Bibek Chaudhuri, J
1. Legal heirs and representatives of original defendant in Title Suit No.87 of 1993 being the substituted defendants are the appellants assailing the
judgment and decree of affirmation passed by the learned Additional District Judge, Fast Track, 1st Court, Krishnagar in Title Appeal No.87 of 2003
on 31st August, 2004.
2. The predecessor-in-interest of the substituted plaintiffs (hereafter referred to as the respondents) filed a suit for eviction and recovery of khas
possession against the predecessor-in-interest of the appellants in the 1st Court of learned Civil Judge (Junior Division), Krishnagar (at the relevant
point of time designated as the Munsif 1st Court) stating, inter alia, that all that peace and parcel of 2 decimal of land situated in Mouza Hatishala and
recorded in RS khatian No.1086 being plot No.968/2216 is a portion of entire 5 decimal of land in plot No.968 was originally owned by one Panchu
Sardar. The said Panchu Sardar took settlement of the said land from the erstwhile Zamindar. While possessing the said land, the original plaintiff
requested the said Panchu Sardar to settle 2 decimal of land in favour of him. Accordingly, the said Panchu Sardar settled 2 decimal of land out of 5
decimal of land in plot No.968 in favour of the plaintiff and accepted rent from him by issuing dakhilas. At the time of RS operation, the said 2 decimal
of land was recorded in the name of the original plaintiff in bata plot No.968/2216. After the abolition of intermediary rights over the estate by
operation of the West Bengal Estates Acquisition Act, the plaintiff became direct raiyat under the State of West Bengal and he used to possess the
said land paying rent to the Government of West Bengal. He also constructed a house over the suit property and has been possessing the same
openly, continuously, uninterruptedly and without any disturbance from anybody including the defendant. Accordingly the alternative case of the
plaintiff is that he had acquired good and indefeasable title over the suit property by way of adverse possession.
3. It is further stated by the plaintiff that while the plaintiff was in possession of the suit property, the defendant tried to disturb his possession which
compelled him to file a suit for permanent injunction against the defendant which was registered as Title Suit No.101 of 1984. However, the plaintiff
withdrew the said suit with the leave of the court. Subsequently, on 22nd April, 1990, the defendant forcibly and illegally dispossessed the plaintiff from
the suit property. It is further stated by the plaintiff that during LR operation, the suit property was recorded in the name of the plaintiff in draft Record
of Rights. However in column No.23 (remark column) of the said draft Record of Rights, the name of the defendant was illegally recorded by the
concerned authority. According to the plaintiff such recording of the name of the defendant in column No.23 is absolutely erroneous. It is alleged that
the defendant has no right, title and interest over the suit property. He illegally dispossessed the plaintiff sometimes in 1990 and accordingly he filed the
suit for eviction, recovery of khas possession of the suit property and other consequential reliefs.
4. The original defendant, namely Bireswar Biswas died during pendency of the suit, his legal heirs and representatives were duly substituted. They
contested the suit by filing a written statement. In the written statement the defendants/appellants specifically denied the case of the plaintiff. Specific
case of the defendants is that the suit property originally belonged to one Panchu Sardar. His name was recorded in CS Record of Rights. The said
Panchu Sardar left India for the then East Pakistan and exchanged his properties with one Aswini Kumar Mondal of village Hatishala. During RS
operation the said Aswini Kumar Mondal depended upon the plaintiff who used to manage the properties of the said Aswini Kumar Mondal. The
original plaintiff most illegally and surreptitiously recorded 2 decimal of land out of the said 5 decimal of land in plot No.968 by creating a bata plot
No.968/2216 in his own name. At the time of partition, Bireswar came to India and began to possess on plot No.969 and suit plot No.968/2216. The
original defendant constructed a house thereon and has been possessing the suit property since 1950 with the knowledge of the plaintiff and other
villagers. The plot No.968 was recorded in the name of Aswini Kumar Mondal. The original defendant exchanged plot No.968 with his own plot
No.921 with the said Aswini Kumar Mondal in the year 1984. Since then the original defendant and his family members being the substituted
defendants have been possessing the suit property. The plaintiff has no right, title and interest over the suit property. The plaintiff previously instituted
Title Suit No.101 of 1984 in the name of Aswini Kumar Mondal and the original defendant but the said suit was withdrawn therefore the suit filed by
the plaintiff was not maintainable. The defendants have also claimed title over the suit property by adverse possession. It is further claimed by the
defendants that the story made by the plaintiff in respect of taking settlement of 2 decimal of land out of plot No.968 from Panchu Sardar on payment
of yearly rent to Panchu Sardar and after the West Bengal Estates Acquisition Act coming into force the plaintiff paid rent to State of West Bengal
are false and concocted for the purpose of depriving the defendants from their ownership and possession over the suit property. So they prayed for
dismissal of the suit.
