Hari Swarup, J. - (1.) This revision was referred to a larger Bench by the learned Single Judge at the time of the admission of the revision. The plaintiffs had filed a suit claiming one -third share in the crop grown on the disputed plot in 1371 Fasli and in the alternative a certain sum of money by way of mesne profits. The plaintiffs claimed to be the heirs of one Jhammanlal, who was a co -tenant with the contesting defendants. The defendants contested the suit on the ground, inter alia, that the plaintiffs were not the heirs of Jhammanlal and that the crop had not been raised by Jhammanlal. They denied the plaintiffs right to claim any share in the crop or to get mesne profits. The trial court dismissed the suit. The plaintiffs filed an appeal and in the appeal filed an application under Order 23, Rule 1(2), Civil P. C. with a prayer for withdrawal of the suit with liberty to bring a fresh suit. In the alternative the plaintiffs also prayed for withdrawal of the suit under Order 23, Rule 1(1), Civil P. C. The lower appellate court rejected the plaintiff's application. The present revision has been filed against that order.
(2.) The court below held that the suit or appeal did not suffer from any formal defect and that there was no other sufficient ground for allowing the appellants to institute a fresh suit for the subject -matter of the suit or part of the claim. It, therefore, came to the conclusion that provisions of Order 23, Rule 1(2) were not applicable and consequently no permission to withdraw the suit could be given. The plaintiffs had applied for withdrawal of the suit on the ground that in mutation proceedings the names of respondents Nos. 4 and 5 had been ordered to be mutated and hence it was necessary for the plaintiffs to institute a suit under Sec. 229B/ 209 of the U. P. Z. A. & L. R. Act The court below was, therefore, justified in holding that, in the circumstances of the case, the plaintiffs were not entitled to withdraw the suit with leave to file a fresh suit for the same subject -matter.
(3.) The court below also came to the conclusion that the plaintiffs had no right to withdraw the suit under Order 23, Rule 1 (1), Civil P. C. without leave of the Court at the appellate stage.;