Chandrashekhar, J. - (1.) The petitioner is aggrieved of order dated 01.10.2005 passed in Partition Suit No. 81 of 2002 by which his application under Order XXIII Rule 3 CPC has been rejected and the application filed by the defendant nos. 4, 5 and 6 under Order XXIII Rule 1-A r/w Order 1 Rule 10 CPC has been allowed.
(2.) Partition Suit No. 81 of 2002 has been instituted by the petitioner for a preliminary decree for partition to the extent of 1/6th share for him in the suit schedule property; he is the sole plaintiff. The defendants have filed written statement raising various objections to the maintainability of the suit, however, it is not denied that the parties are descendants of a common ancestor namely, Kanhaiya Singh. During trial of the suit after examining his witnesses, the plaintiff filed an application under Order XXIII Rule 3 CPC for withdrawing the suit with liberty to him to institute a fresh suit. This application was opposed by the defendants on the ground that there is no formal defect in the suit on account of which the suit may fail and for that reason the plaintiff may be permitted to withdraw the suit. The defendant nos. 4, 5 and 6 have filed an application under Order XXIII Rule 1-A for their transposition as plaintiffs. This application has been allowed by the trial judge.
(3.) Contention raised on behalf of the petitioner is that the defendants who have specifically denied the claim for partition cannot be transposed as co-plaintiffs in the suit.;