5. On the pleadings of the parties the trial court framed as many as 11 issues. In order to prove their respective cases, one Basudeb Biswas son of
original plaintiff deposed as PW1. One Binay Kumar Basu resident of village Hatishala deposed in the trial court on behalf of the plaintiff as PW2.
One Anima Biswas, substituted defendant No.1Gha deposed on behalf of the defendants as DW1. DW2, DW3 and DW4 are residents of village
Hatishala who supported the case of the defendants.
6. Certain documents were marked exhibits on behalf of both the parties.
7. The learned trial judge on careful perusal of the evidence on record both oral and documentary and having heard the learned Advocates for the
parties, decreed the suit on contest without cost.
8. The defendants challenged the said judgment and decree passed in Title Suit No.87 of 1993 in the Court of the learned Additional District Judge,
Fast Track, 1st Court at Krishnagar by filing Title Appeal No.87 of 2003. The learned Additional District Judge by his judgment and decree dated 31st
August, 2004 dismissed the appeal on contest and thereby affirming the judgment and decree passed by the learned trial court.
9. The aforesaid judgment and decree passed by the First Appellate Court is under challenge in the instant appeal. It is found from the record that the
instant appeal came up for hearing under Order XLI Rule 11 of the Code of Civil Procedure before the Hon’ble Division Bench and vide order
dated 3rd September, 2007, the Hon’ble Division Bench admitted the appeal formulating the following substantial question of law:-
 “Whether or not both the lower courts below erred in not holding that the present suit out of which the present appeal arises is not maintainable
in view of the fact that the earlier suit being Title Suit No.101 of 1984 was withdrawn by the respondents in the present appeal without leave of the
Court and the present suit has been preferred by the said respondents on the same subject matter and taking into consideration the effect of the
provisions under Order 23 Rule 4 of the Code of Civil Procedure.â€
10. During the trial of the suit, certified copy of the plaint of Title Suit No.101 of 1984 filed by the original plaintiff of Title Suit No.87 of 1993 out of
which the present appeal arises has been marked as Exhibit-D at the instance of the present appellants. It is ascertained from the said exhibit that
Title Suit No.101 of 1984 was filed against the predecessor-in-interest of the present appellants as well as Sri. Aswini Kumar Mondal, the original
owner of plot No.968 who got title over the suit property by exchange of property with Panchu Sardar after partition. In the said suit it is alleged that
the original defendant of the Title Suit No.87 of 1993 was the step-brother of the plaintiff. The said defendant taking advantage of the Record of
Rights in respect of 03 decimal of land in plot No.968 with 2 rooms thereon in the name of the defendant No.2 executed a registered deed of
exchange on 6th April, 1984 with the said defendant No.2 Aswini Kumar Mondal and exchanged the said 03 decimal of land in plot No.968 with
another land measuring about 28 decimal belonging to the defendant No.1. Taking advantage of the said deed of exchange, the defendant was raising
obstruction in peaceful enjoyment of the plaintiff’s property measuring about 02 decimal of land in plot No.968/2216. Therefore, the plaintiff
prayed for declaration of title in respect of the said plot No. 968/2216 and permanent injunction against the defendant.
11. Plaintiff filed an application on 22nd December, 1987 in Title Suit No.101 of 1984 stating, inter alia, that he and the original defendant are brothers
by relation. The plaintiff was suffering from various illness at the relevant point of time and he does not want to proceed with the said suit accordingly
he prayed for unconditional withdrawal of the suit.
12. From the judgment of the trial court it is found that Title Suit No.101 of 1984 was disposed of as withdrawn.
13. Mr. Milon Bhattacharyya, learned Senior Counsel on behalf of the appellants at the outset draws my attention to the various provisions of Order
XXIII Rule 1 of the Code of Civil Procedure. It is submitted by Mr. Bhattacharyya that Rule 1 of Order XXIII speaks of withdrawal of suit or
abandonment of part of claim. Rule 1 of Order 23 refers to two types of cases, viz, (i) where the plaintiff withdraws a suit or part of a claim with the
permission of the Court to bring a fresh suit on the same subject matter, and (ii) where the plaintiff withdraws a suit without permission of the Court.
