Narayan, J. - (1.) This is an appeal by the defendant in a suit for declaration of title and recovery of possession with regard to 7 bighas of land along with 21 trees standing thereon recorded in the Survey within plot No. 2139 of khata No. 1 and situate in village Purnanagar. The case which the plaintiffs sought to make out was that they had taken raiyati settlement of the said land under a hukumnama dated 14-8-1930 granted by the 16 annas landlord and that they had been in possession of the land with the trees standing thereon by virtue of the settlement until there was an interference with their possession by the father of the defendants 1 and 2 and the defendant 3, the present appellant, in the year 1936. The remaining portion of the plot had, according to the case put forward by the plaintiffs, been settled with one Ledu, and in the year 1937 Ledu and the present plaintiffs instituted a suit against the father of the defendants 1 and 2 and the defendant No. 3 for declaration of title with regard to the lands of which they had taken settlement. The plain- tiffs withdrew from this suit with liberty to sue afresh on the same cause of action. They then brought another suit which was Title Suit No. 172 of 1944 for declaration of their title with regard to this land in dispute, and this suit was also withdrawn on 28-4-1946. The plaintiffs were again permitted to bring a fresh suit on the same cause of action. The plaintiffs then instituted the present suit on 6-9-1946, and the suit was resisted only by the defendant 3 who pleaded that the hukumnama propounded by the plaintiffs was a fabricated document and that the plaintiffs had never been in possession of the land in question. The defendant further contended that this suit was not maintainable.
(2.) The Courts below have decreed the suit, and hence this second appeal by the defendant 3.
(3.) The finding of the Courts below on the question of title and possession is entirely in favour of the plaintiffs. The learned Subordinate Judge has held that the plaintiffs had title to the land and that they were in possession thereof until they were dispossessed in the year 1936. The learned Counsel for the appellant did not and could not challenge these findings, but the contention which he has seriously urged is that the Court which disposed of Title Suit No. 61 of 1937 had no jurisdiction to permit the plaintiffs to withdraw their claim with regard to the land claimed by them with liberty to sue afresh for the same. It appears that one of the present plaintiffs was plaintiff No. 3 in that litigation, and he had filed a petition withdrawing his claim with regard to the lands described in Schedule Kha of the plaint and had sought permission to sue afresh with regard to those lands. This prayer was allowed, and the plaintiff No. 3 was permitted to withdraw his claim with liberty to sue for it afresh. It is important to note that there were two sets of plaintiffs in that case, and each set claimed a different parcel of land. I have already said that Ledu was a settlement-holder with regard to the remaining portion of plot No. 2139. While 7 bighas out of this plot had been settled with the plaintiffs, the rest of the plots had been settled with Ledu. Though, therefore, Ledu and the plaintiff No. 3 had instituted one suit to recover possession of the lands, virtually there were two claims, in as much as plaintiff No. 3 claimed one portion and the remaining plaintiffs claimed another portion of plot 2139. This is a very important circumstance to be considered in this case. There were really two claims in that suit, one by plaintiff No. 3 with regard to Schedule Kha lands and the other by the other plaintiffs with regard to Schedule Ka lands. After the withdrawal of the claim by plaintiff No. 3 with regard to Schedule Kha lands, the suit proceeded in respect of the claim of the remaining plaintiffs with regard to Schedule Ka lands, and it seems manifest that neither the remaining plaintiffs nor the defendants of the suit ever raised any objection as to the maintainability of that suit on account of the plaintiff No. 3 having withdrawn his claim. The learned Counsel for the appellant has relied on Sub-rule (4) of Rule 1 of Order 23 which says that nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others. And the learned Counsel has referred to a decision of this Court in 'MT. RAM DEI v. MT. BAKU RANI', 1 Pat 228 in which it was held that where a Court allows a suit to be withdrawn in contravention of Sub-rule (4) and grants leave to institute a fresh suit without the consent of the other plaintiffs, the second suit is barred. But the learned Counsel had to concede that because that was a suit for partition, the decision of their Lordships on the question of jurisdiction cannot but he regarded as obiter dictum. Their Lordships ultimately held that because the suit was a suit for partition and because the cause of action in a suit for partition