Kailash Nath Misra, J. - (1.) THIS civil revision under Section 115 of the Code of Civil Procedure, in short 'the Code', is directed against the order dated 10th July, 1986 passed by Addl. Civil Judge, Barabanki in Regular Suit No, 59 of 1983, rejecting the application moved by the plaintiff revisionist under Order 23 Rule 1(3) of the Code, for withdrawal of the suit with liberty to file fresh suit on the same cause of action. The above noted suit was filed by the plaintiff Sajid Ali in the Court of Civil Judge, Barabanki seeking declaration to the effect that the sale deed dated 11 -2 -1965/12 -2 -1965, executed in favour of the defendant Smt. Zaibulnishan by one Murli was a Benami transaction and that the share of the plaintiff in the Bhumidhari land in question is 12/16 and in the house situated thereon he holds a share of 11/16. The plaintiff had based his claim in the suit on the ground that he and his deceased father Mashook Ali were the real purchasers of the property in suit and they had paid sale consideration in equal shares to the vendor and it was not paid by the vendee Smt. Zaibul Nishan in whose favour the benami sale deed was executed. The plaintiff thus sought the above declaration basing his cause of action as alleged in the plaint by denial of title of the defendant on the basis of the aforesaid Benami sale deed and that in March, 1983, defendant wanted to sell the property without permission of the plaintiff and by denying the plaintiff's right. This suit was initially filed against Smt. Zaibulnishan alone. It was contested by her and a plea was raised to the effect that the suit was bad for non -joinder of necessary parties and issue No. 8 was also framed on that plea which reads as under: - - Whether the suit is bad for non -joinder of Shakir Ali as alleged in para 36(A) of the U.P.?
(2.) IT appears that the then learned Civil Judge Sri B.K. Srivastava, vide order dated 31 -5 -1985 decided the said issue No. 8 m favour of the plaintiff by accepting the plea of the plaintiff that the aforesaid sale deed was a Benami transaction. It is astonishing to note as to how the learned Civil Judge while dealing with the aforesaid issue No. 8, proceeded to record a finding on the crucial question involved in the suit as to whether the sale deed in question was Benami transaction or not. No findings could legally be recorded on this crucial question while deciding the said preliminary issue No. 8. Such an unwarranted manner in recording a finding on the crucial question involved in the suit is apt to cause prejudice to the parties and on going through the finding recorded on issue No. 8, I find that such a finding could not be recorded while dealing with issue No. 8 resulting in great prejudice to the parties. It was urged by the learned counsel for the revisionist that since evidence was led on the point and, as such, learned Civil Judge could record a finding on the question as to whether the sale deed executed in favour of defendant Smt. Zaibulnishan was a Benami transaction or not. I am unable to agree with this contention because while dealing with the preliminary issue about the suit being bad for non joinder of parties it would be unwarranted in law to deal with the crucial issue involved in the suit although some evidence on the point must have been led by the parties on record at that time. The learned Civil Judge has thus acted illegally and with material irregularity in exercise of jurisdiction in recording a finding on the said point while deciding the aforesaid preliminary issue No. 8. The findings, cannot be sustained and deserve to be ignored while deciding the suit on merits and considering said crucial question about the sale deed being Benami or not. It was pointed out by the learned counsel of the plaintiff revisionist that although a finding was recorded on the aforesaid issue No. 8, in favour of the plaintiff, but an application was moved by the plaintiff for impleadment of his brother Shakir Ali and his sister Smt. Zubaida Khatoon as defendants in the suit. These persons were impleaded as defendants 2 and 3 and they also contested the suit by filing their written statement. Subsequently, the plaintiff had moved an application on 8 -7 -1986 under Order 23, Rule 1 of the Code for withdrawal of the suit, a copy of which has been annexed as Annexure 3. It has been averred in this application that on a portion of plot in suit No. 87/M, area 8 biswas situate in village Paiser Pargana and Tahsil Nawabganj, District Barabanki, lying within the Municipal limits of Nawabganj, the disputed house is situated and the sale deed dated 11 -2 -1965/12 -2 -1965 in respect of said property is Benami. The although a finding in favour of the plaintiff in respect of it has been recorded by the court on 31 -5 -1985. It has further been averred that a declaration under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act in respect of the land in dispute would be required to be sought of from the revenue court. Thus with these allegations a prayer was made seeking withdrawal of the suit with permission to file fresh suit. This application was opposed by the defendants and after hearing parties, learned Addl. Civil Judge Sri S.P. Shukla rejected the application by the impugned order dated 10 -7 -1986. This order has been challenged in this revision.
(3.) LEARNED counsel for the plaintiff -applicant urged that the court below erred in not permitting the suit to the withdrawn with liberty to file a fresh suit as according to him there are sufficient grounds to allow plaintiff to withdraw the suit and institute a fresh suit after getting declaration from the revenue court under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act. Learned counsel has further contended that the suit suffered from formal defect as in the absence of declaration under Section 143 of the said Act, the present suit would not be maintainable in the civil court and on the ground of such formal defect the suit would fail. I do not find any merit in these contentions.;