He further submits that withdrawal of suit without taking leave to sue fresh on the same cause of action bars a fresh suit on the selfsame subject
matter. The plaintiff would be debarred from filing a fresh suit on the selfsame cause of action on which the earlier suit was filed and withdrawn
without leave of the Court. Indisputably, the original plaintiff instituted Title Suit No.101 of 1984 and the said suit was withdrawn in the year 1987. The
earlier suit was for declaration of title and permanent injunction. As no leave was taken to institute the subsequent suit being Title Suit No.87 of 1993,
the subsequent suit is barred under Sub-rule 4 of Rule 1 of Order XXIII of the Code of Civil Procedure.
14. Mr. Bhattacharyya, learned Senior Counsel on behalf of the appellants has substantiated his argument contending, inter alia, that an order of
withdrawal of an earlier suit between the same parties operates as res judicata in respect of the subsequent suit and the subsequent suit is barred
under Section 11 of the Code of Civil Procedure. In support of his contention, Mr. Bhattacharyya has placed his reliance on the following decisions of
the Hon’ble Supreme Court:-
(1) Syed Mohd. Salie Labbai (Dead) by L. Rs. & Ors vs. Mohd. Hanifa (Dead) by L. Rs. & Ors : AIR 1976 SC 1569.
(2) Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior & Ors : AIR 1987 SC 88.
(3) H.N. Jagannath & Ors. vs. State of Karnataka & Ors : (2018) 11 SCC 104.
(4) Mohhamed Khan (Dead) through Legal Representative vs. Ibrahim Khan & Anr. : (2018) 14 SCC 495.
(5) Anil Kumar Singh vs. Vijay Pal Singh & Ors.: (2018) 12 SCC 584.
15. In Sarguja Transport Service (supra) the question that came up for consideration before the Hon’ble Supreme Court is whether a petitioner
after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without permission to institute a fresh
petition can file a fresh writ petition in the High Court under that Article. The Hon’ble Supreme Court was pleased to hold that the principle
underlying Rule 1 of Order XXIII of the Code of Civil Procedure should be extended in the interests of Administration of Justice to cases of
withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. It would also discourage the litigant from indulging
in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the
High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a
fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not
amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in
respect of the cause of action relied on in the writ petition when he withdraws it without such permission. The Hon’ble Supreme Court has culled
out the only exception to this rule in respect of a writ in the nature of habeas corpus or enforcement of fundamental right guaranteed under Article 21
of the Constitution of India.
16. In Paragraph 14 of the H.N. Jagannath & Ors. (supra) it is observed by the Hon’ble Supreme Court as hereunder:-
 “Whenever the suits are withdrawn, respondent no. 4 has not sought any liberty to approach the civil court once again. Thus, it was not open for
respondent no. 4 to approach the civil court repeatedly for the very reliefs. Consistently, the civil court on three occasions has negative the contention
of the appellant.â€
17. Factual background of Anil Kumar Singh (supra), in my humble view, is required to be stated for proper appreciation. The plaintiff instituted a suit
for permanent injunction restraining respondent No.1 from interfering in his possession over portion of the suit land. In the said suit the trial court
granted ex parte temporary injunction. During the pendency of the suit, parties claimed to have entered into a compromise and the respondent No.1
agreed not to interfere in the appellant’s possession. Subsequently, the appellant (plaintiff) filed an application to withdraw the suit under Order
Rule 1. The trial court disposed of the said application and the suit was dismissed as withdrawn. The respondent No.1 preferred a revision against the
said order before the learned Additional District Judge. The revisional application was dismissed. The respondent No.1 moved the Allahabad High
Court under Article 227 of the Constitution of India. The High Court allowed the respondent’s petition to set aside the orders of the learned
Additional District Judge and the trial court and also directed the appellant (plaintiff) to place respondent No.1 (defendant No.1) in possession of the
suit property. In paragraph 25 of the said decision the Hon’ble Supreme Court held, “However, when the plaintiff applies for withdrawal of the
suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then, in such event,
the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek
withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided in sub-rule (3) of Rule 1.
18. Mr. Bhattacharyya draws an impression by referring to the decision of the Hon’ble Supreme Court in Mohhamed Khan (supra) that the order
of withdrawal of the earlier suit filed by the original plaintiff being Title Suit No.101 of 1984 without obtaining leave to file a fresh suit on the selfsame
cause of action operates as res-judicata under Section 11 of the Code of Civil Procedure.
