IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.980 of 1970 CH.RANBIJAY BAHADUR SINGH & ORS Versus BHANUMATI DEVI & ORS. ----------- 83. 07.03.2011 Heard Mr. V. Nath, learned counsel for the appellants and Mr. J. P. Shukla, learned senior counsel for the respondents. When the hearing of this appeal was taken up Mr. Nath had pressed two interlocutary applications, I. A. No. 1071 of 2011 and I. A. No. 1072 of 2011 wherein the prayer for adducing additional evidence and deciding the preliminary issue had been made. Ultimately, Mr. Nath having realized that Title Suit No. 228 of 2001 is pending assailing the impugned judgment and decree herein as with regard to same property between the same parties wherein one of the co-sharers who had not made party in the earlier judgment under appeal has directly questioned the impugned judgment and decree of Title Suit No. 166/5 of 1963/1969, in this appeal has sought leave of this Court to withdraw this appeal with a liberty to raise all the issues before the concerned court in seisin of Title Suit No. 228 of 2001. He has only sought a 2 limited protection that as this appeal is being withdrawn without adjudication on merits, any finding recorded by the court below may not adversely affect the disposal of Title Suit No. 228 of 2001. In view of the fact that in Title Suit No. 228 of 2001 an issue has been directly raised with regard to legality and correctness of the judgment under appeal on the ground that one of the co-sharers being not made party, this Court while according leave to the appellants to withdraw this appeal would observe that nothing said in the impugned judgment under this appeal will affect either party in pressing their case in Title Suit No. 228 of 2001 and to that extent none of the parties to this appeal will be hit by the principle of res judicata. With the aforementioned observations and clarification, this appeal is permitted to be withdrawn. kanchan (Mihir Kumar Jha, J.)