uncle of the defendant and his name was incorporated in the sale deed out of respect of benami because the entire consideration was paid by the defendants or getting the sale deed executed.
4. Replication was filed. On the pleadings of the parties, following issues were framed by the trial Court:
1. Whether the name of die plaintiff was asserted benami in the sale deed dated 20.3.1962 and the whole consideration was paid by the defendants? OPD
2. Whether the plaintiff relinquished the claim of the suit land at the time of mutation, If so, its effect? OPD
3. Whether the plaintiff got possession of the suit land by way of family partition? OPP
4. Whether the present suit is barred under order 23 Rule 4 CPC? OPD
5. Whether the suit is not within time? OPD
6. Whether the plaintiff is entitled to relief prayed for? OPP
7. Relief:
5. The parties led evidence oral as well as documentary, but the trial Court decreed the suit with costs holding that the suit is not barred under Order 23 Rule 4 of CPC because an application for permission was moved and this Court should have not split the prayer. The first Appellate Court, however, decided issue No. 4 against the plaintiff holding that counsel for the plaintiff had made a statement before the Court that the suit be dismissed as withdrawn. Therefore, on the basis of the statement of the counsel, the suit was withdrawn and since no permission was sought by the plaintiff to file the fresh suit on the same cause of action, die same was deemed to have been declined. The first Appellate Court also dismissed the suit on the ground that both the plaintiff and defendants are joint owner of the land and a suit merely for declaration is not maintainable without asking for joint possession.
6. Counsel for the appellant has vehemently argued that the finding of the first Appellate Court is unsustainable because the plaintiff had moved an application which is on record as Ex. PW6/1 in which not only it was prayed that the suit be dismissed as withdrawn but the prayer was also made for filing fresh suit on the same cause of action. Since the Court had granted the prayer of withdrawal of the suit, then it includes the permission to file fresh suit on the same cause of action as well. He has also submitted that the Court cannot split the application into two parts. If the suit is allowed to be withdrawn, it has to be allowed to be filed on the same cause of action. In this regard, he has cited a decision of this Court in the case of Surjcan Singh v. Amarjit Singh (1993-1) 103 P.L.R. 749, in which it has been held that the Court is to permit withdrawal of suit with liberty to file fresh suit-Court may refuse to grant permission to withdraw the suit but it is not open to the Court to split up the statement in two parts i.e. permission to withdraw the suit but without adverting to the other request of plaintiff for permission to file a fresh suit for same cause of action. Counsel has further relied upon a decision of Madras High Court in the case of T.W. Ranganathan v. T.K. Subramaniam , wherein it has been held that “where an application under Order 23 Rule 1(2) of C.P.C. is moved for withdrawal of the suit on the plaintiffs application for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action, the Court cannot direct the withdrawal of the suit without giving the liberty sought for. If the court disallows the liberty sought for, it should dismiss the application and allow the suit to proceed.”
7. Counsel for the appellant has contended that since liberty to withdraw the suit has been granted and no liberty was granted for the purpose of filing fresh suit, he is not debarred from filing the fresh suit on the same cause of action. Counsel has further argued that he has been wrongly non-suited by the first Appellate Court on the ground that though he was joint owner, therefore, a suit merely for declaration is not maintainable. He drew the attention of this Court to the decision in the case of Amar Singh v. Manphool Singh (1991-1) 99 P.L.R. 645, in which it has been held that “a suit by a co-share for declaration without seeking possession is competent”.
8. Counsel for the respondents in order to support the judgment of the first Appellant Court has argued mat the suit was withdrawn on the statement of the counsel for the plaintiff, who had not made a specific prayer for permission to file fresh one on the same cause of action and, therefore, the prayer is deemed to have been waived or declined. He has further argued that the second question with regard to the suit having been filed merely for declaration would arise if this Court holds that the suit is maintainable dehors bar of Order 23 Rule 4 of C.P.C.
9. I have heard learned Counsel for the parties and have perused the record and am of the opinion that this appeal deserves to be allowed.
10. In this case, following substantial questions of law are involved as to:
(i) Whether in a case where permission is sought to withdraw the suit with permission to file afresh on the same cause of action, the Court is competent to split the prayer and allow withdrawal without passing any order with regard to permission sought therein?
(ii) Whether in a case where plaintiff is found to be a cosharer, suit for declaration without seeking relief of possession is competent?
11. Admittedly, the application moved by the plaintiff is on record as Ex. PW6/1, which contains not only the prayer to withdraw the suit but also to file fresh, suit on the same cause of action. It is true that while passing the order, the Sub Judge, 1st Class, Tarn Taran, has recorded the statement of the learned Counsel for the plaintiff on 05.3.1985 and dismissed the suit as withdrawn and did not advert to the second prayer. But in Surjan Singh’s case (supra), a similar order was passed which reads that “in view of the statement of learned Counsel for the plaintiffs, the suit is dismissed as withdrawn with no order as to costs. File be consigned”.
12. In the same circumstances, this Court has held that the statement made by learned Counsel for the plaintiff has to be read as a whole and the same could not be split up into two parts i.e. permission to withdrawn the suit but without advertising to the other request of plaintiff for permission to file a fresh suit for same cause of action.
13. For this purpose, in the cited case, which was a revision against interlocutory order, permission was granted. Counsel for the respondents has not cited any judgment to the contrary. Therefore, in view of the discussion on this issue, the finding of the first Appellate Court on issue No. 4 is reversed. Since the second point with regard to the suit having been filed merely for declaration has not been adverted to by counsel for the respondents, though that question is also covered by the decision rendered in Amar Singh’s case (supra), the judgment of the first Appellate Court is held to be erroneous and illegal and thus the same deserves to be set aside.
14. For the reasons recorded above, the appeal is allowed and the judgment of the first Appellate Court is set aside. The parties are left to bear their own costs.