19. I am, however not in a position to accept the above submission made by the learned Senior Counsel on behalf of the appellants. It is needless to
say that Order XXIII Rule 1 of the Code of Civil Procedure deals with withdrawal of suits. It enacts that where the plaintiff withdraws the suit
abandons his claim without leave of the court, he will be precluded from instituting a fresh suit in respect of the same cause of action. The distinction
between res judicata and withdrawal of suit lies in the fact that while in the former, the mater is heard and finally decided between the parties, in the
latter the plaintiff himself withdraws or abandons his claim before it is adjudicated on merits. The plea of res judicata to be specifically pleaded and
proved, and if a party fails to raise such plea it will be deemed to have been waived. Such plea cannot be raised for the first time at the stage of
appeal or for the first time in appeal before this Court. This has been held in ITC Limited vs. Commissioner Central Excise, New Delhi reported in
AIR 2005 SC 1370. The doctrine of res judicata operates against both the parties to the suit and not against one alone. On the contrary the order of
withdrawal of a suit under Order 23 Rule 1 operates as against the plaintiff alone. It is necessary to mention that before a plea of res judicata can be
given effect, the following conditions must be proved â€" (1) that the litigating parties must be the same. (2) That the subject matter of the suit also
must be identical. (3) That the matter must be finally decided between the parties and (4) that the suit must be decided by a court of competent
jurisdiction.
20. Withdrawal of a suit under Order XXIII operates completely in a different field and does not decide any issue of either fact or law finally. If the
suit is found to be defective or claim is either settled or legally barred, the plaintiff can pray for withdrawal of suit or abandonment of part of claim
during the pendency of the suit before it is finally decided. Therefore, in case of withdrawal of a suit there is no finality of the dispute between the
parties. As a matter of public policy, the plaintiff is however debarred from filing a fresh suit on the selfsame cause of action if the suit is withdrawn
under Order XXIII Rule 1 of the Code of Civil Procedure. Therefore, the principle of res judicata is not applicable in a suit withdrawn under Order 23
Rule 1 of the Code of Civil Procedure.
21. Mr. Bhattacharyya further submits that the learned First Court of Appeal failed to consider that in the earlier suit (T.S 101 of 1984), the plaintiff
prayed for declaration of his title over the suit property and permanent injunction. In the subsequent suit the plaintiff prayed for declaration of title and
recovery of khas possession in respect of the suit property. The cause of action in both the suits are same and identical. The learned First Appellate
Court failed to appreciate the evidence on record on the issue as to whether Title Suit No.87 of 1993 is barred under Order 23 Rule 1 of the Code of
Civil Procedure. Therefore, the judgment delivered by the First Appellate Court suffers from perversity. Under such circumstances, the High Court
can interfere the finding of the First Appellate Court as it constitute the substantial question of law in support of his contention Mr. Bhattacharyya
refers to a decision of the Hon’ble Supreme Court in the case of Marai Colaco & Anr. vs. Alba Flora Herminda D’Souza & Ors. reported in
(2008) 5 SCC 268. On the selfsame issue he also refers to State of Rajasthan & Ors. vs. Shiv Dayal & Anr. reported in (2019) 5 WBLR (SC) 276
and submits that even concurrent finding of fact by the learned trial court and the learned First Appellate Court can be assailed in second appeal on
the ground that it was recorded de hors the pleadings or it was based on no evidence or it was recorded against any provision of law and lastly, the
decision is one which no judge acting judicially could reasonably has reached.
22. Thus, Mr. Bhattacharyya concludes that both the Courts below substantially erred in law in holding Title Suit No.87 of 1993 maintainable without
considering the fact that the earlier suit between the parties on same cause of action was withdrawn under Order 23 Rule 1 of the Code of Civil
Procedure.
