RSA No. 725 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 725 of 2010(O&M) Date of Decision: February 17 , 2010 Ramesh and another ...... Appellants Versus Bhira and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.OPS Tanwar, Advocate for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellants for partition of the joint property primarily on the ground that an earlier suit had been filed for the same relief which was withdrawn without permission to file a fresh one. The following questions have been proposed:- a) Whether the parties being class-I heir as per schedule-I under the Hindu Succession Act,being the sons or son's sons or son's widow are not entitled to the property as per their shares, owned by Shyama, and plaintiffs are not the members of the Joint Hindu Family? And/Or Whether the suit property in the hands of Shyama defendant No.1 was ancestral/Joint Hindu Family and in absence of any RSA No. 725 of 2010(O&M) 2 Will/Court order/decree the LRs including plaintiffs are not entitled to their shares? b) Whether in absence of specific pleading/ evidence/ material the findings of partition on probability, presumption or assumptions can be based and sustained? c) Whether the suit for partition not decided on merits and withdrawn by Roshni without considering the claim of co- plaintiff Ramesh or co-sharers, the Order 23 rule 1(4) applies to debar the fresh suit, as Order 23 Rule 1(5) does not bar the plaintiffs to seek their claim in the fresh suit? d) Whether the findings of the courts below are perverse, bald, erroneous being not based on any material in support and based on surmises, conjectures, presumptions, probabilities? e) Whether under the given facts as per Order 20 rule 18 read with Order 41 Rule 33, Section 107, 151 CPC, the case deserves to be remanded? The main question is question No. ( c ). Learned counsel has argued that it is clear from the judgment of the learned Lower Appellate Court itself that only one of the plaintiffs viz. Roshni Devi had withdrawn the suit and that under Order 23 Rule 1(5) CPC it was incumbent upon the Court to ensure that the said plaintiffs had also consented to the withdrawal of the suit. Learned counsel has argued that this having not been done, the judgments of the Courts below are liable to be set aside. In my opinion this argument is of no help to the appellants. Nothing prevented them from moving an application in the withdrawn suit to bring to the notice of the Court that in fact their consent had not been taken and consequently they be permitted to proceed further with the suit. Apart from that I have perused even the plaint of the instant suit after obtaining a copy from learned counsel. Even in the plaint no averment has been made regarding the earlier suit or that the same was unauthorisedly or illegally withdrawn. RSA No. 725 of 2010(O&M) 3 In the circumstances the findings of the courts below that the present suit is barred, in my opinion, suffer from no illegality. Once it is held that the second suit was barred the remaining questions recede into the background. Consequently this appeal as well as the application for stay are dismissed Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE February 17, 2010 sunita