is a recurring one, a joint owner at any time has a right to come to Court, provided he proves that he has a subsisting joint title and possession in the property. This being the ultimate decision, their Lordships' observation on the question of jurisdiction must be regarded as obiter dictum. Even, if however, the principles laid down by their Lordships in that case are taken to be binding on us, those principles cannot, in my opinion, be invoked in this present case. From the facts, as they have been indicated in the judgment of their Lordships, it appears that two of the plaintiffs in that litigation had been left out of account altogether, and in fact, to quote the language of Jwala Prasad J., they had turned back upon their promise. It is therefore that his Lordship observes that it was absolutely essential for the Court to find out whether those plaintiffs had consented to the withdrawal of the suit or not. What has happened in this present case before me is that the other plaintiffs never raised any objection to the withdrawal of the claim by the plaintiff No. 3, and indeed they could not raise any objection to the withdrawal of the claim by the plaintiff No. 3, because the claim of the plaintiff No. 3 was confined to a particular piece of land with which they had no concern whatsoever. Neither the defendants in that case nor the remaining plaintiffs raised any objection on account of the withdrawal of the plaintiff No. 3 and the case proceeded to trial with regard to the remaining portion of the land, that is the Schedule Ka property. From the order of the learned Munsif dated 8-9-1938 it appears that the pleaders representing the parties were heard and no objection was raised by any of them. The order of the learned Munsif runs thus: "Plaintiff No. 3 files a verified petition withdrawing the claim to the lands in Schedule 'Kha' with permission to sue afresh and also prays for expunging his name from the category of the plaintiffs. ORDER Heard pleaders. There can be no objection to the prayer. Let the plaint be amended as prayed for and the name of plaintiff No. 3 be expunged. The suit after this amendment will be continued to Schedule Ka property only for which the value already given, namely Rs. 160/- will be deemed sufficient. In view of the amendment the plaintiffs 1 and 2 now need that (not?) comply with the order No. 32 dated 8-9-38." The law only requires that the other plaintiffs should consent to the withdrawal, and it cannot be urged that the consent has to be given in any particular form. The conduct of the remaining plaintiffs together with the note in the order-sheet ("Heard pleaders. There can be no objection to the prayer") unmistakably goes to show that the remaining plaintiffs had consented to the withdrawal. I need not repeat that they could not refuse consent for the simple reason that they had no interest whatsoever in the particular portion of the land which had been claimed by the plaintiff No. 3. If the circumstances leading to that withdrawal are considered carefully, there can be no doubt left that the other plaintiffs had raised no objection and had practically given their consent to the withdrawal of the claim by the plaintiff No. 3. A Full Bench of this Court had held in 'Raj Kumar v. Ram Khelawan Singh', 1 Pat 90 (FB) that in all cases where a suit is allowed to be withdrawn with permission to bring a fresh suit on the same cause of action it must be presumed, in the absence of proof to the contrary, that the Court was satisfied that the conditions in Clauses (a) or (b) of Sub-rule (2) existed and that it was not sufficient for a party challenging such order merely to point out that no reasons were assigned by the Court in making the order. I think this principle has to be applied in this case, especially, when we find that the two sets of plaintiffs claimed different parcels of land, and the remaining plaintiffs proceeded with the trial without raising any objection on account of the withdrawal by the plaintiff No. 3 of his claim with regard to Schedule Kha lands. An order, even if it is an erroneous order, is not to be regarded as an order without jurisdiction so long as it is an order made by a Court of competent jurisdiction. On the facts which have emerged from the materials on the record, there is no reason for supposing that the order that was passed by the learned Munsif on 8-9-1938 is null and void. No argument was addressed to me so far as the withdrawal of the subsequent suit is concerned. I find from the order of the subsequent suit that the plaintiff was permitted to withdraw with liberty to bring a fresh suit on the same cause of action, provided he had been given such permission in the previous suit and provided he paid the costs of this suit. The learned Counsel has admitted that the costs were paid as directed by the Court.I am, therefore, of the opinion that this appeal is not fit to succeed, and I would dismiss it with costs.;