23. Mr. Amal Krishna Saha, learned Advocate for the respondents on the other hand submits that Title Suit No.87 of 1993 was filed by the original
plaintiff alleging, inter alia, that predecessor-in-interest of the present appellants dispossessed him from the suit property on 22nd April, 1990. The Title
Suit No.101 of 1984 was filed by the plaintiff alleging, inter alia, that taking advantage of an erroneous recording in LR Record of Rights in column
No.23 that the original defendant was in adverse possession (Jor dang) in respect of plot No.968/2216, the original defendant tried to disturb
possession of the plaintiff over the suit property. Thus, the cause of action in Title Suit No.101 of 1984 arose when the plaintiff was threatened to be
dispossessed. The said suit was withdrawn in the year 1987 after an amicable settlement was arrived at by and between the original plaintiff and the
original defendant. However it is alleged by the plaintiff that he was dispossessed from the suit property. He claimed ownership over the suit property
on the basis of patta issued by one Panchu Sardar, the original owner of the suit property. After obtaining patta the plaintiff was in possession of the
suit property on payment of rent to the superior owner. After the West Bengal Estates Acquisition Act coming into force, the plaintiff’s name was
recorded in respect of the suit property as raiyat. He went on possessing the suit property by paying taxes to the State of West Bengal. All these
documents were marked exhibits. The question of possession and ownership being question of fact, cannot be agitated in the second appeal.
Moreover, no substantial questions of law on perversity of the judgment for non consideration of material evidence or finding of fact without pleadings
or evidence or misreading of evidence on record is alleged in the instant appeal by the appellants. The appeal was admitted only on the solitary ground
as to whether the Title Suit No.87 of 1993 is barred under Order 23 Rule 1 of the Code of Civil Procedure. Therefore, this Court is under obligation to
consider only the substantial question of law formulated by the Division Bench of this Court.
24. It is submitted by Mr. Saha, learned Advocate for the respondents that the cause of action in this suit arose on 22nd April, 1990 when the plaintiff
was dispossessed from the suit property. Therefore, the cause of action of Title Suit No.101 of 1984 and the Title Suit No.87 of 1993 is not identical
but completely distinct and separate. Thus, the suit is not barred under Order XXIII Rule 1 of the Code of Civil Procedure. Having heard the learned
Advocates for the appellants and the respondent and on perusal of the entire materials on record and having regard to the substantial question of law, I
am of the view that the provision of Order
23 Rule 1 of the Code of Civil Procedure is required to be quoted for proper adjudication of the substantial question of law formulated by the Division
Bench of this Court:-
Order XXIII R.1. Withdrawal of suit or abandonment of part of claim
 (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit
nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule
(1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of
the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the court is satisfied-
(a) that a suit must fail by reason of some formal defect,
or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, no such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh
suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1),
or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),
he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such
part of the claim.
(6) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1),
or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.
25. The words “subject matter†used in Order 23 Rule 1 (4) means the bundle of facts which have to be proved in order to entitle the plaintiff to
claim relief by him. Where the cause of action and relief claimed in the second suit are not the same as the cause of action and relief claimed in the
first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. This has been held by the
Supreme Court in Vallabh Das vs. Dr. Madanlal & Ors reported in AIR 1970 SC 987. Mr. Saha rightly has pointed out that at the time of filing of
Title Suit No.101 of 1984 the plaintiff had no occasion to pray for recovery of possession as he alleged that he was dispossessed from the suit
property on 22nd April, 1990 and he prayed for recovery of possession in this suit. I have carefully considered the written statement filed by the
appellants as defendants and specially paragraph 18 and 19 of the said written statement and I have not found any specific denial of such allegation
made by the plaintiff with regard to his dispossession from the suit property. Therefore, the cause of action of the earlier suit and the cause of action
of Title Suit No.87 of 1993 are altogether distinct, different and separate. In view of such circumstances, it cannot be held that both the earlier suit and
Title Suit No.87 of 1993 were filed on selfsame “subject matter†by the plaintiff. In view of such circumstances, I have no other alternative but to
hold that the suit is not barred under Order 23 Rule 1(4) of the Code of Civil Procedure.
26. The argument advanced by the learned Senior Counsel on behalf of the appellants on applicability of Section 11 of the Code of Civil Procedure
does not hold good in view of my observation made hereinabove.
27. I have carefully perused the judgment of both the Courts below and I do not find the same to be bad on the ground of perversity. For the reasons
stated above, I do not find any substantial question of law involved in the instant appeal and the substantial question of law formulated by the Division
Bench of this Court is answered in the negative.
28. As a result the instant second appeal is dismissed on contest, however without cost.
29. Judgment and decree passed in Title Appeal No.87 of 2003 by the learned Additional District Judge, Fast Track 1st Court, Krishnagar affirming
the judgment and decree dated 30th August, 2003 passed in Title Suit No.87 of 1993 by the learned Civil Judge (Junior Division), 1st Court at
Krishnagar is affirmed.
30. The appellants are directed to deliver peaceful possession of the suit property within 60 days from the date of receipt of lower court record, failing
which the respondents are at liberty to put the decree drawn by the trial court in execution.
